No. 2 CA-CR 2019-0160
COUNSEL Mark Brnovich, Arizona Attorney General Michael T. O'Toole, Acting Section Chief Counsel By Jana Zinman, Assistant Attorney General, Phoenix Counsel for Appellee Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pima County
The Honorable Christopher C. Browning, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Mark Brnovich, Arizona Attorney General
Michael T. O'Toole, Acting Section Chief Counsel
By Jana Zinman, Assistant Attorney General, Phoenix
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Eppich concurred. STARING, Presiding Judge:
¶1 Quinton Nunn appeals from his convictions and sentences for promoting prison contraband, possession of drug paraphernalia, and possession of a dangerous drug. And, specifically, he contends his conviction for possession of a dangerous drug violates the prohibition against double jeopardy. We agree, and therefore vacate that conviction, but otherwise affirm his convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Nunn. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In December 2015, Nunn, then an inmate at a state prison, was observed on video engaging in suspicious activity in a restroom in the prison's visiting area. After a corrections officer confronted him, Nunn produced "a purple, log shaped item" that he had attempted to conceal in his body. A lab analysis later determined the purple item contained three chemicals found in synthetic marijuana and classified as dangerous drugs.
¶3 In December 2018, after a jury trial held in absentia, Nunn was convicted as described above. That same day, the trial court issued a bench warrant for his arrest. Nunn did not appear in court until he was arrested and brought into custody in May 2019. The following month, he was sentenced to concurrent prison terms, the longest of which was fourteen years. This appeal followed.
¶4 We have an independent duty to determine whether we have jurisdiction on appeal. State v. Perry, 245 Ariz. 310, ¶ 3 (App. 2018). "Our jurisdiction is prescribed by statute and we have no authority to entertain an appeal over which we do not have jurisdiction." State v. Limon, 229 Ariz. 22, ¶ 3 (App. 2011).
¶5 The Arizona Constitution provides the accused "the right to appeal in all cases." Ariz. Const. art. II, § 24. However, a "defendant's voluntary delay of sentencing can be regarded as a knowing, voluntary, and intelligent waiver" of this right. State v. Bolding, 227 Ariz. 82, ¶ 20 (App. 2011). Accordingly, A.R.S. § 13-4033(C) does not allow a defendant to appeal a final judgment of conviction if his "absence prevents sentencing from occurring within ninety days after conviction and [he] fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary."
¶6 Nunn acknowledges his "absence delayed his sentencing for more than 90 days." Nonetheless, he argues application of § 13-4033(C) to bar his appeal would be unconstitutional. Specifically, he claims post-conviction relief under Rule 32, Ariz. R. Crim. P., would also be unavailable to him and asserts "[i]t is unconstitutional and a violation of public policy to leave a defendant with no right of review of his convictions and sentences." He also argues he was not provided with notice sufficient to render any waiver of his right to appeal knowing, voluntary, and intelligent. Lastly, Nunn asserts that § 13-4033(C), by its terms, does not bar the appeal of a sentence imposed, and thus, if it applies, it should be interpreted to allow his sentence and conviction to be vacated in order to avoid an absurd result.
On reply, Nunn also claims State v. Reed, 248 Ariz. 72, ¶ 15 (2020), renders § 13-4033(C) unconstitutional because it provides that the legislature lacks authority to modify a defendant's right to appeal under the Arizona Constitution. See Ariz. Const. art. II, § 24. Nunn also argues on reply that "[t]he State ignore[d his] challenge to the constitutionality of applying A.R.S. § 13-4033(C)" in its answering brief and thus "confessed error and waived" any response to his argument. However, "we do not determine constitutional issues unless a decision is necessary to determine the merits of the action." State v. Yslas, 139 Ariz. 60, 63 (1984). Given our resolution of the matter, we need not reach the constitutional claim.
¶7 The state contends "Nunn had sufficient notice that he would lose his right to appeal if he failed to appear at sentencing within 90 days of his convictions," and he therefore voluntarily waived his right to appeal. Specifically, it points to the release conditions Nunn signed before absconding, which warned him he could lose his right to appeal if he failed to appear at sentencing. The state also claims the trial court verbally admonished Nunn as to the consequences of his failure to appear.
¶8 We conclude Nunn was not adequately warned of the consequences of delaying sentencing by absconding. For § 13-4033(C) to bar a defendant's appeal, Bolding requires that he had been informed "he could forfeit the right to appeal if he voluntarily delays his sentencing for more than ninety days." 227 Ariz. 82, ¶ 20 (emphasis added). Here, the warning Nunn received regarding his right to appeal appeared in the fine print of a form describing his conditions of release, which stated: "IF CONVICTED, YOU WILL BE REQUIRED TO APPEAR FOR SENTENCING. IF YOU FAIL TO APPEAR, YOU MAY LOSE YOUR RIGHT TO A DIRECT APPEAL." Thus, Nunn was not notified he could lose his right to appeal if he delayed sentencing for over ninety days; rather, he was only informed he could lose this right if he failed to appear at a sentencing hearing that had already been set. Moreover, despite the state's contentions, on the day Nunn was informed of these conditions, the trial court only admonished him that the state could proceed in his absence if he failed to appear for trial.
¶9 Further, even if Nunn was adequately warned of the consequences of delaying his sentencing, the trial court nonetheless did not make a finding at sentencing that he had knowingly, voluntarily, and intelligently waived his right to appeal as required by State v. Raffaele, 249 Ariz. 474, ¶ 15 (App. 2020). In that case, we held that at sentencing, the state is "required to present evidence that the defendant knowingly, voluntarily, and intelligently waived his right to appeal by delaying sentencing by more than 90 days." Id. We further explained that based on such a showing, as well as any evidence presented by the defendant indicating his failure to appear was involuntary, the court must then "weigh both parties' positions and make adequate findings of fact" as to whether the defendant waived his right to appeal. Id.
¶10 Here, as in Raffaele, the trial court did not make these required findings. See id. Thus, "[b]ecause . . . waiver of the right to an appeal is not self-effectuating," § 13-4033(C) does not bar this appeal. Raffaele, 249 Ariz. 474, ¶ 15. Accordingly, we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶11 Nunn primarily contends his convictions for promoting prison contraband and possession of a dangerous drug violate the constitutional prohibitions against double jeopardy. "We review de novo whether double jeopardy applies." State v. Brown, 217 Ariz. 617, ¶ 12 (App. 2008). A conviction or sentence that violates double jeopardy constitutes fundamental, reversible error. State v. Jurden, 239 Ariz. 526, ¶ 7 (2016).
¶12 A defendant is unconstitutionally subject to double jeopardy when he faces multiple punishments for a single offense. State v. Jones, 235 Ariz. 501, ¶ 13 (2014). Thus, the right to be free from double jeopardy "is violated if [a defendant] is convicted of both a greater and lesser-included offense." State v. Becerra, 231 Ariz. 200, ¶ 20 (App. 2013); see State v. Price, 218 Ariz. 311, ¶ 4 (App. 2008). A crime is a lesser-included offense of another when it only consists of some, but not all, elements of the greater crime, making it so the greater crime cannot be committed without the lesser also being committed. State v. Cope, 241 Ariz. 323, ¶ 5 (App. 2016). However, "[t]he same conduct may result in different offenses if each offense 'requires proof of a fact which the other does not.'" Jones, 235 Ariz. 501, ¶ 13 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
¶13 Nunn claims that "because possession of a dangerous drug is a lesser-included offense of promoting prison contraband, the imposition of sentences for both offenses violates double jeopardy." The state, however, responds that because promoting prison contraband and possession of a dangerous drug each require an element that the other does not, possession of a dangerous drug is not a lesser-included offense of promoting prison contraband. Thus, it concludes, there was no double jeopardy violation.
The state also asserts no double jeopardy violation occurred because "a person does not always commit possession of dangerous drugs when the person commits promoting prison contraband" and the fact that "the statutes are in separate chapters of the Arizona Criminal Code and target different harms" shows that the legislature intended to allow multiple punishments. --------
¶14 Section 13-2505(A)(3), A.R.S., provides that a person promotes prison contraband by "knowingly . . . possessing contraband while being confined in a correctional facility," and prison contraband includes "any dangerous drug," A.R.S. § 13-2501(1). Because "a contrary legislative purpose" does not plainly appear, the required mental state of "knowingly" applies to each element of the offense. See A.R.S. § 13-202(A). However, our supreme court has made clear that under § 13-2505(A), "the state need prove only that the defendant knowingly possessed the item, not that the defendant knew it was contraband." State v. Francis, 243 Ariz. 434, ¶ 1 (2018).
¶15 Section 13-3407(A)(1), A.R.S., on the other hand, provides that a person "shall not knowingly . . . [p]ossess or use a dangerous drug." Despite the state's assertion that this provision, unlike § 13-2505(A)(3), "requires that the defendant knew the nature of the substance" possessed, i.e., that it was a dangerous drug, we see no legal basis for making such a distinction. The court in Francis made clear that knowledge of an item's legal status—there, whether a cell phone was considered prison contraband—is irrelevant to whether it was knowingly possessed, and that ignorance of this status only amounts to "ignorance or mistake as to a matter of law." 243 Ariz. 434, ¶ 10 (quoting A.R.S. § 13-204(B)).
¶16 Given this, Nunn's conviction for possession of a dangerous drug required proof he had knowingly possessed "FLURO-AMB AND/OR XLR-11 AND/OR FUB-AMB," or in other words, an item that constituted a dangerous drug. And, Nunn's conviction for promoting prison contraband required that he had knowingly possessed such an item while confined in prison. Neither of these provisions required Nunn to know that the item he had possessed was legally classified as a "dangerous drug" or "prison contraband" to sustain a conviction, and the elements in common made them greater and lesser-included offenses. Therefore, Nunn faced multiple punishments for possessing a dangerous drug, violating double jeopardy. See Jones, 235 Ariz. 501, ¶ 13; Cope, 241 Ariz. 323, ¶ 5.
¶17 For the foregoing reasons, we vacate Nunn's conviction and sentence for possession of a dangerous drug but otherwise affirm his convictions and sentences. See State v. Salcido, 238 Ariz. 461, ¶¶ 17-18 (App. 2015); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 21-22 (App. 1998) (conviction for lesser-included offense vacated based on double jeopardy violation).