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State v. Johnson

Court of Appeals of Arizona, First Division

August 25, 2016

STATE OF ARIZONA, Appellee,
v.
ELIAS DEWAYNE JOHNSON, Appellant.

         Appeal from the Superior Court in Maricopa County No. CR2013-004934-001 The Honorable Jerry Bernstein, Judge Pro Tempore

          Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee

          Maricopa County Public Defender's Office, Phoenix By Terry Reid Counsel for Appellant

          Judge Maurice Portley delivered the opinion of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.

          OPINION

          PORTLEY, Judge.

         ¶1 In this opinion, we address whether the superior court committed fundamental error by sentencing Elias Dewayne Johnson as a category three repetitive offender based on his six Colorado felony convictions. Because Johnson has shown no error, we affirm.[1]

         I

         ¶2 Johnson removed a "bait bike" from a city-owned pickup truck on April 23, 2014 and was convicted by a jury for burglary in the third degree, a class four felony. At sentencing, the State proved Johnson had six prior felony convictions from Colorado, and the superior court sentenced Johnson to an eight-year prison term as a category three repetitive offender.

         II

         ¶3 Johnson argues his Colorado convictions did not "fall within the statutory definition of a historical prior felony conviction" under Arizona law because they occurred more than five years before he committed this burglary. As a result, he contends he is entitled to be resentenced because the superior court fundamentally erred in sentencing him as a category three repetitive offender under Arizona Revised Statutes ("A.R.S.") section 13-703 (J).[2]

         ¶4 We review issues of statutory interpretation de novo. State v. Peek, 219 Ariz. 182, 183, ¶ 6, 195 P.3d 641, 642 (2008) (citation omitted). When interpreting a statute, our goal is to give effect to the legislature's intent. Id. at 184, ¶ 11, 195 P.3d at 643 (citations omitted). We look first to the language of the statute because it is the best indication of the legislature's intent. Id. (citations omitted). If "the language is clear and unequivocal, it is determinative of the statute's construction." State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007) (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007)); see also Indus. Comm'n v. Old Republic Ins. Co., 223 Ariz. 75, 77-78, ¶¶ 7-8, 219 P.3d 285, 287-88 (App. 2009) (noting we first look to the statute's plain language as the best indicator of legislative intent, and when statutory language is clear and unambiguous, we give effect to it and do not use other methods of statutory interpretation) (citations omitted). In construing sentencing statutes, we "accord substantial deference to the legislature and its policy judgments." State v. Berger, 212 Ariz. 473, 476, ¶ 13, 134 P.3d 378, 381 (2006).

         ¶5 The sentencing statute provides that "a person shall be sentenced as a category three repetitive offender if the person . . . stands convicted of a felony and has two or more historical prior felony convictions." A.R.S. § 13-703(C) (West 2015).[3] The issue then is whether Johnson's Colorado felony convictions are historical prior felony convictions under this Arizona statutory provision. He argues that his Colorado convictions, from 1989 to 2002, are outside the statutory five-year time limit in § 13-105(22)(e), [4] and, as a result, cannot be considered historical prior felony convictions.

         ¶6 In 2012, our legislature modified § 13-703, entitled "Repetitive offenders; sentencing" by amending subsection (M), in relevant part, as follows:

M. For the purposes of . . . subsection C of this section [category three repetitive offender], a person who has been convicted in any court outside the jurisdiction of this state of an offense that if committed in this state would be WAS punishable BY THAT JURISDICTION as a felony is subject to this section. A person who has been convicted as an adult of an offense punishable as a felony under the provisions of any prior ...

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