Opinion
No. 1 CA-CR 10-0787
10-20-2011
STATE OF ARIZONA, Appellee, v. DAWN MICHELLE KNAPP, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix
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. 31.34
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-151380-001SE
The Honorable Kristin C. Hoffman, Judge
The Honorable Joseph C. Kreamer, Judge
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR
RESENTENCING
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Liza-Jane Capatos, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Joel M. Glynn, Deputy Public Defender
Attorneys for Appellant
Phoenix WINTHROP, Chief Judge
¶1 Dawn Michelle Knapp appeals her enhanced sentences resulting from her convictions for possession or use of a dangerous drug (methamphetamine) and misconduct involving weapons ("the 2009 offenses"). See Ariz. Rev. Stat. ("A.R.S.") §§ 13-3407 (2010), -3102 (Supp. 2010). Knapp argues that because the prior conviction used to enhance her sentences was designated a misdemeanor before her convictions and sentences for the 2009 offenses, she was not a category two repetitive offender as defined by A.R.S. § 13-703(B)(2) (Supp. 2010). She therefore maintains that the superior court erred in relying on that prior conviction to enhance her sentences. The State confesses error, and we agree. Consequently, although we affirm Knapp's convictions, we vacate her sentences and remand for resentencing.
We cite the current version of the statutes if no revisions material to our analysis have since occurred.
FACTS AND PROCEDURAL HISTORY
¶2 On November 21, 2005, Knapp committed the crime of possessing drug paraphernalia ("the 2005 offense"), which was charged as a class six felony, and a jury convicted Knapp of that crime on July 20, 2006. At sentencing, the superior court placed Knapp on probation and refrained from designating the 2005 offense as a felony or misdemeanor. Knapp was discharged from probation in January 2009, and the 2005 offense remained a class six undesignated felony.
Under A.R.S. § 13-604(A) (2010), if a person who has not previously been convicted of two or more felonies is convicted of a class six felony not involving a dangerous offense, the trial court "may place the defendant on probation . . . and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor." Accord State v. Russell, 226 Ariz. 416, 417, ¶ 1, 249 P.3d 1116, 1117 (App. 2011) ("[A] felony offense remains a felony unless and until a court designates it a misdemeanor after conviction.").
¶3 On August 2, 2009, Knapp committed the 2009 offenses, each a class four felony, and she was charged by direct complaint on August 4, 2009. A supervening indictment issued on November 24, 2009. In December 2009, before trial on the 2009 offenses, the State alleged that the 2005 offense constituted a historical prior felony conviction, and Knapp was therefore subject to enhanced sentences pursuant to A.R.S. § 13-703(B)(2).
¶4 The superior court, however, designated the 2005 offense a misdemeanor in October 2009. Knapp moved to dismiss the State's allegation of the prior felony conviction, arguing that her conviction for the 2005 offense could not be considered a historical prior felony conviction because it had been designated a misdemeanor before any conviction for the 2009 offenses. The superior court denied Knapp's motion, finding that she was eligible for sentencing as a repetitive offender because the prior conviction constituted a felony at the time she allegedly committed the 2009 offenses.
¶5 On July 27, 2010, a jury convicted Knapp of both 2009 offenses as charged. Knapp was sentenced on September 22, 2010. After finding that Knapp had one historical prior felony conviction for sentencing purposes, the superior court sentenced Knapp as a category two repetitive offender and imposed concurrent, minimum three-year sentences for each count, with credit for thirty-nine days of presentence incarceration.
¶6 Knapp filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21 (2003), 13-4031 (2010), and 13-4033(A) (2010).
ANALYSIS
¶7 In general, we review a sentence imposed by the superior court for an abuse of discretion. State v. Arbolida, 206 Ariz. 306, 307-08, ¶ 5, 78 P.3d 275, 276-77 (App. 2003); State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App. 2003). The interpretation of statutes, however, is a question of law that we review de novo. Arbolida, 206 Ariz. at 308, ¶ 5, 78 P.3d at 277. In interpreting a statute, our primary purpose is to give effect to the legislature's intent. State v. Hinden, 224 Ariz. 508, 510, ¶ 9, 233 P.3d 621, 623 (App. 2010). To that end, we first consider the statute's language because it is "the best and most reliable index of a statute's meaning." Id. (citations omitted). If the statutory language is plain and unambiguous, no additional analysis is necessary. Id.
¶8 Under A.R.S. § 13-703(B)(2), an adult is eligible for an enhanced sentence if she "stands convicted of a felony and has one historical prior felony conviction." The conjunction "and" in the statute indicates that both conditions must be satisfied for the sentencing enhancement to apply. See Bither v. Country Mut. Ins. Co. , 226 Ariz. 198, 200, ¶ 10, 245 P.3d 883, 885 (App. 2010). Further, under a plain reading of the statute, the fact the legislature used the present tense in setting forth the conditions that must be present for a person to be sentenced as a repetitive offender suggests that both conditions must be met at the same time. See Hinden, 224 Ariz. at 510, ¶ 10, 233 P.3d at 623; Town of Wickenburg v. State, 115 Ariz. 465, 468, 565 P.2d 1326, 1329 (App. 1977).
A "historical prior felony conviction" includes "[a]ny class 4, 5 or 6 felony . . . that was committed within the five years immediately preceding the date of the present offense." A.R.S. § 13-105(22)(c) (2010).
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¶9 In this case, Knapp was convicted of the 2009 offenses on July 27 and sentenced on September 22, 2010. Thus, as of July 27, 2010, she met the first requirement of A.R.S. § 13-703(B)(2) because for each count she stood convicted of a felony, but because her prior conviction for the 2005 offense was designated a misdemeanor before her conviction for the 2009 offenses, she did not at the same time meet the second requirement of having a historical prior felony conviction. See A.R.S. § 13-604(A) ("The [undesignated] offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor." (emphasis added)). Accordingly, Knapp was not a category two repetitive offender as defined by A.R.S. § 13-703(B)(2), and the superior court erred in imposing enhanced sentences. Cf. State v. Barr, 217 Ariz. 445, 448, ¶ 12, 175 P.3d 694, 697 (App. 2008) (rejecting the defendant's argument that the trial court improperly treated a prior conviction as a felony for sentencing purposes where the prior conviction was reduced to a misdemeanor after sentencing on the subsequent offense); see also In re Beren, 178 Ariz. 400, 402, 874 P.2d 320, 322 (1994) (acknowledging that our supreme court has previously held "that an open-ended conviction is deemed a felony conviction for criminal sentencing considerations until the court designates the offense a misdemeanor" (citation omitted)).
CONCLUSION
¶10 Knapp's prior conviction for the 2005 offense was designated a misdemeanor before she was convicted and sentenced for the 2009 offenses; accordingly, she was not a category two repetitive offender as defined by A.R.S. § 13-703(B)(2), and she should not have received enhanced sentences. Consequently, although we affirm Knapp's convictions, we vacate her sentences and remand for resentencing.
LAWRENCE F. WINTHROP, Chief Judge CONCURRING: JOHN C. GEMMILL, Judge PHILIP HALL, Judge