Opinion
No. 1 CA-CR 12-0160
02-25-2014
STATE OF ARIZONA, Appellee, v. IVORIE PHILLIP WEATHERSPOON, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Linley Wilson Counsel for Plaintiff/Appellant Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff, Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-134439-001
The Honorable Roger E. Brodman, Judge
CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz, Linley Wilson
Counsel for Plaintiff/Appellant
Maricopa County Public Defender's Office, Phoenix
By Kathryn L. Petroff,
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Michael J. Brown joined. GEMMILL, Judge:
¶1 Ivorie Weatherspoon appeals his convictions and sentences for felony possession of drugs and drug paraphernalia. Weatherspoon's only argument on appeal is that the trial court erred in sentencing him to "flat time" because the applicable sentencing statutes does not authorize flat time sentences. In supplemental briefing, the State concedes error and agrees that Weatherspoon should be resentenced without any flat time requirement. We affirm Weatherspoon's convictions. Regarding his sentences, we accept the State's concession of error, vacate the sentences, and remand for resentencing.
BACKGROUND
¶2 A jury found Weatherspoon guilty of one count of possession of marijuana for sale involving an amount having a weight of more than four pounds, a class 2 felony ("Count 1"), and one count of possession of drug paraphernalia, a class 6 felony ("Count 2"). At the sentencing hearing on March 15, 2012, Weatherspoon admitted to seven prior felony convictions.
¶3 Weatherspoon was sentenced under Arizona Revised Statutes ("A.R.S.") sections 13-701, -703, -708 and 13-3405(C). In accordance with § 13-703(C) and (J), Weatherspoon was sentenced as a category three repetitive offender. Because Weatherspoon committed non-dangerous offenses while on probation, § 13-708(C) required that the minimum sentences be the statutory presumptive terms. And because Weatherspoon was also released on bond on a different felony charge at the time of these offenses, § 13-708(D) required the court to add two years to the sentences. The court also chose to impose "flat time" sentences. Accordingly, Weatherspoon was sentenced to concurrent terms of 17.75 years of flat time on Count 1 and 5.75 years of flat time on Count 2. Weatherspoon timely appealed and we have jurisdiction pursuant to A.R.S. §§ 13-4031 and 12-120.21.
A flat time sentence requires that a defendant serve the imposed sentence day-for-day and renders him ineligible for early release credits. Galaz v. Stewart, 207 Ariz. 452, 453 n.1, ¶ 2, 88 P.3d 166, 167 n.1 (2004). In contrast, a defendant sentenced to "soft time" may be eligible for early release credits or parole before the end of the imposed term. See Galaz, 207 Ariz. at 453, ¶ 6, 88 P.3d at 167; State v. Donald, 198 Ariz. 406, 410, ¶ 2, 10 P.3d 1193, 1197 (App. 2000) (discussing a plea agreement which included a soft time sentence with the possibility of parole).
ANALYSIS
¶4 Because Weatherspoon did not object to his sentences when they were imposed, we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567-68, 19-20, 115 P.3d 601, 607-08 (2005); see also State v. Cox, 201 Ariz. 464, 468, ¶ 13, 37 P.3d 437, 441 (App. 2002) (holding that an illegal sentence constitutes fundamental error). To determine whether fundamental error occurred, we review the trial court's interpretation of the applicable statutes de novo. State v. Moore, 218 Ariz. 534, 535, ¶ 5, 189 P.3d 1107, 1108 (App. 2008). In order for a flat-time sentence to be appropriate, it must be authorized under the applicable sentencing statutes. State v. Harris, 133 Ariz. 30, 31, 648 P.2d 145, 146 (App. 1982).
¶5 The record reflects that the court sentenced Weatherspoon under subsections (C) and (D) of A.R.S. § 13-708. Although the sentencing minute entry did not specifically reference A.R.S. § 13-708(C), the court's finding that Weatherspoon committed these offenses "while he was on probation for a separate felony offense" is consistent with its application of § 13-708(C). Additionally, when explaining why the 17.75 year sentence was being imposed consecutively to another sentence not at issue in this appeal, the trial court stated that its decision was based in part on the "nature of § 13-708(C)." The court further noted that Weatherspoon's felonies were not violent or dangerous, and § 13-708(C) governs sentences for non-dangerous crimes committed while on release. Accordingly, we conclude that the court sentenced Weatherspoon appropriately under § 13-708 (C) and (D). We now turn to the question whether these statutes authorize flat time sentences.
¶6 Weatherspoon is a repeat felony offender sentenced under A.R.S. § 13-708(C), which provides in relevant part that a person sentenced under it:
is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to § 41-1604.07 or the sentence is commuted.Weatherspoon was also sentenced under A.R.S. § 13-708(D) for committing offenses while released on bond, resulting in an additional two years being added to his sentence. Under § 13-708(D), a sentenced person:
is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by § 31-233, subsection A or B, until the two years are served, the person is eligible for release pursuant to § 41-1604.07 or the sentence is commuted.
¶7 The language of § 13-708(C) mirrors that of § 13-708(D), except for the placement of one comma. Similar language appears in A.R.S. § 13-3405(C), which establishes the offense of possession, use, production, sale, or transportation of marijuana, and the offense's classification, and A.R.S. § 13-703(O), as part of the statute governing sentencing for repeat offenders. The language of § 13-708(C) and (D) provides that a defendant sentenced under this statute is not eligible for release on any basis until one of four independent factors is applicable: (1) release is "specifically authorized by § 31-233, subsection A or B"; (2) the sentence imposed by the court has been served; (3) the person is eligible for release pursuant to § 41-1604.07; or (4) the sentence is commuted. Regarding Weatherspoon's sentences, subsections (A) and (B) of A.R.S. § 31-233, which provide for release related to medical or community action purposes, are not applicable; A.R.S. § 41-1604.07 arguably applies only when the court has not sentenced the defendant to serve a full term; and Weatherspoon's sentences have not been commuted.
¶8 In its answering brief on appeal, the State argued that under §§ 13-708(C), -708(D), and -3405(C), "the court had the option of ordering Appellant to serve the full term of imprisonment and make him ineligible for release until he had 'served the sentence imposed by the court.'" The State further argued that § 41-1604.07(A) provided that "[e]arned release credit is not available to prisoners sentenced to serve the full term of imprisonment." Weatherspoon argued that the language of these statutes provides for exceptions to flat time — specifically early release under A.R.S. § 41-1604.07 — and flat time sentences are therefore not explicitly authorized.
¶9 We ordered supplemental briefing on this issue because of the Arizona Supreme Court's order in State v. Fuqua, No. CR-13-0114-PR (Oct. 29, 2013) (order reversing flat time sentences and remanding for resentencing). That order vacated paragraphs 33-35 of this court's decision in State v. Fuqua, 1 CA-CR 12-0088, 2013 WL 1174094 (Ariz. App. Mar. 21, 2013) (mem. decision), which had affirmed a defendant's flat time sentences pursuant to A.R.S. § 13-703(O).
¶10 In its supplemental brief in this appeal, the State concedes that the sentencing statutes applicable to Weatherspoon do not "provide sufficient authority to support the imposition of flat-time sentences." Relying on the Arizona Supreme Court's opinion in In re Webb, the State invokes the principle that, as applied in Webb to sentences for misdemeanors, flat time sentences are not permitted "unless specifically authorized per statute." In re Webb, 150 Ariz. 293, 294, 723 P.2d 642, 643 (1986). The State asserts that because the statutes under which Weatherspoon was sentenced "refer to eligibility for earned release credits under A.R.S. § 41-1604.07," those statutes do not "explicitly authorize" flat time. The State then concedes that the applicable statutes in this case use different language than other statutes that, in the State's view, "explicitly authorize" flat time. Weatherspoon agrees with this latter point, arguing in his supplemental brief that "[o]ur legislature knows how to authorize a flat-time sentence" as exemplified by statutes such as A.R.S. § 13-705(H), which requires flat time sentences for persons guilty of a first degree dangerous crime against children.
The State's supplemental brief further explains:
Some sentencing statutes explicitly provide for the imposition of flat-time sentences by omitting any reference to A.R.S. § 41-1604.07 and simply stating that the defendant is not eligible for release on "any basis." For example, offenders who commit a dangerous offense while on probation, parole, or any other release are "not eligible for suspension or commutation or release on any basis until the sentence imposed is served." A.R.S. § 13-708(A) (emphasis added).
In its supplemental brief, the State does not specifically address whether a distinction could exist between statutes that merely authorize flat time in the discretion of the sentencing court and statutes that mandate flat time. We are confident the legislature could authorize — without mandating — flat time sentences by the superior court, in its discretion, for certain offenses. We need not analyze whether that distinction exists here because we accept the State's concession of error regarding Weatherspoon's sentences.
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¶11 We agree that the sentencing statutes at issue here do not mandate flat time sentences, and we accept — for purposes of this appeal — the State's concession that the statutes involved here do not explicitly authorize flat time sentences. We also recognize that the Arizona Supreme Court, in vacating the flat time sentences at issue in Fuqua, accepted a similar concession of error from the State.
CONCLUSION
¶12 In light of Weatherspoon's arguments, the State's concession of error, and the supreme court's order in Fuqua that vacated a sentence based on a statute with similar language to the statutes at issue here, we agree that Weatherspoon should be resentenced without flat time being imposed. In accordance with the remedy imposed by the supreme court in Fuqua, we affirm Weatherspoon's convictions, vacate his sentences, and remand for resentencing.