State v. Crawford

                      SUPREME COURT OF ARIZONA
                               En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-06-0205-PR
                        Appellee, )
                                  )   Court of Appeals
                 v.               )   Division One
                                  )   No. 1 CA-CR 04-0999
JOHN DAVID CRAWFORD,              )
                                  )   Maricopa County
                       Appellant. )   Superior Court
                                  )   No. CR2004-011318-001 DT
                                  )
                                  )
                                  )   O P I N I O N
__________________________________)


         Appeal from the Superior Court in Maricopa County
               The Honorable Thomas W. O'Toole, Judge

                        VACATED; REMANDED
 _______________________________________________________________

     Memorandum Decision of the Court of Appeals, Division One
                        Filed Feb. 16, 2006

                             VACATED
________________________________________________________________

John David Crawford                                          Buckeye
In Propria Persona

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                  Phoenix
     By   Randall M. Howe, Chief Counsel,
          Criminal Appeals Section
          Joseph T. Maziarz, Assistant Attorney General
Attorneys for the State of Arizona
________________________________________________________________

H U R W I T Z, Justice

¶1         Arizona Revised Statutes (“A.R.S.”) § 13-604 (Supp.

2004) subjects a criminal defendant who has a “prior historical
felony conviction” to enhanced sentences.                           See A.R.S. § 13-

604(W)(2) (defining “prior historical felony conviction”).                                If

the     prior    conviction      occurred         “in     any   court    outside          the

jurisdiction of this state,” it is treated as a prior historical

felony      conviction    only    if    it    involves        “an   offense       which    if

committed within this state would be punishable as a felony.”

A.R.S. § 13-604(N).            The issue in this case is how a court

determines whether a foreign conviction involves an offense that

would be punishable as a felony under state law if committed

here.

                                             I.

¶2            John David Crawford was convicted after a jury trial

of one count of burglary in the first degree, a class 2 felony

under A.R.S. § 13-1508 (2001), and two counts of aggravated

assault, class 3 felonies under A.R.S. § 13-1204 (Supp. 2004).

The State sought enhanced sentences under A.R.S. § 13-604(D),

alleging        that   Crawford        had       two    historical      prior       felony

convictions.

¶3            Crawford admitted the prior convictions, but claimed

that one did not qualify as a historical prior felony under

A.R.S. § 13-604(N).              That conviction occurred in the United

States District Court for the District of Arizona in 2003, after

Crawford pled guilty to one count of an indictment alleging that

he    had   violated     18   United    States         Code   (“U.S.C.”)      §    1708   by


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possessing a credit card stolen from the United States mail.

Crawford contended that the federal conviction did not meet the

statutory    definition     of   a   prior     historical    felony   conviction

because 18 U.S.C. § 1708 can be violated by conduct that would

not constitute a felony under Arizona law.

¶4          The State did not contest that the federal statute can

be violated by conduct that would not constitute a felony under

Arizona     law.      The   State     argued,     however,    that    Crawford’s

actions,    as     described   in    the   relevant   count    of    the   federal

indictment, would have violated either A.R.S. § 13-1802(a)(5)

(2001) (theft) or A.R.S. § 13-2102(a)(1) (2001) (credit card

theft), both felonies.           After reviewing the allegations in the

federal indictment, the superior court agreed.                      Finding that

Crawford had two historical prior felony convictions, the court

imposed the presumptive sentences in A.R.S. § 13-604(D). 1

¶5          The court of appeals affirmed.             State v. Crawford, 1

CA-CR 04-0999 (Ariz. App. Feb. 16, 2006) (mem. decision).                       We


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     Because Crawford had committed the crimes for which he was
convicted while on probation, the superior court was required
under A.R.S. § 13-604.02 (2001) to impose no less than the
presumptive sentences specified in A.R.S. § 13-604(D) -- 15.75
years for the burglary conviction and 11.25 years for each of
the aggravated assault convictions.

     If the superior court had found only one prior historical
felony conviction, sentencing would have been imposed pursuant
to § 13-604(B). The presumptive sentences would have been 9.25
years for the burglary and 6.5 years for the aggravated
assaults. Id.

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granted       Crawford’s     petition         for     review   because      defining    the

method by which a court determines whether convictions in other

jurisdictions       should     be          treated    as   historical       prior    felony

convictions       involves         a       recurring       issue   in       our     criminal

jurisprudence.          We have jurisdiction under Article 6, Section

5(3) of the Arizona Constitution and Arizona Rule of Criminal

Procedure 31.19.

                                               II.

¶6             “[W]hether a foreign conviction constitutes a felony

in Arizona . . . raises an issue of law,” which we review de

novo.      State v. Heath, 198 Ariz. 83, 84 ¶ 4, 7 P.3d 92, 93

(2000).       The defendant’s admission of the prior conviction is of

no consequence in that legal analysis.                         “Although an admission

by a defendant at trial dispenses with the necessity of proof of

prior convictions, such an admission does not constitute proof

that    the    foreign      conviction         would    have    been    a   felony    under

Arizona law.”        Id.

                                               A.

¶7             Before      using       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.”        State v. Ault, 157 Ariz. 516, 521, 759 P.2d 1320,

1325 (1988).         The court makes this determination by comparing


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the statutory elements of the foreign crime with those in the

relevant Arizona statute.             Id. (comparing California and Arizona

rape statutes to determine if prior California rape convictions

constituted “serious” crimes under previous version of A.R.S. §

13-604(S)); State v. Benenati, 203 Ariz. 235, 242 ¶¶ 24-26, 52

P.3d 804, 811 (App. 2002) (comparing Florida and Arizona robbery

statutes   to    determine       if    prior   Florida    robbery      convictions

“constituted a prior felony conviction for sentencing purposes”

under A.R.S. § 13-604(N)).              “[T]here must be strict conformity

between the elements of the [foreign] felony and the elements of

some   Arizona   felony     before      [A.R.S.   §    13-604(N)]    can    apply.”

State v. Clough, 171 Ariz. 217, 219, 829 P.2d 1263, 1265-66

(App. 1992) (comparing Montana bad check statute with various

Arizona theft and fraud statutes).

¶8          The cases interpreting § 13-604 are consistent with

our case law involving the use of foreign convictions in capital

sentencing.         The    capital     cases   make     plain   that    only    the

“statutory definition of the prior crime, and not its specific

factual    basis”    can    be    considered      in   determining     whether    a

foreign conviction is treated as a “serious offense” and thus an

aggravating circumstance under A.R.S. § 13-703(F)(2).                      State v.

Henry, 176 Ariz. 569, 587, 863 P.2d 861, 879 (1993) (reviewing

California involuntary manslaughter statute to determine if a

statutory element of that crime involved violence in order to


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determine whether the California conviction was an aggravating

circumstance under previous version of A.R.S. § 13-703(F)(2));

accord State v. Roque, 213 Ariz. 193, 216-17 ¶¶ 82-88, 141 P.3d

368, 391-92 (2006) (refusing to “look beyond the language of the

[foreign] statutes” to the complaint describing the defendant’s

conduct     in     determining          whether          prior     California        robbery

conviction constituted a “serious offense” under A.R.S. § 13-

703(F)(2)); State v. Schaaf, 169 Ariz. 323, 334, 819 P.2d 909,

920   (1991)      (reviewing          Nevada       attempted       murder     statute       to

determine    if    that       crime    involved       violence        and   holding       that

sentencing       courts       “may    consider      only     the      statute      that    the

defendant    [was]      charged       with     violating;        it   may    not    consider

other evidence”).

¶9           Under      our    precedents,         the    sentencing        court    focuses

solely on the elements of the foreign statute under which the

defendant was convicted, a purely legal issue, and is freed from

the   burden       of     making       factual           determinations         about     the

defendant’s       underlying         conduct.        We     thus      conserve      judicial

resources by avoiding, “in effect, a second trial on defendant’s

prior conviction.”             State v. Gillies, 135 Ariz. 500, 511, 662

P.2d 1007, 1018 (1983) (involving previous version of § 13-

703(F)(2)); see also Schaaf, 169 Ariz. at 333, 819 P.2d at 919

(affirming the approach taken in Gillies).




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                                              B.

¶10            The    State    acknowledges            the   general        rule    that    prior

foreign convictions are to be analyzed for enhancement purposes

under § 13-604 only by comparing the elements of the foreign

statute to Arizona law, but nonetheless argues that State v.

Thompson, 186 Ariz. 529, 924 P.2d 1048 (App. 1996), supports the

result    below.         In    Thompson,      the       court    of    appeals       held       that

“charging       documents”        could       be       examined        to     “pinpoint          the

statutory basis of a prior conviction.”                         Id. at 532, 924 P.2d at

1051.     Such documents could be used for “establishing that the

defendant       was    convicted       under       a    particular          subsection      of    a

foreign       statute,    if    that    subsection           encompasses        only      conduct

that would constitute a felony in Arizona.”                           Id.

¶11            Thompson is of no avail to the State here.                           As we made

clear in Roque, Thompson allows use of a charging document “only

to narrow the foreign conviction to a particular subsection of

the statute that served as the basis of the foreign conviction”

and     not    to     establish        “the    factual          nature        of    the     prior

conviction.”          213 Ariz. at 217 ¶ 88, 141 P.3d at 392.                                    The

federal       statute    at     issue     here,        18    U.S.C.     §     1708,       has    no

subsections.          The courts below used the charging documents not

to    “pinpoint”      the     subsection       describing         the       crime   for     which

Crawford was convicted, but instead to establish the “factual

nature of the conviction.”


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                                   III.

¶12        The courts below erred in using the federal indictment

to determine whether Crawford’s 2003 federal conviction was a

prior   historical   felony    conviction    under    §    13-604(N).   We

accordingly   vacate   Crawford’s        sentence    and   the   memorandum

decision of the court of appeals and remand to the superior

court for further sentencing proceedings consistent with this

opinion.




                              _______________________________________
                              Andrew D. Hurwitz, Justice

CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
W. Scott Bales, Justice




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