Opinion
No. 2 CA-CR 2013-0256-PR
11-15-2013
THE STATE OF ARIZONA, Respondent, v. ANTHONY SAMUEL HALULA JR., Petitioner.
Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean, Deputy Public Defender, Tucson Counsel for Petitioner
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Pima County
No. CR20111349001
The Honorable Michael J. Cruikshank, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Lori J. Lefferts, Pima County Public Defender
By Rebecca A. McLean, Deputy Public Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Espinosa concurred. VÁSQUEZ, Presiding Judge:
¶1 Anthony Halula Jr. petitions this court for review of the trial court's order summarily denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Halula has not met his burden of demonstrating such abuse here.
¶2 Halula pled guilty to kidnapping, sexual assault, and attempted sexual assault. The plea agreement provided that his sentences for kidnapping and sexual assault would run consecutively. Accordingly, the trial court sentenced him to a seven-year prison term for sexual assault, to be followed by a five-year term for kidnapping. The court also imposed lifetime probation for Halula's conviction of attempted sexual assault.
¶3 Halula sought post-conviction relief, arguing the imposition of consecutive sentences violated the double jeopardy clause and A.R.S. § 13-116 and requesting that he be resentenced to concurrent prison terms. Halula stated that his charges arose from his having "pushed [the victim]" from a sidewalk "into a secluded area nearby" where he then sexually assaulted her. He asserted that consecutive sentences were improper because he could not have committed the sexual assault without also committing kidnapping, reasoning that "the restraint [he had] used . . . to commit the kidnapping offense did not exceed the minimum necessary to accomplish the sexual assault" and "did not result in any additional harm to the victim."
¶4 The trial court rejected Halula's claim and found consecutive sentences were appropriate. It concluded Halula "could have committed the sexual assault without committing the kidnapping" because Halula had admitted at the plea colloquy that he had "forced [the victim] to stop" or "pull over"—thus committing kidnapping—before sexually assaulting her. The court also observed the grand jury transcript—incorporated into the factual basis for Halula's plea—stated Halula had forced the victim into a secluded area before assaulting her. Finally, the court found that the kidnapping had caused "additional harm," albeit "trivial," and thus the risk to the victim had been increased.
¶5 On review, Halula reurges his claim that imposition of consecutive sentences violated A.R.S. § 13-116 and the double jeopardy clause. We first observe that Halula appears to conflate the analysis required to determine whether double jeopardy bars consecutive sentences and whether § 13-116 permits consecutive sentences. As our supreme court observed in State v. Gordon, those analyses are distinct. 161 Ariz. 308, 313 n.5, 778 P.2d 1204, 1209 n.5 (1989) (identifying distinction between § 13-116 analysis, which "focuses on the facts of the transaction and the conduct of the defendant in determining what is 'an act'" and double jeopardy analysis, "which 'focuses on the proof necessary to establish the statutory elements of each offense, rather than on the actual evidence to be presented at trial.'"), quoting Illinois v. Vitale, 447 U.S. 410, 416 (1980).
Halula arguably waived his claim based on the double jeopardy clause by agreeing as part of his plea that his sentences would be consecutive. Cf. Dominguez v. Meehan, 140 Ariz. 329, 332, 681 P.2d 912, 915 (App. 1983) (double jeopardy protection waived by plea). But, because the state did not argue Halula had done so, in our discretion, we address the merits of his argument.
¶6 "The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense." State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772 (App. 2008). Thus, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). This analysis focuses only on the elements of the offenses, not the defendant's conduct. See State v. Eagle, 196 Ariz. 188, ¶ 18, 994 P.2d 395, 399-400 (2000). ¶7 Conversely, § 13-116 prohibits consecutive sentences "when the defendant's conduct is a 'single act.'" State v. Hampton, 213 Ariz. 167, ¶ 64, 140 P.3d 950, 965 (2006), quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211. Thus, a determination whether consecutive sentences are permitted focuses on the facts of the transaction. See State v. Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d 1150, 1155 (App. 2002). To determine whether consecutive sentences are permitted under § 13-116, we apply the following test:
First, we must decide which of the two crimes is the "ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges." Then, we "subtract[ ] from the factual transaction the evidence necessary to convict on the ultimate charge." If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Finally, we consider whether the defendant's conduct in committing the lesser crime "caused the victim to suffer a risk of harm different from or additional to that inherent in the ultimate crime."State v. Urquidez, 213 Ariz. 50, ¶ 7, 138 P.3d 1177, 1179 (App. 2006), quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (citations omitted, alteration in Urquidez).
¶8 Our supreme court determined in Eagle that kidnapping and sexual assault are different crimes for the purposes of double jeopardy analysis. 196 Ariz. 188, ¶ 18, 994 P.2d at 399-400. Although Halula argues Eagle does not apply because the facts constituting the kidnapping are different than those presented here, those facts are not relevant to the analysis. Accordingly, Halula's claim based on the double jeopardy clause fails.
¶9 And we agree with the trial court that consecutive sentences are permitted under § 13-116. Sexual assault plainly is the "ultimate charge" presented here. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211. To convict Halula of that charge, the state was required to prove he "intentionally or knowingly engag[ed] in sexual intercourse . . . with [the victim] without [her] consent." A.R.S. § 13-1406(A). The factual basis for the plea established that Halula pushed or moved the victim to a secluded area before he forced the victim to perform oral sex on him and digitally penetrated her.
¶10 Subtracting the facts necessary to establish sexual assault, sufficient evidence remained to prove the kidnapping charge. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211. As we noted above, before assaulting the victim, Halula pushed or forced her into a secluded area. This conduct plainly constituted kidnapping. See A.R.S. § 13-1304(A) ("A person commits kidnapping by knowingly restraining another person with the intent to . . . [i]nflict . . . physical injury or a sexual offense.").
¶11 And, unlike in Gordon, the restraint necessary for the kidnapping charge here was not limited to that used by Halula during the sexual assault, but also existed beforehand when he forced the victim into a secluded area. See A.R.S. § 13-1301(2) (restraint element of kidnapping may be met by either "confining" person or moving person "from one place to another" without consent). Thus, under the facts presented here, it was not impossible to commit the ultimate crime of sexual assault without committing the secondary crime of kidnapping. Because Halula's conduct did not constitute a single act, the imposition of a consecutive sentence did not violate § 13-116. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211.
¶12 We do not address Halula's claim that the trial court erred in finding the kidnapping constituted "a sufficient extra harm to warrant consecutive sentences." Because Halula's conduct did not constitute a single act, the trial court was not required to consider whether the kidnapping increased the risk of harm to the victim beyond that inherent in the sexual assault. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (if analysis of first and second factors indicates single act under § 13-116, court "will then consider" third factor); see also State v. Anderson, 210 Ariz. 327, ¶ 143, 111 P.3d 369, 400 (2005) (determining offenses were not single act without reaching third factor of Gordon analysis); State v. Boldrey, 176 Ariz. 378, 382-83, 861 P.2d 663, 667-68 (App. 1993) (Gordon does not require reaching third factor if consecutive sentences permissible under first two factors).
¶13 For the reasons stated, although review is granted, relief is denied.