                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 CHARLES WILSON COFFELT, Appellant.

                             No. 1 CA-CR 16-0272
                               FILED 3-16-2017


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201500452
                The Honorable Steven F. Conn, Judge

           CONVICTIONS AFFIRMED; SENTENCE VACATED
                        AND REMANDED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Elizabeth B.N. Garcia
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. COFFELT
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            Charles Wilson Coffelt was convicted of possession of
dangerous drugs for sale (methamphetamine), a Class 2 felony; possession
of drug paraphernalia, a Class 6 felony; and possession of marijuana, a
Class 6 felony. On appeal, Coffelt challenges the sentence the superior court
imposed on the methamphetamine conviction and argues the court
committed fundamental error by failing to sua sponte recuse for cause. For
the following reasons, we affirm the convictions but vacate and remand the
sentence.

             FACTS AND PROCEDURAL BACKGROUND

¶2            At sentencing, the State asked the court to sentence Coffelt
under the standard range applicable to a Class 2 felony with one historical
prior felony conviction pursuant to Arizona Revised Statutes ("A.R.S.")
section 13-703(I) (2017), rather than under the methamphetamine
sentencing statute, A.R.S. § 13-3407(E) (2017).1 As proof of the historical
prior felony conviction, the State offered a certified copy of a judgment and
sentencing order reflecting that Coffelt was convicted in 1991 of
manslaughter, a Class 3 "non-dangerous felony," and unlawful
imprisonment, a Class 6 non-dangerous felony, both committed on
December 4, 1990. The court also admitted a certified copy of the 1990
indictment and records from the Arizona Department of Corrections
containing Coffelt's history of imprisonment, fingerprints and photograph.

¶3              Although the exhibits showed the manslaughter conviction to
be a non-dangerous felony, based on its own recollection of the evidence at
Coffelt's trial, 25 years earlier, the court ruled the prior conviction was a
dangerous offense and sentenced Coffelt as a category-two offender
pursuant to A.R.S. § 13-703(I) to a slightly mitigated nine-year term of




1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                     2
                           STATE v. COFFELT
                           Decision of the Court

imprisonment for possession of methamphetamine, to run concurrently
with presumptive 1.5 year terms on the two other convictions.

¶4            We have jurisdiction of Coffelt's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2017), 13-4031 (2017) and -4033(A)(1) (2017).

                               DISCUSSION

A.     Reclassification of the Manslaughter Conviction as a Dangerous
       Offense.

¶5            The superior court sentenced Coffelt pursuant to A.R.S. § 13-
703(B) as a category-two repetitive offender based on its conclusion that
Coffelt had one historical prior felony conviction. As noted above, the only
prior conviction the State offered in evidence was for manslaughter,
committed 25 years earlier. That offense could constitute an historical prior
felony only if it involved a dangerous offense. See A.R.S. § 13-105(22)(a)(ii)
(2017).

¶6             As noted, the minute entry in evidence at Coffelt's sentencing
characterized the manslaughter conviction as non-dangerous.
Nevertheless, the superior court judge in this case, who happened to have
presided over Coffelt's 1991 trial, stated at the sentencing that he recalled
the trial and the facts underlying the manslaughter conviction. As the judge
described it, Coffelt had been charged with first-degree murder based on
evidence that he held "a gun to someone's head and [shot] him in the head."
The jury in that case convicted Coffelt of manslaughter as a lesser-included
offense, but was not asked to decide whether the offense was "dangerous."
According to the judge, given the facts, the resulting non-dangerous
characterization of the manslaughter conviction was "ridiculous on its face."
Based on his recollection that the offense involved the discharge, use or
threatening exhibition of a firearm, the judge ruled that the 1991
manslaughter was a dangerous offense under A.R.S. § 13-105(13), which
constituted an historical prior felony conviction for sentencing purposes
pursuant to A.R.S. 13-105(22)(a)(ii).

¶7            "A trial court's determination that a prior conviction
constitutes an historical prior felony conviction for purposes of sentence
enhancement involves a mixed question of law and fact" that this court
reviews de novo. State v. Derello, 199 Ariz. 435, 437, ¶ 8 (App. 2001).

¶8             "Any fact that, by law, increases the penalty for a crime is an
'element' that must be submitted to the jury and found beyond a reasonable


                                      3
                            STATE v. COFFELT
                            Decision of the Court

doubt." Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Under that
principle, whether an offense is "dangerous" must be submitted to the jury
"unless an element of the offense charged contains an allegation and
requires proof of the dangerous nature of the felony." State v. Joyner, 215
Ariz. 134, 138, ¶ 9 (App. 2007) (quoting State v. Parker, 128 Ariz. 97, 99
(1981)); see also State v. Brydges, 134 Ariz. 59, 62 (App. 1982) (absent an
admission from the defendant under Arizona Rule of Criminal Procedure
17.6 regarding the dangerous character of the offense, a separate finding
from the jury is required). In deciding whether dangerousness is inherent
in an offense, we "look to statutes defining [the] offense, the indictment, and
'whether "an element of the offense charged contains an allegation and
requires proof" of dangerousness.'" State v. Ortiz, 238 Ariz. 329, 343, ¶ 64
(App. 2015) (quoting State v. Larin, 233 Ariz. 202, 213, ¶ 38 (App. 2013)).

¶9           In 1990, when Coffelt committed the offense, manslaughter
was defined as:

       1. Recklessly causing the death of another person; or 2.
       Committing second degree murder . . . upon a sudden quarrel
       or heat of passion resulting from adequate provocation by the
       victim; or 3. Intentionally aiding another to commit suicide;
       or 4. Committing second degree murder . . . while being
       coerced to do so by the use or threatened immediate use of
       unlawful deadly physical force upon such person or a third
       person which a reasonable person in his situation would have
       been unable to resist; or 5. Knowingly or recklessly causing
       the death of an unborn child at any stage of its development
       by any physical injury to the mother of such child which
       would be murder if the death of the mother had occurred.

A.R.S. § 13-1103(A) (1990) (emphasis added). At the same time, a
dangerous felony was defined as "a felony involving the use or exhibition
of a deadly weapon or dangerous instrument or the intentional or knowing
infliction of serious physical injury upon another." A.R.S. § 13-604(K) (1990)
(repealed 2008). The two statutes plainly were not congruent; that is, it was
possible under the statutes to commit manslaughter without committing
acts that would necessarily fall within the definition of a dangerous felony.2
The indictment charging Coffelt in the 1990 offenses was in evidence at the

2     The analysis is the same under the 1991 unlawful imprisonment
conviction; that crime was defined as "knowingly restraining another
person." A.R.S. § 13-1303(A) (1990).



                                      4
                            STATE v. COFFELT
                            Decision of the Court

current sentencing, but it alleged no facts that were inherently dangerous,
as the law defined that term.

¶10            The State does not dispute Coffelt's contention on appeal that
the superior court erred by recharacterizing the 1991 manslaughter
conviction as a dangerous offense based on the court's recollection of the
facts of the prior proceeding and sentencing him as a category-two offender
in the current matter. At the time of the prior convictions, neither
manslaughter nor unlawful imprisonment required proof of an element
that would mandate a finding of dangerousness. Accordingly, in the
absence of a jury finding, the superior court erred by recharacterizing the
manslaughter offense as a dangerous felony based on its recollection of the
prior trial.

¶11          In the absence of an historical prior felony conviction, the
standard sentencing statute applicable to the methamphetamine possession
conviction was not A.R.S. § 13-703(B) but § 13-703(A):

       If a person is convicted of multiple felony offenses that were
       not committed on the same occasion but that either are
       consolidated for trial purposes or are not historical prior felony
       convictions, the person shall be sentenced as a first time felony
       offender pursuant to § 13-702 for the first offense, [and] as a
       category one repetitive offender for the second offense.

A.R.S. § 13-703(A) (emphasis added). The presumptive sentence for a
category-one repetitive offender convicted of a Class 2 felony is five years,
with a minimum of four years and maximum of 12.5 years. A.R.S. § 13-
703(H).3

B.     Recusal.

¶12          Coffelt also argues the superior court judge should have
recused himself sua sponte because his impartiality reasonably could be
questioned, given that he presided over Coffelt's 1991 trial. Coffelt did not
move for a change of judge for cause under Arizona Rule of Criminal
Procedure 10.1. Accordingly, in the absence of structural error, we review

3       In a footnote in the answering brief, the State asserts that on remand,
the superior court could resentence Coffelt under any relevant statute,
including the special methamphetamine statute, A.R.S. § 13-3407(E), even
though the State chose not to argue in favor of that sentencing statute
during the original sentencing. Whether the State is bound by the position
it took in the original sentencing is not an issue before us.


                                       5
                             STATE v. COFFELT
                             Decision of the Court

the decision of the superior court judge not to recuse himself sua sponte for
fundamental, prejudicial error. State v. Granados, 235 Ariz. 321, 326, ¶ 13
(App. 2014) ("If a defendant fails to object on the basis of a trial judge's bias
below by filing a motion and affidavit pursuant to Rule 10.1, he forfeits
review for all but fundamental, prejudicial error."); see also State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail under this standard of
review, a defendant must establish both that fundamental error occurred
and that the error caused him prejudice. Henderson, 201 Ariz. at 567, ¶ 20.

¶13           Fundamental error is error that "goes to the foundation of [a
defendant's] case, takes away a right that is essential to his defense, and is
of such magnitude that he could not have received a fair trial." Id. at 568, ¶
24. Judges are presumed to be free of bias and prejudice, and a defendant
attempting to rebut that presumption must prove by a preponderance of
the evidence that the judge was biased or prejudiced. State v. Ramsey, 211
Ariz. 529, 541, ¶ 38 (App. 2005); State v. Hurley, 197 Ariz. 400, 404-05, ¶ 24
(App. 2000).

¶14            Coffelt's argument that the judge was biased is based on three
grounds: (1) the judge's erroneous ruling that the 1991 conviction was a
dangerous offense and therefore constituted an historical prior felony
conviction, (2) the judge's "lengthy statements" during sentencing and (3)
the judge's purported rejection of all mitigating factors. Regarding the first
ground, adverse judicial rulings "almost never constitute a valid basis for a
bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994); see
also Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 568, ¶ 22
(App. 2013) ("[A] judge's legal conclusions, if erroneous, can be corrected in
an appellate proceeding; they do not, standing alone, indicate bias.").
Moreover, the full trial record reveals no bias by the judge against Coffelt;
the judge granted several continuances Coffelt sought, waited to begin the
second day of trial because Coffelt was late and sustained his objection to
the police officer's testimony regarding the cause of his search of Coffelt's
house. Accordingly, we are unpersuaded by Coffelt's argument that the
sentencing ruling shows by a preponderance of the evidence that the judge
was biased and prejudiced.

¶15           We likewise are unpersuaded that the superior court judge's
statements about the 1991 trial demonstrated bias. Indeed, the record also
contains a statement that indicates a lack of bias: "What's sad about this case
is, these two defendants [Coffelt and his co-defendant] were the most
cooperative meth dealers in history." In any event, the fact that a judge may
have strong feelings on the merits of a cause is not enough to prove bias or



                                        6
                           STATE v. COFFELT
                           Decision of the Court

prejudice against the defendant. State v. Menard, 135 Ariz. 385, 387 (App.
1982).

¶16            Nor do we see in the record any evidence that the superior
court judge did not weigh any mitigating factor during sentencing. The
mitigation evidence was Coffelt's lesser involvement in the drug sales than
his co-defendant. To the contrary, the judge sentenced Coffelt to a slightly
mitigated term of imprisonment of nine years based on a presumptive
sentence of nine and a quarter years. He also stated that the "mitigating
factor in this case control[ed]."

¶17           The superior court judge did not commit error, fundamental
or otherwise, when he did not sua sponte recuse himself. Accordingly, we
need not address whether the alleged error was fundamental and
prejudicial. See State v. Alvarez, 213 Ariz. 467, 473, ¶ 20 (App. 2006).

                              CONCLUSION

¶18        For the foregoing reasons, we affirm the convictions but
vacate the sentence imposed on the conviction of possession of
methamphetamine and remand for re-sentencing.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                        7
