SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0033-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 06-0742
CHARLES EUGENE SMITH, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2005-142402-001 DT
)
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Joseph B. Heilman, Judge
________________________________________________________________
Opinion of the Court of Appeals, Division One
217 Ariz. 308, 173 P.3d 472 (2007)
VACATED AND REMANDED
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Catanni, Chief Counsel, Criminal Appeals
Craig W. Soland, Assistant Attorney General
Joseph T. Maziarz, Assistant Attorney General
Nicholas D. Acedo, Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Stephen R. Collins, Deputy Public Defender
Attorneys for Charles Eugene Smith
________________________________________________________________
R Y A N, Justice
¶1 This case requires us to decide if a defendant’s claim
that prior felony convictions from other jurisdictions are
legally insufficient for sentence enhancement purposes can be
reviewed on appeal when he did not preserve the claim in the
trial court. We hold that despite the lack of a timely
objection, such a claim is reviewable for fundamental error.
I
¶2 A jury convicted Charles Eugene Smith of one count of
theft of means of transportation, a class three felony, and armed
robbery, a class two dangerous felony. The State alleged three
prior felony convictions for purposes of sentence enhancement:
(1) a 1988 California robbery conviction; (2) a 1992 Florida
resisting arrest conviction; and (3) a 1992 Florida robbery
conviction.
¶3 Arizona Revised Statutes (“A.R.S.”) section 13-604(N)
(2001) provides in part that “[a] person who has been convicted
in any court outside the jurisdiction of this state of an offense
which if committed within this state would be punishable as a
felony . . . is subject to the provisions of [§ 13-604].”
Consequently, Smith’s foreign convictions may be used to enhance
his sentences only if the offenses for which he was convicted
would be felonies in Arizona.
¶4 During the sentencing proceeding, the trial judge asked
defense counsel if he agreed that Smith’s California robbery
conviction would meet Arizona’s statutory requirements. Counsel
answered, “That’s correct[,] Your Honor.” When asked about the
2
Florida resisting arrest conviction, Smith’s attorney similarly
replied, “[W]e are not disputing that that is a prior.” The
trial judge then asked if “the defendant concedes this is, in
fact, an allegeable prior felony conviction[?]” Smith’s attorney
responded, “Yes, Your Honor.”1 The judge also asked Smith’s
attorney to state his position on the Florida robbery conviction.
He replied, “Your Honor, we don’t dispute that [it qualifies as a
historical prior felony conviction].”2
¶5 The court enhanced Smith’s sentences under A.R.S. § 13-
604(B). The judge sentenced Smith to 6.5 years for theft of
means of transportation. Without explanation, the judge treated
the armed robbery as a non-dangerous offense, sentencing Smith to
a concurrent term of 9.25 years, even though the jury had found
dangerousness. The State did not object to this sentence.
¶6 On appeal, Smith argued that his sentences were
improperly enhanced. He maintained that none of his three prior
1
The State correctly advised the court that that the Florida
resisting arrest conviction was too old to be allegeable under
A.R.S. § 13-604(W)(2)(c) (Supp. 2005) (stating that a prior
class six felony conviction must have been committed “within the
five years . . . preceding the date of the present offense” to
qualify as a historical prior felony conviction). In Arizona,
resisting arrest is a class six felony. A.R.S. § 13-2508(B)
(2001).
2
Because of the age of the convictions, the trial judge
treated them as one historical prior felony conviction under
A.R.S. § 13-604(W)(2)(d), which defines a “historical prior
felony conviction” as “[a]ny felony conviction that is a third or
more prior felony conviction.”
3
foreign convictions strictly conformed to the felony statutes in
Arizona as required by A.R.S. § 13-604(N). Relying on two
opinions from this Court, State v. Fagnant, 176 Ariz. 218, 860
P.2d 485 (1993), and State v. Song, 176 Ariz. 215, 860 P.2d 482
(1993), the State contended that Smith was precluded from raising
this argument on appeal.
¶7 The court of appeals held that “Smith waived his right
to appeal whether his foreign convictions constitute felonies
under Arizona law because he did not preserve the argument in the
trial court.” State v. Smith, 217 Ariz. 308, 311-12, ¶ 18, 173
P.3d 472, 475-76 (App. 2007). In reaching its conclusion, the
court found Song and Fagnant “controlling.” Id. at 311, ¶ 17,
173 P.3d at 475.
¶8 Smith petitioned for review, claiming that the court of
appeals’ ruling contravenes this Court’s decisions in State v.
Crawford, 214 Ariz. 129, 149 P.3d 753 (2007), and State v. Heath,
198 Ariz. 83, 7 P.3d 92 (2000). After we granted review, the
State conceded that Smith may argue for the first time on appeal
that his foreign convictions do not constitute felonies in
Arizona. The State maintains, however, that such review is
limited to fundamental error. It argues that Smith cannot show
prejudice because he could have been sentenced as a first-time
dangerous offender for the armed robbery offense and given a
4
presumptive term of 10.5 years – 1.25 years more than he
received. A.R.S. § 13-604(B), (I).
¶9 We granted review because this is a recurring issue of
statewide importance.3 We have jurisdiction under Article 6,
Section 5(3) of the Arizona Constitution, A.R.S. § 12-120.24
(2003), and Arizona Rule of Criminal Procedure 31.19.
II
¶10 “[W]hether a foreign conviction constitutes a felony in
Arizona . . . raises an issue of law,” which we review de novo.
Heath, 198 Ariz. at 84, ¶ 4, 7 P.3d at 93. Before a court may
use “a foreign conviction for sentencing enhancement purposes
under § 13-604, the superior court must first conclude that the
foreign conviction includes ‘every element that would be required
to prove an enumerated Arizona offense.’” Crawford, 214 Ariz. at
131, ¶ 7, 149 P.3d at 755 (quoting State v. Ault, 157 Ariz. 516,
521, 759 P.2d 1320, 1325 (1988)). Because the determination of
whether a foreign conviction would constitute a felony in Arizona
is a question of law, a defendant’s admission that he has a prior
felony conviction does not relieve the state of its burden to
prove that the foreign conviction established “every element that
would be required to prove that such offense would be a felony in
3
See, e.g., State v. Rasul, 216 Ariz. 491, 496, ¶ 20, 167
P.3d 1286, 1291 (App. 2007) (reviewing the improper use of prior
felony convictions to enhance a sentence for fundamental error
on appeal despite the lack of an objection).
5
Arizona.” Heath, 198 Ariz. at 84, ¶ 4, 7 P.3d at 93. Instead,
the trial court must make “this determination by comparing the
statutory elements of the foreign crime with those in the
relevant Arizona statute.” Crawford, 214 Ariz. at 131, ¶ 7, 149
P.3d at 755.
¶11 The court of appeals acknowledged that the
applicability of a foreign conviction is a legal issue. Smith,
217 Ariz. at 311, ¶ 16, 173 P.3d at 475. Nevertheless, because
neither Song nor Fagnant had been overruled, the court relied on
these decisions to conclude that Smith waived the argument that
his sentence was improperly enhanced by his prior felonies. Id.
at ¶ 17.
III
¶12 The narrow question that this case presents is whether
Song and Fagnant still apply to preclude appellate review of the
use of prior foreign felony convictions for enhancement purposes
if defense counsel fails to object.
¶13 In Song, the defendant was convicted of manslaughter.
176 Ariz. at 215, 860 P.2d at 482. Song was on parole for a
felony conviction in another state when he committed the crime in
Arizona. Id. At trial, Song did not object to the use of the
prior conviction to enhance his sentence under A.R.S. § 13-
604.02(A), a statute that permits enhancement for dangerous
felonies committed while a defendant is on release. Song, 176
6
Ariz. at 215, 860 P.2d at 482. On appeal he challenged the use
of the prior conviction for the first time. Id.
¶14 This Court held that legal issues, such as whether a
foreign felony would have constituted a felony if committed in
Arizona, are precluded unless raised in the trial court. Id. at
218, 860 P.2d at 485 (noting that if “a defendant . . . fails to
object to the use of a prior felony conviction,” he “cannot raise
the issue on appeal”). The “nature of the conviction as it
relates to Arizona law is an issue of law, which like other legal
issues is precluded unless raised.” Id.
¶15 In Fagnant, a companion case to Song, this Court
reiterated that whether a foreign conviction constitutes a felony
under Arizona law is a legal issue that must be preserved in the
trial court. 176 Ariz. at 219, 860 P.2d at 486. The trial court
had used the defendant’s prior Washington felony conviction to
aggravate his Arizona sentences under what is now A.R.S. § 13-
702(C)(11).4 Fagnant, 176 Ariz. at 219, 860 P.2d at 486.
Fagnant did not object at trial, but argued on appeal that the
Washington conviction could not be used as an aggravating
circumstance “without a showing that it would be a felony in
Arizona.” Id. The Court held that if the defendant fails to
4
See 1993 Ariz. Sess. Laws, ch. 255, § 11 (1st Reg. Sess.)
(moving this aggravating factor from subsection (D)(11) to
(C)(11)).
7
raise this “purely legal issue” at trial, “he or she may not
raise [it] for the first time on appeal.” Id. The Court went on
to note that “[t]his rule is consistent with the doctrine that an
appellate court will not address an issue for the first time on
appeal unless the error is fundamental.” Id. It then concluded
that this “kind of error” was not fundamental. Id. at 220, 860
P.2d at 487.5
IV
¶16 Because Arizona’s appellate courts have changed their
approach to the type of sentencing errors addressed in Song and
Fagnant, we reject the continuing applicability of those cases.
5
The Court further observed that its conclusion was even
more compelling in the aggravation context.
Aggravating factors, unlike enhancement factors, do
not increase the range of sentence to which a
defendant is subject; they are used by the judge in
determining the propriety of a sentence within the
allotted range. They need not be proven by the state,
and the court is not limited to formal “evidence” but
may consider any reliable information made available
to it.
Fagnant, 176 Ariz. at 220, 860 P.2d at 487 (emphasis added).
The law concerning sentencing has of course changed
substantially since Song and Fagnant. It is now clear that
aggravating factors do increase the range of sentence to which a
defendant is exposed and that the state has the burden of
proving any fact necessary to impose a sentence in excess of
that authorized by the jury verdict or guilty plea. See, e.g.,
Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v. New
Jersey, 530 U.S. 466 (2000).
8
¶17 To begin, we note that Heath did not cite or overrule
either Song or Fagnant. But Heath’s holding evidenced a shift in
our approach to such claims of error. 198 Ariz. at 84, ¶ 4, 7
P.3d at 93. In the apparent absence of an objection in the trial
court, Heath held that “whether a foreign conviction constitutes
a felony in Arizona . . . raises an issue of law.” Id.
¶18 Moreover, since Song and Fagnant, this Court has found
that legal error in other sentencing contexts constitutes
fundamental error, reviewable as such on appeal despite the lack
of an objection at trial. For example, in State v. Kelly, we
agreed with a court of appeals’ decision holding that improper
use of two prior convictions committed on the same occasion6
constituted “fundamental error which can be raised for the first
time on appeal.” 190 Ariz. 532, 534, ¶ 5, 950 P.2d 1153, 1155
(1997) (citing State v. Graves, 188 Ariz. 24, 27, 932 P.2d 289,
292 (App. 1996)). More recently, we stated that despite defense
counsel’s agreement that consecutive sentences were required,
“[w]hen a trial court labors under a misunderstanding of the
sentencing law, thinking that a consecutive sentence is mandatory
rather than discretionary, that portion of the sentence should be
set aside and the matter remanded for sentencing.” State v.
6
Section 13-604(M) provides that “[c]onvictions for two or
more offenses committed on the same occasion shall be counted as
only one conviction for purposes of this section.”
9
Stroud, 209 Ariz. 410, 414, ¶¶ 20-21, 103 P.3d 912, 916 (2005);
cf. State v. Morales, 215 Ariz. 59, 61-62, ¶¶ 9-10, 157 P.3d 479,
481-82 (2007) (holding that even when an attorney stipulates “to
the existence of a prior conviction for purposes of sentence
enhancement,” the judge’s failure to give the colloquy required
under Arizona Rule of Criminal Procedure 17.6 “is fundamental
error because a defendant’s waiver of constitutional rights must
be voluntary and intelligent”).
¶19 Likewise, the court of appeals has on numerous
occasions reviewed legal errors in sentencing for fundamental
error.7 See, e.g., State v. Avila, 217 Ariz. 97, 99, ¶ 8, 170
P.3d 706, 708 (App. 2007) (reviewing sentencing argument not
raised in the trial court for fundamental error); State v.
McCurdy, 216 Ariz. 567, 574 n.7, ¶ 18, 169 P.3d 931, 938 n.7
(App. 2007) (noting that an admission does not constitute proof
that the foreign conviction would have been a felony under
Arizona law and that substantial prejudice inheres in an
illegally enhanced sentence); Rasul, 216 Ariz. at 496-97, ¶¶ 20,
27, 167 P.3d at 1291-92 (reviewing unobjected to sentencing error
for fundamental error)); State v. Joyner, 215 Ariz. 134, 136 n.1,
¶ 5, 137, 158 P.3d 263, 265 n.1, 266 (App. 2007) (same); State v.
7
The court below also recognized that decisions from that
court reviewed sentences “imposed under an incorrect statute”
for fundamental error. Smith, 217 Ariz. at 311 n.2, ¶ 16, 173
P.3d at 475 n.2 (citing cases).
10
Cox, 201 Ariz. 464, 467-68, ¶¶ 11-13, 37 P.3d 437, 440-41 (App.
2002) (same).
¶20 These cases demonstrate that, with the exception of
Song and Fagnant, Arizona appellate courts have consistently
reviewed legal sentencing errors for fundamental error even when
there has not been an objection below. Therefore, to the extent
Song and Fagnant preclude a defendant’s claim that a trial court
enhanced his sentence with a legally insufficient foreign prior
felony conviction, we overrule them. Accordingly, the court of
appeals is not prohibited from addressing Smith’s claim for
fundamental error.
V
¶21 For Smith to prevail on his claim, however, he must
satisfy the standards of fundamental review set forth in State v.
Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-21, 115 P.3d 601, 607-08
(2005). We held there that a defendant who does not object at
trial forfeits the right to obtain appellate relief, except when
the error goes to the foundation of the case, the error takes
from the defendant a right essential to his defense, and the
error is of such magnitude that the defendant could not possibly
have received a fair trial. Id. at 567, ¶ 19, 115 P.3d at 607.
We also explained that “to prevail under this standard of
review,” a defendant must establish that (1) error exists, (2)
11
the error is fundamental, and (3) the error caused him prejudice.
Id. at ¶ 20.
¶22 We conclude that the improper use of a prior foreign
conviction to enhance a prison sentence goes to the foundation of
a defendant’s right to receive a valid and legal sentence and is
“of such magnitude that the defendant could not have possibly
received” a fair sentencing. Id. at ¶ 19; see McCurdy, 216 Ariz.
at 574 n.7, ¶ 18, 169 P.3d at 938 n.7 (noting that an illegally
imposed enhanced sentence is substantially prejudicial); see also
United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006)
(“The imposition of an illegal sentence constitutes plain
error.”). Thus, a defendant’s claim that a trial court did not
properly examine whether his foreign conviction included “every
element that would be required to prove an enumerated Arizona
offense,” Crawford, 214 Ariz. at 131, ¶ 7, 149 P.3d at 755
(citation and internal quotation marks omitted), may be reviewed
for fundamental error despite the lack of an objection.8
8
We decline to decide whether Smith has established either
that error occurred or, if so, whether it resulted in prejudice,
as these issues can be addressed by the court of appeals on
remand. We also decline to address the State’s argument, raised
initially in its response to the petition for review, that Smith
invited the error through his attorney’s concessions. See,
e.g., State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631,
632-33 (2001).
12
VI
¶23 Based on the foregoing, we vacate the court of appeals’
opinion and remand to that court for further proceedings
consistent with this opinion.
_______________________________________
Michael D. Ryan, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
13