Opinion
No. 1 CA-CR 14-0845 No. 1 CA-CR 15-0405 (Consolidated)
02-02-2016
STATE OF ARIZONA, Appellee, v. AGWU GIBSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201300734
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined. THUMMA, Judge:
¶1 Agwu Gibson appeals his conviction and resulting sentence for promoting prison contraband, arguing prosecutorial vindictiveness and that his sentence was arbitrary and cruel and unusual. Because Gibson has not shown fundamental error, his conviction and resulting sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 While Gibson was incarcerated in Arizona State Prison-Kingman for an unrelated felony offense, corrections officers found in Gibson's hair 70 milligrams of black-tar heroin wrapped in plastic. The State charged Gibson by indictment with one count of promoting prison contraband, a Class 2 felony.
¶3 The State offered a plea agreement in which Gibson would plead guilty to attempted promotion of prison contraband, a Class 3 felony, with a stipulated sentence of 2.5 years. At a hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000), in response to the superior court's question, the State indicated it would be filing sentencing enhancements "for two or more historical prior felonies." The court then informed Gibson that, if convicted of the charge with that criminal history, he was facing a minimum of 10.5 years in prison, a presumptive sentence of 15.75 years and a maximum of 35 years. When Gibson declined the plea offer, the State told him the offer would remain open for nine days after the hearing. Gibson did not accept that offer and it expired.
¶4 Three months after the State's plea offer expired, the State amended the indictment by filing an allegation of three historical prior felony convictions from 2011 and alleged the three felony convictions constituted aggravating factors. The superior court rejected Gibson's objection to these allegations.
¶5 Before trial, after a proper colloquy, the superior court found Gibson knowingly, intelligently and voluntarily waived his right to counsel and granted Gibson's request to represent himself. At Gibson's request, and over the State's objection, the court scheduled a settlement conference. The State, however, did not make another plea offer and the matter proceeded to trial. Gibson then withdrew his waiver of his right to counsel and was represented by counsel throughout trial.
¶6 At trial, four corrections officers and a crime-lab employee testified. Gibson also testified and, during his testimony, admitted to having three felony convictions from 2011. The jury, after considering the evidence presented, counsel's arguments and the court's instructions, deliberated and returned a guilty verdict.
¶7 At sentencing, the superior court found the State proved Gibson's three 2011 felony convictions beyond a reasonable doubt and that they constituted historical prior felony convictions. The court used two of the historical prior felony convictions to establish the sentencing range and used the third as an aggravating factor. The court considered the small amount of drugs as a mitigating factor, but noted heroin is worse than other narcotic drugs. The court found Gibson's family support and his efforts to improve himself in prison also constituted mitigating factors. Ultimately, the court found that the aggravating and mitigating factors balanced out and sentenced Gibson to the presumptive term of 15.75 years in prison.
¶8 Gibson filed a timely notice of appeal from his conviction and resulting sentence. More than six months later, Gibson filed a pro-se motion to vacate judgment in the superior court. The court denied that motion as untimely under Ariz. R. Crim. P. 24.2(a)(3) (2016), and Gibson filed a timely pro-se notice of appeal from the denial of his motion to vacate judgment. At Gibson's request, this court consolidated both appeals.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
Gibson filed four other motions to vacate judgment, making various arguments, before filing the notice of appeal from the order denying his motion to vacate judgment. The superior court had not ruled on any of those motions at the time of the notice of appeal. Accordingly, this court does not have jurisdiction to consider them. See A.R.S. § 13-4033(A). --------
¶9 This court has jurisdiction over Gibson's timely appeals pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A).
DISCUSSION
¶10 Gibson failed to raise with the superior court the issues he presses on appeal, meaning review is limited to fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20 (2005). "Accordingly, [Gibson] bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).
I. Gibson Has Not Shown Prosecutorial Vindictiveness.
¶11 Gibson argues the State acted vindictively by refusing to negotiate a plea after he began representing himself, thereby punishing him for exercising his right of self-representation. Due process protects against prosecutorial decisions "motivated by a desire to punish [a defendant] for doing something that the law plainly allowed him to do." United States v. Goodwin, 457 U.S. 368, 384 (1982).
¶12 Prosecutorial vindictiveness may be proven in two ways. State v. Mieg, 225 Ariz. 445, 447 ¶ 11 (App. 2010). "First, a defendant may show actual vindictiveness, i.e., he may prove through objective evidence that a prosecutor acted in order to punish him for standing on his legal rights." Id. (citation omitted). "Second, because motives are complex and difficult to prove, a defendant may rely on a presumption of vindictiveness if the circumstances establish a realistic likelihood of vindictiveness." Id. at 448 ¶ 11 (citations omitted). There is no objective evidence on the record supporting actual vindictiveness and the circumstances presented do not warrant a presumption of vindictiveness.
¶13 The State extended Gibson a plea offer, which he rejected at the Donald hearing. At that hearing, the State clearly stated it would be seeking an enhanced sentence based on historical prior felony convictions and gave a firm expiration date for the plea offer. After that expiration date passed, the State then made appropriate filings to use Gibson's prior felonies as sentencing enhancements. Only after that did Gibson elect to represent himself. Consistent with earlier statements, the State then continued to refuse to negotiate a plea, as was its right. See State v. McKinney, 185 Ariz. 567, 575 (1996) ("It is well settled that criminal defendants have no constitutional right to a plea agreement and the state is not required to offer one" and "a plea bargain can be revoked by any party, at any time, prior to its acceptance by the court.") (citation omitted). On this record, Gibson has not shown "a realistic likelihood of vindictiveness." Mieg, 225 Ariz. at 447 ¶ 10; see also State v. Brun, 190 Ariz. 505, 507 (App. 1997) ("A defendant before trial is expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. . . . It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter.") (citation omitted).
II. Gibson's Sentence Is Proper.
¶14 Gibson argues the superior court imposed an arbitrary, excessive sentence. "The imposition of a penalty upon conviction is entirely within the discretion of the trial judge," State v. Ferreira, 128 Ariz. 530, 532 (1981), and "if the sentence imposed is within the statutory limits, [this court] will not disturb the sentence unless there is a clear abuse of discretion," State v. Ward, 200 Ariz. 387, 389 ¶ 5 (App. 2001). While mitigating circumstances must be considered, "the weight to be given any factor asserted in mitigation falls within the [superior] court's sound discretion." State v. Vermuele, 226 Ariz. 399, 403 ¶ 15 (App. 2011).
¶15 The superior court used two of Gibson's historical prior felony convictions to properly establish his sentencing range. See A.R.S. §§ 13-703(C), (J). After using the third prior felony conviction as an aggravator and finding three mitigating factors, the court imposed the presumptive sentence. The superior court acted within its discretion and therefore did not fundamentally err.
¶16 Gibson also argues this court should reduce his sentence to a mitigated term of 10.5 years pursuant to A.R.S. § 13-4037, which authorizes the reduction of a sentence where "the punishment imposed is greater than under the circumstances of the case ought to be inflicted." This court will exercise that power with great caution and only in extraordinary circumstances. State v. Levitt, 155 Ariz. 446, 448 (App. 1987); State v. La Mountain, 125 Ariz. 547, 552 (1980). "If a sentence is within the statutory limits, the sentence will not be modified or reduced unless, from the circumstances, it clearly appears the sentence was an abuse of the trial court's discretion." La Mountain, 125 Ariz. at 552. As applied, the superior court imposed a presumptive sentence, well within statutory limits. Gibson has not shown how his presumptive sentence is so excessive under the circumstances as to constitute an abuse of discretion. Accordingly, Gibson has not shown grounds for a reduction of his sentence under A.R.S. § 13-4037.
III. Gibson's Sentence Is Not Cruel and Unusual Under The Eighth Amendment.
¶17 Gibson argues his presumptive sentence of 15.75 years constitutes cruel and unusual punishment. The Eighth Amendment to the United States Constitution "'does not require strict proportionality between crime and sentence' but instead forbids only extreme sentences that are 'grossly disproportionate to the crime.'" State v. Berger, 212 Ariz. 473, 476 ¶ 13 (2006) (quoting Ewing v. California, 538 U.S. 11, 23-24 (2003)). To determine whether a sentence is so lengthy as to be cruel and unusual under the Eighth Amendment, this court "first determines if there is a threshold showing of gross disproportionality by comparing the gravity of the offense and the harshness of the penalty." Id. at 476 ¶ 12 (citation omitted). "A prison sentence is not grossly disproportionate, and a court need not proceed beyond the threshold inquiry, if it arguably furthers the State's penological goals and thus reflects a rational legislative judgment, entitled to deference." Id. at 477 ¶ 17 (citation omitted).
¶18 Gibson was convicted of violating A.R.S. § 13-2505, which was enacted to "promote the safety, security or preservation of order in a correctional facility," a "goal afforded particular importance by [the] legislature." State v. Romero, 216 Ariz. 52, 55 ¶ 10 (App. 2007) (citation omitted). In addition, as noted by the United States Supreme Court, a sentencing enhancement based on repeat offenses has the legitimate penological goal of "incapacitating and deterring recidivist felons." Ewing, 538 U.S. at 29. Given these legitimate interests evidenced by statutory enactments, Gibson's presumptive 15.75-year sentence is not cruel and unusual under the Eighth Amendment.
IV. The Superior Court Did Not Err In Denying Gibson's Motion to Vacate Judgment.
¶19 Although Gibson filed a notice of appeal from the denial of his motion to vacate judgment, he has not argued how the superior court erred in denying his untimely motion. The superior court entered judgment and sentenced Gibson on December 4, 2014, Gibson filed the original notice of appeal on December 8, 2014 and the appeal was perfected on March 11, 2015. Gibson filed the motion to vacate judgment on May 15, 2015, five months after the superior court entered judgment and two months after the appeal was perfected. Accordingly, the superior court properly denied the motion as untimely. See Ariz. R. Crim. P. 24.2(a) ("Upon motion made no later than 60 days after the entry of judgment and sentence but before the defendant's appeal, if any, is perfected the court may vacate the judgment.").
CONCLUSION
¶20 Gibson's conviction and resulting sentence are affirmed.