Opinion
1 CA-CR 11-0244
11-29-2011
STATE OF ARIZONA, Appellee, v. ELIZABETH ANNE CISZ, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix DeRienzo & Williams, P.L.L.C. By Craig Williams Attorneys for Appellant Prescott Valley
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CR20090153
The Honorable Cele Hancock, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Linley Wilson, Assistant Attorney General
Attorneys for Appellee
Phoenix
DeRienzo & Williams, P.L.L.C.
By Craig Williams
Attorneys for Appellant
Prescott Valley
WINTHROP, Chief Judge
¶1 Elizabeth Anne Cisz ("Appellant") appeals the trial court's decision to revoke her probation and sentence her to incarceration in the Arizona Department of Corrections ("ADOC"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the trial court's determination, and resolve all reasonable inferences against Appellant. See State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).
¶2 On March 16, 2009, pursuant to a plea agreement, Appellant was found guilty of misconduct involving weapons (as a prohibited possessor), a class four felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-3102(A)(4) (Supp. 2010). At the time of the crime, Appellant was on standard probation. The trial court suspended sentencing and placed Appellant on three years' intensive probation supervision, requiring inter alia, that as a condition of her probation she "[n]ot possess or control any firearms, ammunition, or prohibited weapons as defined in A.R.S. § 13-3101." She was further advised and acknowledged that if she violated any of the conditions of her probation, her probation could be revoked and she could be sentenced to prison.
We cite the current version of the applicable statutes if no revisions material to our analysis have since occurred.
See A.R.S. § 13-3101 (2010).
Pursuant to subsequent petitions to modify filed by her probation officer, Appellant's level of supervision was modified from Level I to Level II to Level III of intensive probation, and then to standard probation. See A.R.S. § 13-917(A) (2010).
¶3 On approximately February 10, 2011, after accessing Appellant's Facebook account, her probation officer became aware for the first time that Appellant had posted a photograph showing her holding what appeared to be a long "pump action type firearm" while standing with a handgun in a holster on her hip.Before confronting Appellant about the apparent violation of her probation, the probation officer consulted another probation officer who is "an avid gun collector and hunter" and "very up on firearms." The other officer informed Appellant's probation officer that the long firearm held by Appellant in the photograph "is a Browning Sweet 16 shotgun." When questioned whether the "shotgun" might actually be a "pellet firing weapon[]," the other officer explained that, based on the size of the barrel, it was "not a pellet gun." Appellant's probation officer conducted a search on Google and concluded from the various pictures he viewed that the long firearm held by Appellant was "an identical match" to a Browning Sweet 16 shotgun. Because he could only see the handle of the sidearm, the other probation officer could not identify the type of revolver shown in the holster.
The photograph was admitted into evidence at Appellant's probation violation hearing.
Appellant takes issue with the fact that her probation officer, rather than the other officer, testified to this statement at her probation violation hearing. The court, however, was allowed to receive hearsay evidence at the hearing. See Ariz. R. Crim. P. 27.8(b)(3).
¶4 A few days later, Appellant went to see her probation officer for a regular office visit, and the officer inquired about the photo. Appellant admitted posing for the photograph while on probation and posting the photo on her Facebook account on November 16, 2010, but she explained that the photo had been taken for "a magazine shoot" and the weapons in her possession in the photograph "were just pellet guns." The probation officer challenged that assertion based on his previous research, and he informed Appellant that he was taking her into custody and would file a petition to revoke her probation.
¶5 On February 18, 2011, a petition to revoke Appellant's probation was filed. In the petition, Appellant's probation officer alleged as follows:
This officer acquired a photo off of Facebook showing the defendant holding, what appears to be, a Browning Sweet 16 shotgun and a revolver in a holster on her right hip. On February 18, 2011, the defendant admitted to holding the weapons and taking the photo in the Fall of 2010 while on probation.Appellant denied the allegations of the petition, and the court scheduled a probation violation hearing for March 15, 2011.
¶6 At the probation violation hearing, Appellant's probation officer testified that one of the conditions of Appellant's probation was to not possess or control any firearms, ammunition, or prohibited weapons as defined in A.R.S. § 13-3101, and the petition to revoke had been based on the allegation that Appellant had violated that condition of her probation. The probation officer testified that it was his understanding that a pellet gun, as well as a Browning Sweet 16 shotgun and a revolver, would be prohibited under the terms of Appellant's probation.
¶7 Counsel for Appellant asserted that the weapons with which Appellant posed were actually pellet guns and therefore did not fall within the definition of a "firearm" or "prohibited weapon" as provided in A.R.S. § 13-3101. Appellant's counsel conceded, however, that if the definition of a "firearm" provided in A.R.S. § 13-105(19) (2010) applied to the petition to revoke, Appellant would be in violation of her probation even if the weapons were pellet guns. At the close of the hearing, the court took the matter under advisement and ordered counsel for each side to submit a supplemental brief regarding what constituted a weapon prohibited under the terms of Appellant's probation.
See A.R.S. § 13-3101(A)(4), (8).
¶8 In her brief, Appellant argued that the weapon she held in the photograph was a pellet gun, pellet guns do not expel a projectile by use of an explosion, and thus the weapon did not meet the definition of a firearm or prohibited weapon as provided in A.R.S. § 13-3101. Although she again conceded that under the definition of a firearm in A.R.S. § 13-105, "her defenses to the allegation in the petition would have been severely limited," she further argued that she was not subject to A.R.S. § 13-105, ostensibly because that statute was not cited in the condition of her probation at issue. She also maintained that the revolver in the holster on her hip was "a fake pistol."
¶9 In its brief, the State argued in part that, even if the weapons at issue were pellet guns, a pellet gun qualifies as a firearm, and A.R.S. § 13-3101 must be read in conjunction with A.R.S. § 13-105.
¶10 After considering the briefs filed by the parties, the court found that Appellant had violated the terms of her probation. Although it concluded that the weapons shown in the photo were pellet guns as asserted by Appellant, the court reasoned that A.R.S. § 13-3101 must be read in harmony with A.R.S. § 13-105, and that for Appellant to hold a pellet gun, which this court has found may qualify as a deadly weapon, see State v. Cordova, 198 Ariz. 242, 243-44, ¶ 5, 8 P.3d 1156, 1157-58 (App. 1999), should be prohibited. At the April 4, 2011 disposition hearing, the court granted the State's petition to revoke Appellant's probation and sentenced her to a presumptive term of 2.5 years' imprisonment in ADOC, with credit for 96 days of presentence incarceration.
¶11 Appellant filed a timely notice of appeal. We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
ANALYSIS
¶12 On appeal, Appellant argues that the trial court abused its discretion in revoking her probation. We disagree.
¶13 In general, we review for an abuse of discretion a trial court's determinations with respect to the revocation of an appellant's probation. See State v. Portis, 187 Ariz. 336, 338, 929 P.2d 687, 689 (App. 1996). To revoke an appellant's probation, the State need only establish a probation violation by a preponderance of the evidence. State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980) (citation omitted). We will uphold the court's finding of a probation violation unless that finding is arbitrary or unsupported by any theory of the substantial evidence. Id. It is for the trial court to resolve conflicts in the evidence and to assess the credibility of witnesses. State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999).
¶14 In reaching our determination, we review de novo the interpretation of statutory and contract language. See, e.g.,Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 17, 226 P.3d 411, 415 (App. 2010). When interpreting statutory language, we seek first to discern the intent of the legislature. State v. Jernigan, 221 Ariz. 17, 19, ¶ 9, 209 P.3d 153, 155 (App. 2009). The legislature's intent may be determined "by considering the statutes as a whole and giving harmonious effect to all sections." Id.at 20,¶ 15, 209 P.3d at 156 (citation omitted). "Statutes on the same subject matter are to be construed in harmony together." Id.(citation omitted). When statutory language gives rise to different interpretations, we adopt the interpretation most harmonious with the statutory scheme and legislative purpose. Saenz v. State Fund Workers' Comp. Ins., 189 Ariz. 471, 474, 943 P.2d 831, 834 (App. 1997) (citing State v. Pinto, 179 Ariz. 593, 596, 880 P.2d 1139, 1142 (App. 1994)). In our review, we may "examine the policy behind the statute and the evil it seeks to remedy." Id. (quoting Pinto, 179 Ariz. at 596, 880 P.2d at 1142).
¶15 Additionally, we treat a plea agreement as a contract, and generally apply principles of contract interpretation to that agreement. Coy v. Fields, 200 Ariz. 442, 445, ¶ 9, 27 P.3d 799, 802 (App. 2001) ("Plea agreements are contractual in nature and subject to contract interpretation." (citations omitted)). Further, "[a] valid statute is automatically part of any contract affected by it, even if the statute is not specifically mentioned in the contract." Cypress on Sunland Homeowners Ass'n v. Orlandini, 227 Ariz. 288, 298-99, ¶ 38, 257 P.3d 1168, 1178-79 (App. 2011) (quoting Higginbottom v. State, 203 Ariz. 139, 142, ¶ 11, 51 P.3d 972, 975 (App. 2002)); see also Smith v. Superior Equip. Co., 102 Ariz. 320, 324, 428 P.2d 998, 1002 (1967) ("[I]t is a general rule of law that when the Legislature adopts a statute governing contracts of any nature, that statute ipso facto becomes a part of the contract, and the latter will be construed as though the statute were written into it." (citation omitted)). We will affirm the trial court's ruling if the result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984).
¶16 In this case, Appellant (as well as her counsel and the prosecuting attorney) signed a plea agreement, in which she agreed to plead guilty to misconduct involving weapons and the State agreed to stipulate that Appellant would be eligible for probation. Although it did not explicitly include the condition at issue, the plea agreement referenced the terms and conditions of probation, stating that the court could reject the plea if it found any of the terms and conditions of probation inappropriate. Appellant (and the court) then signed the form entitled "Uniform Conditions of Supervised Probation," which included among its terms the condition of probation at issue.Accordingly, the terms and conditions of probation were incorporated into Appellant's plea agreement, and as a condition of her probation, Appellant was contractually obligated to "[n]ot possess or control any firearms, ammunition, or prohibited weapons as defined in A.R.S. § 13-3101." The State asserts that Appellant violated her probation by possessing a firearm.
Appellant signed the form under the section entitled "Receipt and Acknowledgment," which stated as follows:
I hereby acknowledge receipt of the conditions of probation and any attached addenda. I understand that a violation of any of the conditions could result in the revocation of my probation and the court may impose sentence upon me in accordance with the law. As a further condition, I waive extradition for any probation revocation proceedings in this matter.
¶17 Under A.R.S. § 13-3101(A)(4), a "firearm" is defined as "any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition." (Emphasis added.) The term "explosive" is also defined in A.R.S. § 13-3101 to mean "any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives." A.R.S. § 13-3101(A)(3). Assuming arguendo that a pellet gun does not expel a projectile by means of an explosive as that term is defined in A.R.S. § 13-3101(A)(3), if the definition of a firearm is restricted to that provided in A.R.S. § 13-3101(A)(4), a pellet gun would not qualify as a firearm.
But see Commonwealth v. Sterling, 496 A.2d 789, 792 (Pa. Super. Ct. 1985) (holding that a carbon dioxide ("CO2") pellet gun is a firearm under the Pennsylvania sentencing code because "[a] carbon dioxide powered gun expels a projectile by the action of an explosive or the expansion of gas").
¶18 Under A.R.S. § 13-105(19), however, "'[f]irearm' means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases, except that it does not include a firearm in permanently inoperable condition." (Emphasis added.) Thus, under § 13-105(19), a pellet gun may qualify as a firearm.See Cordova, 198 Ariz. at 243-44, ¶ 5, 8 P.3d at 1157-58 (relying on § 13-105 to hold that a pellet gun that used CO2 cartridges to propel the pellets was a firearm, and thus a "deadly weapon," for the purposes of an aggravated assault conviction and dangerous nature findings).
Further, as we have noted, Appellant's counsel conceded at the revocation hearing that if the definition of a firearm provided in A.R.S. § 13-105(19) applied, Appellant would be in violation of her probation even if the weapons were pellet guns.
A "deadly weapon" is "anything designed for lethal use, including a firearm." A.R.S. § 13-105(15); accord A.R.S. § 13-3101(A)(1).
Appellant asserts on appeal that "neither of the alleged weapons were seized, inspected, nor entered into evidence," and insinuates that the weapons she acknowledged were "pellet guns" might not have utilized CO2 and/or might have been in permanently inoperable condition. Appellant did not raise these speculative arguments below. To preserve an issue for appeal, a defendant must clearly raise that specific issue before the trial court. See State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). If a defendant fails to raise an issue below, review is forfeited absent fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail under fundamental error review, an appellant must prove that the trial court erred, the error was fundamental, and the error caused her prejudice. See id. at 567-68, ¶¶ 19-26, 115 P.3d at 607-08; State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) (recognizing that before the reviewing court engages in fundamental error review, it must first conclude that the trial court committed some error). Further, a defendant bears the burden to demonstrate prejudice and may not rely on mere speculation to carry that burden. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). In this case, Appellant has not shown that error occurred. See State v. Rosthenhausler, 147 Ariz. 486, 493, 711 P.2d 625, 632 (App. 1985) ("[T]he burden is upon appellant to come forward with evidence establishing a 'reasonable doubt' as to the operability of the firearm.").
We also find Appellant's invocation of the corpus delicti rule for the first time on appeal unavailing, especially given the fact of a corroborating photograph and that Appellant was not actually convicted of a crime associated with possession of the weapons at issue. See State v. Lay, 26 Ariz. App. 64, 65, 546 P.2d 41, 42 (1976) (holding that the factual basis for probation revocation may be found wholly in a probationer's admissions); Ariz. R. Crim. P. 27.8(b)(3); cf. State v. Morgan, 204 Ariz. 166, 170, ¶ 15, 61 P.3d 460, 464 (App. 2002) ("A defendant may not be convicted of a crime based on an uncorroborated confession without independent proof of the corpus delicti, or the 'body of the crime.'" (emphasis added; citations omitted); State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983) ("Only a reasonable inference of the corpus delicti need exist before a confession may be considered." (citation omitted)).
¶19 Appellant argues that, because the condition of her probation at issue references only A.R.S. § 13-3101, she should not be held responsible for a possible violation of that condition based on the definition of a firearm contained in A.R.S. § 13-105. We disagree that the condition of probation at issue limited the definition of a firearm to that provided in A.R.S. § 13-3101. Appellant proposes to read the "as defined in A.R.S. § 13-3101" language of the probation condition as applying to each of the terms in the condition - firearms, ammunition, and prohibited weapons. The problem with her proposed construction of the contractual provision is that the term "ammunition" is not defined in A.R.S. § 13-3101. Consequently, the condition that she "[n]ot possess or control any firearms, ammunition, or prohibited weapons as defined in A.R.S. § 13-3101" must be read as prohibiting her from possessing or controlling any (1) firearms, (2) ammunition, or (3) prohibited weapons as defined in A.R.S. § 13-3101. In other words, the "as defined in A.R.S. § 13-3101" language in the contract is confined to the last term, "prohibited weapons," and cannot logically serve to limit the definition of the terms "firearm" and "ammunition." Consequently, the trial court did not err in applying a reasonable definition, including that found in A.R.S. § 13-105, to the term "firearm" in Appellant's condition of probation, and in seeking to harmonize §§ 13-3101 and 13-105 rather than frustrate the purpose of the applicable statutes and Appellant's contract with the State. The evidence presented at the probation violation hearing supports the trial court's finding that Appellant violated her probation. We therefore find no abuse of the court's discretion in its decision to revoke Appellant's probation and sentence her to incarceration in ADOC.
CONCLUSION
¶20 We affirm the trial court's decision to revoke Appellant's probation and sentence her to incarceration in ADOC.
LAWRENCE F. WINTHROP, Chief Judge
CONCURRING:
DIANE M. JOHNSEN, Presiding Judge
PATRICIA A. OROZCO, Judge