State v. Johnson

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ELIAS DEWAYNE JOHNSON, Appellant.

No. 1 CA-CR 15-0351
FILED 8-25-2016

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

AFFIRMED

COUNSEL

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

OPINION

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

P O R T L E Y, 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

1 We address Johnson’s other arguments on appeal in a memorandum
decision filed contemporaneously with this opinion.
2 We cite to the current version of all statutes unless otherwise noted.

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 STATE V. JOHNSON
Opinion of the Court
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 code in this state OR THE
JURISDICTION IN WHICH THE OFFENSE
WAS COMMITTED is subject to this section.

2012 Ariz. Sess. Laws, ch. 190, § 2, (2d. Reg. Sess.).

3 The legislature revised portions of § 13-703 that will be effective August
6, 2016. 2016 Ariz. Sess. Laws, ch. 43, § 2 (2nd Reg. Sess.). Those revisions
are immaterial for purposes of this opinion.
4 In calculating the five-year time period, the statute excludes time spent

in jail or prison, which is not relevant here. A.R.S. § 13-105(22)(e).

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 STATE V. JOHNSON
Opinion of the Court
¶7 The 2012 amendment to § 13-703(M) clearly demonstrates
that our legislature changed our laws regarding enhanced criminal
sentences so that trial courts can consider, for sentencing purposes,
whether a defendant had one or more prior felony convictions from
another state, or states, in order to determine whether the defendant was a
repetitive offender under § 13-703(C). See State v. Moran, 232 Ariz. 528,
535, ¶ 21, 307 P.3d 95, 102 (App. 2013). And as relevant here, § 13-703(C)
defined a category three repetitive offender as a defendant who “stands
convicted of a felony and has two or more historical prior felony
convictions.” A.R.S. § 13-703(C).

¶8 At the time of Johnson’s offense, a “historical prior felony
conviction” included “[a]ny felony conviction that is a third or more prior
felony conviction.” A.R.S. § 13-105(22)(d) (West 2014). And we know
from A.R.S. § 1-213 and State v. Jean, that the term “any” is to be broadly
inclusive, has no “restrictions or limitations on the term modified,” and, as
a result the legislature’s reference to any third felony conviction in § 13-
105(22)(d) “included third felony convictions from any court of another
state under § 13-703(M).” 2 CA-CR 2015-0184, 2016 WL 2864785, at *3, ¶
12 (Ariz. App. May 16, 2016) (citation omitted).

¶9 Moreover, when the term “any felony conviction that is a
third or more prior felony conviction” was addressed in its prior statutory
form, A.R.S. § 13-604(U)(1)(d) (1996), see State v. Garcia, 189 Ariz. 510, 512
n.1, 943 P.2d 870, 872 n.1 (App. 1997), and later, A.R.S. § 13-
604(V)(1)(d)(1999), see State v. Decenzo, 199 Ariz. 355, 357, ¶ 3, 18 P.3d 149,
151 (App. 2001), this court reiterated that “the legislature intended for trial
courts to count prior felony convictions in chronological order and that
the term third typically denotes the most recent item or occurrence in a
series of three,” id. at ¶ 5 (quoting Garcia, 189 Ariz. at 513, 943 P.2d at 873)
(internal quotation marks omitted). Additionally, “once a person has been
convicted of three felony offenses, the third in time can be used to enhance
a later sentence, regardless of passage of time.” Garcia, 189 Ariz. at 515,
943 P.2d at 875.

¶10 Applying the guidance from statute and case law, Johnson’s
third Colorado felony conviction would be his first historical prior felony
conviction for sentencing purposes, his fourth Colorado felony conviction
would be his second historical prior felony conviction, and his fifth
Colorado felony conviction would be his third historical prior felony
conviction, A.R.S. § 13-105(22)(d), requiring him to be sentenced as a
category three repetitive offender under A.R.S. § 13-703(C). See Decenzo,
199 Ariz. at 358, ¶ 9, 18 P.3d at 152. Consequently, the trial court properly
sentenced Johnson as a category three repetitive offender.

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 STATE V. JOHNSON
Opinion of the Court
¶11 Johnson argues that the 2012 amendments also added a new
definition to historical prior felony conviction; namely, as relevant here,
“(e) Any offense committed outside the jurisdiction of this state that was
punishable by that jurisdiction as a felony, that was committed within the
five years immediately preceding the date of the present offense.” A.R.S. §
13-105(22)(e) (West 2012); 2012 Ariz. Sess. Laws, ch. 190, § 1 (2nd Reg.
Sess.). As a result, he argues that none of his Colorado felony convictions
can be considered because his last Colorado felony conviction occurred
more than five years before he removed the bicycle in this case, and, as a
result, cannot be considered as a historical prior felony conviction under
A.R.S. § 13-703(C).

¶12 His argument overlooks two factors. First, § 13-105 provides
that its definitions are to control “unless the context otherwise requires.”
In State v. Thues, we found that “the context otherwise requires” a
different definition of felony when determining that “possession of drug
paraphernalia for personal use remains a felony when an offender is
sentenced under Proposition 200.” 203 Ariz. 339, 341, ¶ 9, 54 P.3d 368, 370
(App. 2002). Because the 2012 amendment to § 13-703(M), includes
felonies committed outside of Arizona, the context of the statute supports
our conclusion that the Colorado felonies are historical prior felonies as
defined under § 13-105(22)(d).

¶13 Second, because § 13-703 is a specific sentencing statute
applicable to repetitive offenders and § 13-703(M) defines the felonies, it
has primacy over the general definitions in § 13-105. See Thues, 203 Ariz.
at 341, ¶ 9, 54 P.3d at 370 (citing Ford v. State, 194 Ariz. 197, 199, ¶ 7, 979
P.2d 10, 12 (App. 1999), for the proposition that when general and specific
statutes address same subject in contrasting manner, the more specific
statute controls); see also State v. Davis, 119 Ariz. 529, 534, 582 P.2d 175, 180
(1978). Accordingly, given the 2012 amendment to § 13-703(M), we cannot
judicially limit the application of § 13-105(22)(d) to only Arizona prior
felony convictions in light of the legislature’s specific intent to consider
out-of-state felony convictions. See City of Phx. v. Donofrio, 99 Ariz. 130,
133, 407 P.2d 91, 93 (1965) (“[C]ourts will not read into a statute something
which is not within the manifest intention of the legislature as gathered
from the statute itself.”) (citation omitted). We conclude, as a result, given
the amendment to § 13-703(M), the plain language of § 13-105(22)(d)
demonstrates a legislative intent that a third or more felony conviction
from jurisdictions other than Arizona was, at the time of the offense in this
case, to be considered a historical prior felony conviction. See Jean, 2 CA-
CR 2015-0184, 2016 WL 2864785, at *3, ¶14 (stating that “[c]lear statutory
text is determinative on the question of meaning.”).

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 STATE V. JOHNSON
Opinion of the Court
¶14 Although § 13-105(22)(e) was added in 2012, we have long
held that the term “third or more prior felony conviction” in § 13-
105(22)(d) means that “once a person has been convicted of three felony
offenses, the third in time can be used to enhance a later sentence,
regardless of passage of time.” Garcia, 189 Ariz. at 515, 943 P.2d at 875.
Consequently, the 2012 addition of § 13-105(22)(e), controls out-of-state
felonies “committed with the five years immediately preceding the date of
the present offense,” but does not impose that limit onto § 13-105(22)(d)
for prior felony convictions committed more than five years before the
present offense.

¶15 Johnson also maintains that § 13-105(22)(d) was ambiguous
in 2013 because, in 2015, the legislature amended the definition of
“historical prior felony conviction” by adding the following emphasized
text to the provision: “Any felony conviction that is a third or more prior
felony conviction. For the purposes of this subdivision, ‘prior felony conviction’
includes any offense committed outside the jurisdiction of this state that was
punishable by that jurisdiction as a felony.” See 2015 Ariz. Sess. Laws, ch. 74,
§ 1 (1st Reg. Sess.). Johnson asserts the 2015 revision demonstrates that “§
13-105(22)(d) did not apply to felonies committed in other jurisdictions at
the time of the offense in this matter.”

¶16 At the time Johnson committed the burglary, the legislature,
as noted in ¶ 13, supra, intended a defendant’s third or more foreign
felony conviction to be considered a historical prior felony conviction.
The 2015 amendment to § 13-105(22)(d) did not change that, but made the
general definition of historical prior felony conviction consistent with the
sentencing provision in § 13-703(M).

¶17 Before 2012, courts addressing whether foreign convictions
constituted historical prior felony convictions for enhanced sentencing
purposes were required to “first conclude that the foreign conviction
includes ‘every element that would be required to prove an enumerated
Arizona offense.’” State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753,
755 (2007) (quoting State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320, 1325
(1988)); see also 2012 Ariz. Sess. Laws, ch. 190, §§ 1-2 (2nd Reg. Sess.);
Matthew Stoloff, Non-Death Penalty Criminal Law: A Discussion of the
Arizona Supreme Court’s 2006-2007 Decisions, 40 Ariz. St. L.J. 905, 928 (2008)
(“Crawford did not break any new ground regarding Arizona’s
longstanding foreign conviction analysis, but it served as a reminder for
sentencing courts regarding the proper procedure for determining
whether a foreign conviction can be used to enhance a defendant’s
sentence.”). In 2012, the legislature superseded Crawford and simplified
the use of foreign felony convictions for sentencing purposes. Moran, 232

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 STATE V. JOHNSON
Opinion of the Court
Ariz. 528, 535, ¶ 21, 307 P.3d 95, 102 (App. 2013). Specifically, the
legislature abandoned the comparative elements approach for most
foreign convictions and revised the sentencing scheme to ensure that if a
foreign conviction is considered a felony by the jurisdiction in which the
offense was committed, that conviction would be considered a historical
prior felony conviction. 2012 Ariz. Sess. Laws, ch. 190, §§ 1-2 (2nd Reg.
Sess.). Thus, A.R.S. § 13-703(M) was revised.

¶18 The 2012 amendments to § 13-703(M) adding out-of-state
felony convictions demonstrate a legislative intent that trial courts should
consider those out-of-state felony convictions under § 13-105(22)(d), when
determining whether a defendant is a repetitive offender. Moreover, the
2015 amendment to § 13-105(22)(d) was not added to address whether
out-of-state convictions could properly be considered under § 13-
105(22)(d), but, rather, to ensure that courts no longer engaged in a
comparative elements analysis when determining whether a defendant’s
third or more out-of-state conviction constituted a historical prior felony
conviction. The 2015 amendment to § 13-105(22)(d) made it clear that
courts are not required to do so; trial courts must simply determine
whether the out-of-state prior conviction is considered a felony by the
foreign jurisdiction in which the offense was committed. Cf. Ariz. Bd. of
Regents v. State, 160 Ariz. 150, 157, 771 P.2d 880, 887 (App. 1989) (noting
that subsequent legislation, which clarifies a statutory scheme, though
“not necessarily controlling, is strongly indicative of the legislature’s
original intent”).

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 STATE V. JOHNSON
Opinion of the Court
¶19 Based on the language of § 13-703(M) that out-of-state felony
convictions be considered for sentencing purposes, and plain language in
§ 13-105(22)(d) at the time Johnson committed this offense, his
chronologically fourth Colorado felony conviction amounts to his second
historical prior felony conviction for purposes of § 13-703(C). See State v.
Christian, 205 Ariz. 64, 67 n.8, ¶ 8, 66 P.3d 1241, 1244 n.8 (2003) (noting that
for an offense to qualify as a “third or more prior felony conviction” under
the predecessor statute to § 13-105(22)(d), it must be the third conviction
chronologically) (citation omitted). Thus, Johnson has two or more
historical prior felony convictions, and the court properly sentenced him
as a category three repetitive offender. No error, fundamental or
otherwise, occurred.

CONCLUSION

¶20 Johnson’s conviction and sentence are affirmed.

Amy M. Wood • Clerk of the court
FILED: AA

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