Opinion
No. 2 CA-CR 2014-0280
06-16-2015
THE STATE OF ARIZONA, Appellee, v. CHRISTOPHER JOSEPH SOVEREIGN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20134217001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED AS CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Following a jury trial, Christopher Sovereign was convicted of unlawful use of a means of transportation, criminal damage in an amount of more than $2,000 but less than $10,000, and fleeing from a law enforcement vehicle. The trial court sentenced him to mitigated, concurrent four-year prison terms on each count and, in the minute entry filed two days later, ordered restitution in the amount of $15,184.14.
¶2 On appeal, Sovereign argues the trial court erred when it failed to order restitution during oral pronouncement of his sentence and the amount of restitution was not reasonably supported by the evidence. He also argues the court erred by "instructing the jury on reasonable doubt pursuant to Portillo" and by overruling his objection to a bench trial to determine his prior convictions. For the reasons that follow, we correct the court's sentencing minute entry but otherwise affirm.
State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995).
Factual and Procedural Background
¶3 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Sovereign's convictions. See State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013). On September 26, 2013, D.G. called 9-1-1 to report his truck had been stolen. Pima County Sheriff's Department deputies used the truck's global positioning system to determine where its driver, Sovereign, was heading and began their pursuit. In an attempt to stop the truck, a deputy blocked the road with his own vehicle, but Sovereign drove on the road's shoulder, around the blockade, and fled. The deputy followed the truck until Sovereign drove off the road and into the desert. Deputies later found Sovereign hiding beneath a tree near the truck that he had abandoned in a small ravine.
¶4 A grand jury indicted Sovereign for theft of a means of transportation, criminal damage in an amount of more than $2,000 but less than $10,000, and fleeing from a law enforcement vehicle. After a trial, the jury found him guilty as charged on the second and third counts but, as to the first, found Sovereign guilty of a lesser-included offense, unlawful use of a means of transportation. The trial court determined Sovereign had two historical prior felony convictions and sentenced him as described above. In the minute entry filed two days later, the court also ordered Sovereign to pay restitution to D.G. and to his vehicle insurer. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Restitution
¶5 Sovereign argues the trial court erred by "failing to impose restitution in open court" and by "imposing, in the sentencing minute entry, $1,400 restitution to the victim." Sovereign did not raise this issue below and therefore has forfeited review for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). "An illegal sentence, however, constitutes fundamental error." State v. Pesqueira, 235 Ariz. 470, ¶ 29, 333 P.3d 797, 805 (App. 2014).
In State v. Anderson, 171 Ariz. 34, 35-36, 827 P.2d 1129, 1130-31 (1992), our supreme court characterized a felony assessment imposed after oral pronouncement of sentence in a later minute entry as an "illegal sentence" and remanded the case to the trial court for resentencing without first making a determination that the defendant had been prejudiced by the error. See also State v. Powers, 154 Ariz. 291, 295, 742 P.2d 792, 796 (1987) (same). In Henderson, however, the court made clear that, under the fundamental-error standard of review, the burden is on the defendant, as the proponent of the error he failed to challenge below, to show prejudice. 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. The court further explained, "To the extent that any prior decisions are inconsistent with today's holding, we disapprove of them." Id. ¶ 21.
¶6 The presentence report stated that D.G. had requested "$500 in restitution for his copay to [his] insurance company" and "$500 for lost wages while he attended the defendant's trial." However, it stated that D.G. was entitled to $1,400 in total restitution. Sovereign did not file an objection to the amounts of restitution in the presentence report prior to the sentencing hearing, as required by Rule 26.8, Ariz. R. Crim. P. During the sentencing hearing, the state requested "$1,000 to [D.G.] for missed work and his deductible." Restitution was not mentioned again during the hearing. In its sentencing minute entry filed two days later, the trial court ordered Sovereign to pay restitution to D.G. in the amount of $1,400 and $13,784.14 to his vehicle insurer.
¶7 Citing Rule 26.9, Ariz. R. Crim. P., Sovereign argues that "because the trial court did not announce the restitution award in open court in [his] presence but, rather, imposed the restitution order through the issuance of a minute entry two days later, the entire restitution award should be vacated and the matter remanded for resentencing on restitution."
¶8 Rule 26.9 provides that "[t]he defendant . . . shall be present at sentencing." "Restitution is part of a defendant's sentence and must be set forth in the oral pronouncement of sentence." State v. Barrs, 172 Ariz. 42, 43, 833 P.2d 713, 714 (App. 1992) (citation omitted). "[T]he judgment and sentence are 'complete and valid' upon oral pronouncement and cannot be modified thereafter except as provided by Rule 24.3, Ariz. R. Crim. P." State v. Serrano, 234 Ariz. 491, ¶ 9, 323 P.3d 774, 777 (App. 2014), quoting Ariz. R. Crim. P. 26.16(a).
¶9 In Serrano, this court held the trial court lacked authority to enter an order three weeks after pronouncement of sentence requiring the defendant to register as a sex offender. 234 Ariz. 491, ¶¶ 7, 9-11, 16, 323 P.3d at 776-79. We noted that the "court failed to address the issue of sex offender registration at sentencing because the parties had made no such request, and the court was not legally required to do so sua sponte." Id. ¶ 7. Accordingly, we concluded that the sentences originally imposed by the court "were not unlawful, . . . [n]or were the[y] . . . imposed without regard for statutory and procedural rules." Id. ¶ 11. "The absence of a registration order, therefore, did not allow the court to modify the judgment or sentences under Rule 24.3." Id.
In Serrano, we also determined the state's post-sentencing motion to correct the record to include the registration order was not authorized by Rule 24.4, Ariz. R. Crim. P., because "[t]he motion did not call upon the trial court to correct or 'clarify the record and make sure it accurately reflected the sentence originally imposed,' as is the purpose of [the rule]." 234 Ariz. 491, ¶ 6, 323 P.3d at 776, quoting State v. Lujan, 136 Ariz. 326, 329, 666 P.2d 71, 74 (1983).
¶10 But unlike the registration order in Serrano, the order for restitution in this case was not discretionary. "The trial court is required to impose restitution to reimburse the victim for the full amount of his economic loss." State v. Holguin, 177 Ariz. 589, 591, 870 P.2d 407, 409 (App. 1993); see also A.R.S. § 13-603(C) ("[T]he court shall require the convicted person to make restitution to the person who is the victim of the crime."). Therefore, the court was authorized to modify the sentence under Rule 24.3. See State v. Falkner, 112 Ariz. 372, 373, 542 P.2d 404, 405 (1975) (Rule 24.3 permits trial court to correct or modify sentence when sentence unlawful or imposed in unlawful manner). Although Sovereign was entitled to be present when the court ordered restitution, see Ariz. R. Crim. P. 26.9, he has not established that he was prejudiced by the court's error, see State v. Allen, 235 Ariz. 72, ¶ 24, 326 P.3d 339, 345-46 (App. 2014).
¶11 Sovereign argues the victim's hourly wage conflicted with his claim for lost wages and "[i]t is difficult to comprehend how he could have" objected on this ground at the sentencing hearing. But he acknowledges that the victim's statement section of the presentence report confirmed D.G. was seeking restitution for his insurance copay and lost wages and listed the amounts requested. And at sentencing, the state requested that the trial court order Sovereign to pay restitution to D.G. in the amount he had requested. The record thus shows that Sovereign had notice the victim was seeking restitution, and he had an opportunity to challenge the amounts requested. See State v. Fancher, 169 Ariz. 266, 268, 818 P.2d 251, 253 (App. 1991) ("So long as the procedure leading to a restitution award is such that defendant is given the opportunity to contest the information on which the restitution award is based, to present relevant evidence, and to be heard, due process is satisfied.").
¶12 Sovereign nevertheless argues "the trial court's imposition of the $1,400 restitution order was an abuse of discretion, because the evidence only warranted, at most, a $1,000 restitution order for [D.G.]" We review a trial court's restitution order for an abuse of discretion. State v. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d 409, 411 (App. 2009).
¶13 Although the presentence report stated that D.G. had requested "$500 in restitution for his copay to [his] insurance company" and "$500 for lost wages while he attended the defendant's trial," it stated that D.G. was entitled to $1,400 in total restitution. At sentencing, the state requested a total of $1,000 in restitution for D.G., and, on appeal, the state concedes "[t]he restitution award to [D.G.] should be reduced by $400." We agree. It is apparent that the trial court based its restitution order on the incorrect total contained in the presentence report for the amount of restitution owed to D.G. Accordingly, we correct the sentencing minute entry to reduce the restitution award to D.G. to $1,000. See State v. Ovante, 231 Ariz. 180, ¶¶ 38-39, 291 P.3d 974, 982 (2013) (appellate court may correct sentencing minute entry where error is clear from record).
Portillo Instruction
¶14 Sovereign argues the trial court erred by "instructing the jury on reasonable doubt pursuant to Portillo, which relieved the State of its constitutional burden of proof." He maintains the terms "firmly convinced" and "real possibility" used in the Portillo instruction "more closely define a 'clear and convincing' standard, which is lower than the constitutional standard in criminal cases." "[W]hether the jury instructions correctly stated the law" is "a question we review de novo." State v. Roque, 213 Ariz. 193, ¶ 138, 141 P.3d 368, 401 (2006).
Over Sovereign's objection at trial, the trial court used the following instruction to describe reasonable doubt:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. There are very few things in this world that we know with absolute certainty, and, in criminal cases, the law does not require proof that overcomes every doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
¶15 Sovereign acknowledges that our supreme court has reaffirmed the use of the Portillo instruction numerous times, see, e.g., State v. Cañez, 202 Ariz. 133, ¶ 76, 42 P.3d 564, 587 (2002), repeatedly rejecting the argument he now makes, see State v. Van Adams, 194 Ariz. 408, ¶¶ 29-30, 984 P.2d 16, 26 (1999). "'This court is bound by decisions of the Arizona Supreme Court and has no authority to overturn or refuse to follow its decisions.'" State v. McPherson, 228 Ariz. 557, ¶ 13, 269 P.3d 1181, 1186 (App. 2012), quoting State v. Long, 207 Ariz. 140, ¶ 23, 83 P.3d 618, 623 (App. 2004). Thus, the trial court did not err by instructing the jury pursuant to Portillo. See Roque, 213 Ariz. 193, ¶ 138, 141 P.3d at 401.
Prior Convictions
¶16 Sovereign argues his "Sixth Amendment right to a jury trial was violated when the prior convictions were tried at a bench trial and not to a jury." "We review issues regarding the interpretation of . . . constitutional provisions de novo." State v. Glassel, 211 Ariz. 33, ¶ 78, 116 P.3d 1193, 1213 (2005).
¶17 Sovereign concedes that, under current law, historical prior felony convictions need not be proved to a jury. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."); Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998) (holding prior conviction used as sentencing enhancement not element of offense). Instead, he argues, "Other appellate judges, as well as legal academics, are anticipating the demise of [this] exception." And, he asserts that he "presents this issue to preserve it, in anticipation of the inevitable high court ruling." But, "[w]e are not allowed to anticipate how the Supreme Court may rule in the future." State v. Keith, 211 Ariz. 436, ¶ 3, 122 P.3d 229, 230 (App. 2005). This court is "bound by the decisions of the United States Supreme Court interpreting the Federal Constitution," and, based on those decisions, we reject Sovereign's argument. State v. Sherrick, 98 Ariz. 46, 52, 402 P.2d 1, 5 (1965).
Disposition
¶18 For the foregoing reasons, we correct that portion of the trial court's sentencing minute entry to reflect the amount of restitution awarded to D.G. is $1,000, not $1,400. We otherwise affirm the convictions and sentences.
Our supreme court approved this instruction in Portillo, 182 Ariz. at 596, 898 P.2d at 974.