                                  IN THE

     SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA,
                                Appellee,

                                      v.

                        DONALD WILLIAM GULLEY,
                              Appellant.

                            No. CR-16-0456-PR
                            Filed May 12, 2017

            Appeal from the Superior Court in Yavapai County
                  The Honorable Tina R. Ainley, Judge
                           No. CR 201400855
               VACATED IN PART AND REMANDED

              Opinion of the Court of Appeals, Division One
                240 Ariz. 580, 382 P.3d 795 (App. 2016)
                          VACATED IN PART

COUNSEL:

Sheila Sullivan Polk, Yavapai County Attorney, Dennis M. McGrane
(argued), Chief Deputy County Attorney, Prescott, Attorneys for State of
Arizona

Lourdes Todd, Yavapai County Public Defender, Grace M. Guisewite
(argued), Michelle L. DeWaelsche (argued), Deputy Public Defenders,
Prescott, Attorneys for Donald William Gulley

PER CURIAM:

¶1            We granted review in this case to consider whether A.R.S.

§ 13–707(B) requires a repeat class 1 misdemeanor conviction to be both

classified and sentenced as a class 6 felony. We have jurisdiction under

article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.
                             STATE V. GULLEY
                            Opinion of the Court

¶2            Here, Gulley pleaded guilty in 2012 to one count of disorderly

conduct in violation of A.R.S. § 13–2904(A), a class 1 misdemeanor. See

A.R.S. § 13–2904(B). Then, in 2013, a jury convicted Gulley of two counts of

disorderly conduct, also class 1 misdemeanors in violation of § 13–

2904(A)(1). At sentencing, the trial court classified each 2013 count as a

“class 6 felony” pursuant to § 13–707(B). Under § 13–707(B), a person “shall

be sentenced for the next higher class of offense than that for which the

person currently is convicted” if the person “stands convicted of any

misdemeanor” and “has been convicted of one or more of the same

misdemeanors . . . within two years next preceding the date of the present

offense[.]” Because Gulley was convicted of the same class 1 misdemeanor

in both 2012 and 2013, the trial court classified the 2013 convictions as class

6 felonies and imposed two concurrent and enhanced 3.75-year prison

terms.

¶3            On appeal, Gulley argues that the trial court committed

fundamental error when it designated his 2013 disorderly conduct

convictions as class 6 felonies and sentenced him as a category three

repetitive felony offender. According to Gulley, § 13–707(B) only pertains

to the sentence imposed because the phrase “stands convicted of [a]

misdemeanor” requires that the current conviction be classified as a


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                            STATE V. GULLEY
                           Opinion of the Court

misdemeanor in order for § 13–707(B) to apply. In response, the State

counters that if a felony sentence is imposed pursuant to § 13–707(B), then

a defendant’s current class 1 misdemeanor conviction must be (re)classified

as a felony conviction because an offense is classified under Arizona law

according to the type of sentence imposed.

¶4           After considering the briefs and oral arguments, the Court

vacates paragraphs 23–29 of the court of appeals’ opinion. See State v.

Gulley, 240 Ariz. 580, 586–87 ¶¶ 23–29, 382 P.3d 795, 801–02 (App. 2016).

Instead, we approve of the interpretation of § 13–707(B) as set forth in

paragraphs 4–10 of State v. Ceasar, 241 Ariz. 66, 383 P.3d 1140 (App. 2016).

As Ceasar explains, Section 13–707(B) only concerns the imposition of

sentencing enhancements for repeat misdemeanor convictions. The phrase

“stands convicted of any misdemeanor” dictates that the current conviction

must be classified as a class 1 misdemeanor in order for the trial court to

impose a class 6 felony sentence.        Thus, the trial court committed

fundamental error when it (re)classified Gulley’s 2013 disorderly conduct

convictions as class 6 felonies and sentenced him as a category three

repetitive felony offender. See State v. Smith, 219 Ariz. 132, 136 ¶¶ 21–22,

194 P.3d 399, 403 (2008) (finding fundamental error when trial court

improperly used a conviction to enhance a prison sentence).


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                              STATE V. GULLEY
                             Opinion of the Court

¶5            Accordingly, as requested by the Attorney General and

Gulley before the court of appeals, we modify Gulley’s disorderly conduct

convictions and designate them as class 1 misdemeanors.         We vacate

Gulley’s sentence and remand to the trial court for resentencing within the

range for first-time class 6 felonies.




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