Appeal from the Superior Court in Maricopa County. No. CR2012-150667-001. The Honorable Brian Kaiser, Commissioner.
Arizona Attorney General's Office, Phoenix, By Adriana M. Zick, Counsel for Appellee.
Maricopa County Public Defender's Office, Phoenix, By Jeffrey L. Force, Counsel for Appellant.
Judge Patricia K. Norris delivered the opinion of the Court, in which Presiding Judge Margaret H. Downie joined. Judge Randall M. Howe dissented.
[¶1] Samkeita Jahveh Jurden appeals from his convictions and sentences for two counts of resisting arrest, one count of aggravated assault, and one count of criminal trespass in the second degree. On appeal, Jurden argues that the two resisting arrest convictions, one for each officer involved in the altercation, constituted a single offense under the resisting arrest statute, Arizona Revised Statutes (" A.R.S." ) section 13-2508(A)(1) (Supp. 2014), and thus his second resisting arrest conviction and sentence violated the Double Jeopardy Clause. We agree with Jurden. Accordingly, we vacate his second conviction and sentence for resisting arrest and affirm his other convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
[¶2] On September 24, 2012, Jurden--shirtless and shoeless--walked into a department store with an unleashed dog. A store security guard called police after Jurden refused to leave. Two police officers arrived and asked Jurden to leave the store, but he refused to do so. The officers then attempted to arrest Jurden for criminal trespass and a struggle broke out between Jurden and the officers. Jurden resisted their attempts to arrest him by biting and kicking one officer, and by flailing and pulling his arms away from the other officer. After struggling with Jurden for approximately two minutes, the officers subdued and handcuffed him.
[¶3] A grand jury indicted Jurden on two counts of aggravated assault, two counts of resisting arrest (counts 3 and 4) under A.R.S. § 13-2508(A)(1)--one count for each officer--and one count of criminal trespass in the second degree. The jury found Jurden guilty on one count of aggravated assault, on both counts of resisting arrest, and on the criminal trespass count. The superior court sentenced Jurden to 10 years for aggravated assault, 3.75 years on each resisting arrest conviction, and 4 months for criminal trespass, with the sentences to run concurrently. In imposing concurrent sentences, the court explained:
I can't make a determination or I can't find, based on what I saw at trial or what I see in the video, that the defendant was somehow targeting or intending to commit the offenses specifically as to one officer and then another. Perhaps, if there were
some lengthy delay between one event and another, there might be a better justification of the idea of consecutive sentences. But this all starts and ends in just one big melee, really, and so the idea of consecutive sentences here doesn't seem appropriate to me, under the circumstances.
[¶4] As explained above, on appeal Jurden argues the two resisting arrest convictions constituted but one offense and thus his second resisting arrest conviction and sentence violated the Double Jeopardy Clause of the United States Constitution. U.S. Const. amend. V. Jurden raises this argument for the first time on appeal and thus we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ ¶ 19-20, 115 P.3d 601, 607 (2005). We note, however, that a sentence in violation of the Double Jeopardy Clause constitutes fundamental error. State v. McGill, 213 Ariz. 147, 153, ¶ 21, 140 P.3d 930, 936 (2006).
[¶5] The Double Jeopardy Clause affords a defendant three basic protections: first, it bars a second prosecution for the same offense after an acquittal; second, it bars a second prosecution for the same offense after a conviction; and third, it bars multiple punishments for the same offense--which is the issue presented in this appeal. Ohio v. Johnson, 467 U.S. 493, 497-98, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); see also State v. Eagle, 196 Ariz. 188, 190, ¶ 6, 994 P.2d 395, 397 (2000) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980)). While the bar on multiple trials is designed to ensure the government " does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence," the bar on multiple punishments for the same offense serves a different purpose. Johnson, 467 U.S. at 498-99, 104 S.Ct. at 2540. That prohibition is designed to " ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Id. at 499, 104 S.Ct. at 2540-41. This is because " the substantive power to prescribe crimes and determine punishments is vested with the legislature." Id.
[¶6] As an initial matter, we note the parties agree, and the evidence supports, that the two resisting arrest charges and resulting convictions arose out of a single, uninterrupted event. Thus, we are not faced with a situation involving distinct, separate events which could give rise to multiple counts and convictions for resisting arrest. See, e.g., People v. Moreno, 32 Cal.App.3d Supp. 1, 108 Cal.Rptr. 338, 340 (Cal.App. Dep't S.Ct. 1973) (defendant resisted arrest at residence then approximately one-half hour later resisted officer while being brought to booking desk).
[¶7] Whether a particular course of conduct involves more than one offense turns on the legislatively established " allowable unit of prosecution." As explained by the United States Supreme Court in Sanabria v. United States :
It is Congress, and not the prosecution, which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. But once Congress has defined a statutory offense by its prescription of the " allowable unit of prosecution," that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct " offenses" under the statute depends on this congressional choice.
437 U.S. 54, 69-70, 98 S.Ct. 2170, 2181-82, 57 L.Ed.2d 43 (1978) (citations omitted); see also State v. Burdick, 211 Ariz. 583, 585, ¶ 5, 125 P.3d 1039, 1041 (App. 2005) (" Whether a defendant can be punished for each victim of the crime of disorderly conduct is an issue of legislative intent." ); State v. Powers, 200 Ariz. 123, 126, ¶ 8, 23 P.3d 668, 671 (App. 2001) (" Whether one or more offenses occurred here requires us to interpret [the statute]." ).
[¶8] Although Arizona case law has not explicitly defined " allowable unit of prosecution," our courts have implicitly recognized that a " unit of prosecution" defines the scope of the conduct that comprises the offense.
See State v. McPherson, 228 Ariz. 557, 560, ¶ 7, 269 P.3d 1181, 1184 (App. 2012) (separate punishments for different images of child pornography appropriate " because the legislature intended the unit of prosecution to be each individual 'depiction'" ); Burdick, 211 Ariz. at 585-86, ¶ ¶ 5-10, 125 P.3d at 1041-42 (addressing whether " unit of prosecution" for disorderly conduct is conduct or victims); see also State v. Schoonover, 281 Kan. 453, 133 P.3d 48, 80 (Kan. 2006):
If the double jeopardy issue arises because of convictions on multiple counts for violations of a single statute, the test is: How has the legislature defined the scope of conduct which will comprise one violation of the statute ? Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit ...