Opinion
1 CA-CR 12-0227
04-25-2013
STATE OF ARIZONA, Appellee, v. DOUGLAS EUGENE MARTIN, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee Michael J. Dew, Attorney at Law Attorney for Appellant
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(Not for Publication -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 Maricopa County
Cause No. CR2011-120921-001
The Honorable Karen L. O'Connor, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
Attorneys for Appellee
Phoenix Michael J. Dew, Attorney at Law
Attorney for Appellant
Phoenix KESSLER, Judge ¶1 After a jury trial, Appellant Douglas Eugene Martin ("Martin") was convicted of forgery, a class 4 felony, and sentenced to 3 years' incarceration. Counsel for Martin filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Martin submitted two supplemental briefs in propia persona asserting that the superior court erred by: (1) denying his motions for acquittal; (2) not considering a mitigated sentence; and (3) incorrectly using his out-of-jurisdiction prior felony convictions to enhance his sentence. For the reasons that follow, we affirm Martin's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 The Phoenix Police Department conducted an investigation into the disappearance of several pieces of luggage from Sky Harbor Airport. Police officers approached a man outside the airport who looked like the person that they suspected committed the thefts. After initiating contact with the suspect, later identified as Martin, police officers asked Martin multiple times for his name, date of birth, social security number, and whether he had any identification on him. Martin told the officers his name was Dennis Nickman, his date of birth was May 31, 1951, and provided a social security number. Martin also provided an identification card from a local homeless shelter bearing the name Dennis Nickman. ¶3 Officer G. used the information to perform a criminal history inquiry in the police computer database to look for outstanding warrants. The search returned one record and a photo for Dennis Nickman from the Arizona Department of Transportation Motor Vehicle Division. The photo depicted Dennis Nickman as a Caucasian male. As Martin is a Black male, the officers decided to perform a fingerprint check to verify Martin's identity. ¶4 Prior to obtaining Martin's fingerprints, Officer C. warned Martin that if he falsely signed an official document such as the fingerprint card, he could be arrested and charged with forgery. Martin signed the fingerprint card with the name Dennis Nickman. Officer C. then completed the rest of the biographical information on the fingerprint card, and obtained Martin's fingerprints. ¶5 Martin was charged with five counts of burglary and six counts of theft related to the missing luggage, and one count of forgery in connection with the fingerprint card. Upon the State's motion prior to trial, the superior court dismissed all of the burglary and theft charges without prejudice. After engaging in a colloquy, the court ascertained that Martin knowingly, intelligently, and voluntarily waived his right to counsel. See Ariz. R. Crim. P. 6.1. Both prior to and at trial, Martin represented himself, though he was appointed advisory counsel. ¶6 A jury convicted Martin of forgery. At sentencing, the superior court warned Martin about his rights and engaged in a colloquy with Martin after which it accepted Martin's admission to two nonhistorical out-of-jurisdiction prior felony convictions. The court used these prior convictions combined with Martin's current forgery conviction to sentence Martin as a category two repetitive offender under Arizona Revised Statutes ("A.R.S.") section 13-703(B)(1) (2010). After the court determined that A.R.S. § 13-703(F) did not permit a mitigated sentence, it imposed the minimum sentence of three years' incarceration and granted Martin 349 days of presentence incarceration credit. ¶7 Martin timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, as well as A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
STANDARD OF REVIEW
¶8 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20.
DISCUSSION
¶9 After careful review of the record, we find no grounds for reversal of Martin's conviction or sentence. The record reflects Martin had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Martin was present at all critical stages of trial, properly waived counsel, properly admitted his prior convictions, was given the opportunity to speak at sentencing, and the sentence imposed was within the range for Martin's offense.
I. SUFFICIENCY OF THE EVIDENCE
¶10 We review the evidence in the light most favorable to sustaining the verdict, resolving reasonable inferences against an appellant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶11 "A person commits forgery if, with the intent to defraud, the person . . . [f]alsely makes, completes or alters a written instrument . . . ." A.R.S. § 13-2002(A) (Supp. 2012). The State introduced into evidence the fingerprint card containing Martin's fingerprints and signed with the name Dennis Knickman. The State also presented testimony from two police officers who stated that Martin signed the fingerprint card after he received a forgery warning. Martin also testified that he was not Dennis Nickman, and had never met Dennis Nickman. ¶12 The evidence also supports that Martin acted with the intent to defraud. Intent can be inferred from the surrounding circumstances. State v. White, 102 Ariz. 97, 98, 425 P.2d 424, 425 (1967) ("Generally, the intent with which a crime or act is committed may be implied from the facts that establish the doing of the act . . . ."). The State presented testimony, and Martin admitted while testifying, that he had existing arrest warrants from other states. The jury could reasonably infer from the evidence that Martin intended to defraud the police officers to avoid his outstanding warrants. There is sufficient evidence to support Martin's conviction.
We cite the current versions of the applicable statutes when no revisions material to this decision have since occurred.
Although the transcript indicates the name is Dennis Nickman, the fingerprint card itself states the name as Dennis Knickman.
In his second supplemental brief, Martin argues that his clothing, which the State inadvertently destroyed, was exculpatory to his forgery charge. Even if his clothing may have been exculpatory with respect to the dismissed burglary and theft charges, it is not relevant, much less exculpatory, to the forgery charge. In no way does the clothing have any bearing on the elements of forgery.
II. MARTIN'S SUPPLEMENTAL CLAIMS
A. DENIAL OF RULE 20 MOTIONS FOR ACQUITTAL ¶13 At the close of the State's case, Martin moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20, which the superior court denied. Martin renewed his motion at the end of trial which the court again denied. Martin asserts two theories to support his argument that the court erred in denying his motions. We address each in turn. ¶14 Martin first argues that signing a fingerprint card before the suspect's fingerprints are impressed on it does not fall within the definition of the forgery statute. This question has not been directly addressed in Arizona. The only jurisdiction to address this precise question is New York, which held that signing a blank fingerprint card constitutes forgery. See People v. Van Schoick, 198 A.D.2d 907, 907 (N.Y. App. Div. 1993) ("It is irrelevant whether the [fingerprint] card was blank when signed."). Arizona has defined the terms "[f]alsely makes a written instrument" and "[f]alsely alters a written instrument" to include both complete and incomplete written instruments. A.R.S. § 13-2001(5), (7) (2010). An incomplete written instrument is "a written instrument that contains some matter by way of content or authentication but that requires additional matter to render it a complete written instrument." A.R.S. § 13-2001(9). From the statutory definitions, forgery is not limited to only signing a fully completed document. Affixing a false name and signature on a written instrument that has not otherwise been completed satisfies the actus rea of forgery. ¶15 Second, Martin argues that the State failed to prove that he signed the fingerprint card for any benefit or gain, or that he prejudiced the rights of another person. Arizona's forgery statute does not require the State to prove any such elements. The statute only requires the State to prove that the defendant falsely made, completed, or altered a written instrument "with intent to defraud." A.R.S. § 13-2002(A)(1). "Showing that [the defendant] had actually profited from [his] conduct is not necessary to prove the required intent." State v. Tucker, 26 Ariz. App. 376, 378, 548 P.2d 1188, 1190 (1976). As discussed supra, ¶¶ 10-12, the State presented sufficient evidence for a jury to find that Martin possessed the requisite criminal mens rea. The superior court did not err in denying Martin's Rule 20 motions. In any event, the jury could have concluded Martin forged the signature to mislead the officers as to the outstanding warrants against him.
B. DENIAL OF CONSIDERATION FOR A MITIGATED SENTENCE ¶16 Martin argues that the superior court abused its discretion by denying consideration of a mitigated sentence. The court sentenced Martin as a category two repetitive offender pursuant to A.R.S. § 13-703(B)(1). The court determined that A.R.S. § 13-703(F) did not authorize it to give Martin a mitigated sentence because subsection (F) only applied to a defendant sentenced under A.R.S. § 13-703(B)(2). We agree with the superior court. ¶17 At the time of Martin's offense, A.R.S. § 13-703(F) stated, in relevant part, "[i]f a person is sentenced as a category two repetitive offender pursuant to subsection B, paragraph 2 of this section . . . the court may impose a mitigated . . . sentence pursuant to subsection I of this section." (Emphasis added.) The superior court correctly determined that subsection (F) did not apply because Martin was not sentenced pursuant to subsection (B)(2), and thus he was not eligible for a mitigated sentence as prescribed by subsection (I). ¶18 Martin further contends that because A.R.S. § 13-703(F) was amended in 2012 to include defendants sentenced under subsection (B)(1), he is now eligible for a mitigated sentence. We disagree. We must rely on the version of the sentencing statute in effect at the time of Martin's offense. See A.R.S. § 1-246 (2002). Statutory amendments are not retroactive unless expressly provided therein, A.R.S. § 1-244 (2002), and the only exception to this rule is if an amendment is merely a procedural change as opposed to a substantive change in law. State v. Fell, 210 Ariz. 554, 560, ¶¶ 21-22, 115 P.3d 594, 600 (2005). Here, the 2012 amendment to A.R.S. § 13-703(F) does not expressly state that it is retroactive, and the revision to subsection (F) to include sentences imposed pursuant to subsection (B)(1) is not merely procedural, but rather a substantive change in law. See In re Shane B., 198 Ariz. 85, 88, ¶ 9, 7 P.3d 94, 97 (2000). Therefore, Martin, whose offense was committed before the effective date of the amended statute, is not retroactively eligible for a mitigated sentence. ¶19 Martin also contends that he was eligible to receive a mitigated sentence based on the broad language in A.R.S. § 13-703(D), which provides: "[t]he presumptive term set by this section may be aggravated or mitigated within the range under this section . . . ." He contends that the superior court had discretion to impose a mitigated sentence based on subsection (D), contrary to the court's conclusion that it was constrained by subsection (F). When construing a statute, "[e]ach word, phrase, and sentence must be given meaning so that no part will be void, inert, redundant, or trivial." Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 327 n.6, ¶ 15, 266 p.3d 349, 353 n.6 (2011) (quoting City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949)). Were we to accept Martin's argument that the generalized statement in subsection (D) was applicable to mitigate his sentence, it would permit a court to entirely subvert subsection (F) thereby rendering the specific provisions in that subsection superfluous. Rather, we interpret subsection (D) to mean that a court may increase or decrease a sentence within the range set by the minimum and maximum. As discussed above, because Martin was sentenced pursuant to subsection (B)(1), he was not eligible for the lower mitigated 2.25 year sentence as provided by subsections (F) and (I). Pursuant to subsection (I), three years' incarceration was the absolute minimum sentence the superior court could impose for Martin's offense. We find no error.
At the time of Martin's offense, the minimum sentence was 3 years, while the mitigated sentence was 2.25 years. A.R.S. § 13-703(I).
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C. THE USE OF OUT-OF-JURISDICTION PRIOR FELONY CONVICTIONS FOR SENTENCING ¶20 Martin next asserts that the court abused its discretion by using out-of-jurisdiction prior felonies to enhance Martin's sentence without properly ensuring that the elements of the out-of-jurisdiction convictions matched the comparable Arizona statutes. Whether a foreign conviction is a felony in Arizona is an issue of law subject to de novo review. State v. Crawford, 214 Ariz. 129, 131, ¶ 6, 149 P.3d 753, 755 (2007). ¶21 At the time of Martin's offense, A.R.S. § 13-703(M) required the superior court to compare the elements of an out-of-jurisdiction offense to Arizona statutes to determine if the offense is a felony in Arizona only if the defendant is sentenced under subsections (B)(2) or (C) . Martin was not sentenced under either of these subsections, so the element comparison mandated under subsection (M) was not required. ¶22 As discussed above, Martin was sentenced pursuant to A.R.S. § 13-703(B)(1) which stated that "[a] person shall be sentenced as a category two repetitive offender if the person . . . [i]s convicted of three or more felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions." Subsection (B)(1) does not require the superior court to make any specific findings before using out-of-jurisdiction felonies to enhance a defendant's sentence. So long as there are at least three nonhistorical felony convictions from any jurisdiction, subsection (B)(1) applies. Here, Martin admitted to two out-of-jurisdiction nonhistorical prior felony convictions, and his forgery conviction in the instant matter provided the third felony conviction. Although not required, the superior court found that Martin's out-of-jurisdiction prior felony convictions were also felonies in Arizona. Even assuming the court erred in so concluding, it is immaterial to the sentence imposed. There is no reversible error.
CONCLUSION
¶23 After careful review of the record, we find no meritorious grounds for reversal of Martin's conviction or modification of the sentence imposed. The evidence supports the verdict, the sentence imposed was within the sentencing limits, and he was properly credited with 349 days of presentence incarceration credit. Accordingly, we affirm Martin's conviction and sentence. ¶24 Upon the filing of this decision, counsel shall inform Martin of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Martin shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
_________________
DONN KESSLER, Judge
CONCURRING: _________________
JOHN C. GEMMILL, Presiding Judge
_________________
JON W. THOMPSON, Judge