                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                     v.

                    ELROY GUTIERREZ, Appellant.

                         No. 1 CA-CR 15-0342
                          FILED 9-1-2016


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201400675
                 The Honorable Tina R. Ainley, Judge

                              AFFIRMED


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant



                              OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Patricia A. Orozco and Judge Donn Kessler joined.
                          STATE v. GUTIERREZ
                           Opinion of the Court


J O H N S E N, Judge:

¶1            We address in this appeal two statutory interpretation issues:
Whether use or possession of multiple deadly weapons during the
commission of a drug felony constitutes just one offense under Arizona
Revised Statutes ("A.R.S.") section 13-3102(A)(8) (2016), and whether a
defendant convicted of transportation of methamphetamine for sale under
A.R.S. § 13-3407(A)(7) (2016) is eligible for early release.1 We also consider
whether the superior court judge who participated in a settlement
conference violated the defendant's due-process rights by imposing a
greater sentence after the defendant was convicted than she had promised
him during the settlement conference.

             FACTS AND PROCEDURAL BACKGROUND

¶2            A highway patrol officer parked in the median of Interstate
17 north of Cordes Junction one summer afternoon saw Elroy Gutierrez
drive by with his windows rolled down and noticed Gutierrez slowed
below the speed limit as he passed.2 The officer pulled out to follow
Gutierrez, and stopped him after he saw Gutierrez twice apply the brakes
for no apparent reason and the car's right tires twice swerve across the
white fog line. After Gutierrez and his passenger gave inconsistent
statements, the officer requested a drug canine unit. The dog alerted, and
a search of the car revealed two handguns, just under a half-pound of
heroin, more than four pounds of methamphetamine and a black zippered
case containing a small quantity of heroin and a used syringe. Interviewed
following his arrest, Gutierrez admitted he used heroin earlier in the day
and voluntarily provided a urine sample. A drug test revealed metabolites
of heroin, methamphetamine and marijuana.

¶3           Gutierrez was indicted on one count of transportation of a
dangerous drug for sale (methamphetamine), a Class 2 felony; one count of
transportation of a narcotic drug for sale, a Class 2 felony; two counts of
misconduct involving weapons, each a Class 4 felony; two counts of
possession of drug paraphernalia, each a Class 6 felony; and two counts of
aggravated driving under the influence, each a Class 4 felony. His

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

2       We view the evidence in the light most favorable to sustaining the
jury's verdicts. State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).


                                      2
                           STATE v. GUTIERREZ
                            Opinion of the Court

passenger also was indicted on the drug and weapons charges. After a joint
trial, the jury acquitted Gutierrez of one count of aggravated driving under
the influence and transportation of a narcotic drug for sale but found him
guilty of the other DUI charge, as well as transportation of a dangerous
drug for sale, possession of a narcotic drug, possession of drug
paraphernalia and misconduct involving weapons. The jury also found the
co-defendant guilty of all charges and found presence of an accomplice and
commission of the offense for pecuniary gain as aggravating factors. The
superior court sentenced Gutierrez to concurrent aggravated prison terms,
the longest of which was 14 years.

¶4            Gutierrez timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) (2016), 13-4031 (2016), and -4033(A)(1) (2016).

                               DISCUSSION

A.     Denial of Motion to Suppress.

¶5            Gutierrez contends the superior court erred by denying his
motion to suppress the drugs and guns found in the car because the officer
did not have reasonable suspicion for the traffic stop. At the suppression
hearing, the officer testified he stopped the car because of concern the driver
was impaired or sleepy. Based on the officer's testimony, given the officer's
concern that the driver was impaired, the superior court found the officer
had reasonable suspicion of a traffic violation.

¶6            We will not reverse the denial of a motion to suppress absent
a clear abuse of discretion. State v. Guillory, 199 Ariz. 462, 465, ¶ 9 (App.
2001). "In reviewing the denial of a motion to suppress evidence, we
consider only the evidence presented at the suppression hearing, and view
that evidence in the light most favorable to upholding the trial court's
ruling." State v. Evans, 235 Ariz. 314, 315, ¶ 2 (App. 2014) (quoting State v.
Olm, 223 Ariz. 429, 430, ¶ 2 (App. 2010)). We defer to the superior court's
factual determinations, including its evaluation of the credibility of the
witnesses, but review its conclusions of law de novo. State v. Gonzalez-
Gutierrez, 187 Ariz. 116, 118 (1996).

¶7            The Fourth Amendment forbids "unreasonable searches and
seizures." U.S. Const. amend. IV. A law enforcement stop of a vehicle
constitutes a seizure under the Fourth Amendment and "must be justified
by some objective manifestation that the person stopped is, or is about to
be engaged in criminal activity." State v. Richcreek, 187 Ariz. 501, 503–04
(1997) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). "Although


                                      3
                            STATE v. GUTIERREZ
                             Opinion of the Court

an officer's reliance on a mere 'hunch' is insufficient to justify a stop, the
likelihood of criminal activity need not rise to the level required for
probable cause." United States v. Arvizu, 534 U.S. 266, 274 (2002) (citation
omitted). "In reviewing a claim that law enforcement officers lacked the
reasonable suspicion required for an investigatory stop, we apply a peculiar
sort of de novo review, slightly more circumscribed than usual, because we
defer to the inferences drawn by the [trial] court and the officers on the
scene, not just the [trial] court's factual findings." Evans, 235 Ariz. at 317, ¶
8 (alterations in original) (citation and internal quotation marks omitted);
see also State v. Teagle, 217 Ariz. 17, 24, ¶ 26 (App. 2007) ("In reviewing the
totality of the circumstances, we accord deference to a trained law
enforcement officer's ability to distinguish between innocent and
suspicious actions.").

¶8             Here, the superior court did not abuse its discretion; the
unnecessary braking and the weaving out of the traffic lane constituted a
sufficient objective basis on which the officer could conclude the driver
might be impaired. See United States v. Brignoni-Ponce, 422 US. 973, 885
(1975) (erratic driving can support reasonable suspicion for stop). Gutierrez
argues the officer's reason for stopping his car was a pretext, but as long as
a stop is not a product of prohibited racial profiling (Gutierrez does not
argue he was illegally profiled), the stop does not violate the Fourth
Amendment simply because an officer's "ulterior motives" may include
objectives other than traffic enforcement. Whren v. United States, 517 U.S.
806, 811–13 (1996); see also Jones v. Sterling, 210 Ariz. 308, 311, ¶ 11 (2005)
("[E]vidence seized as a result of a traffic stop meeting 'normal' Fourth
Amendment standards is not rendered inadmissible because of the
subjective motivations of the police who made the stop.").

¶9              Gutierrez cites State v. Livingston, 206 Ariz. 145, 147-48, ¶¶ 6,
10 (App. 2003), in which an officer stopped a driver for violating A.R.S. §
28–729(1) (2016). In relevant part, that statute requires a motorist to "drive
a vehicle as nearly as practicable entirely within a single lane." After the
officer testified he stopped the car because the defendant's right tires once
crossed the shoulder line, the superior court suppressed the evidence seized
from the car. We affirmed, concluding the statute did not penalize "brief,
momentary, and minor deviations outside the marked lines." Id. at 148, ¶
10.

¶10           The officer in this case did not stop Gutierrez for violating
A.R.S. § 28–729(1), or for swerving over the fog line just once. The stop was
based on the totality of the driver's conduct, which, the superior court
found, demonstrated a reasonable likelihood that the driver might be


                                       4
                             STATE v. GUTIERREZ
                              Opinion of the Court

impaired. In light of the officer's testimony, the superior court did not
abuse its discretion in ruling the driver's conduct established reasonable
suspicion to support the stop.

B.     Denial of Motion to Sever.

¶11               Gutierrez contends the superior court erred in denying his
motion to sever his trial from that of his co-defendant. Defendants may be
joined for trial "when each defendant is charged with each offense included,
or when the several offenses are part of a common conspiracy, scheme or
plan or are otherwise so closely connected that it would be difficult to
separate proof of one from proof of the others." Ariz. R. Crim. P. 13.3(b).
Despite the possibility of confusion from joinder, joint trials are favored in
the interest of judicial economy. See State v. Murray, 184 Ariz. 9, 25 (1995).
The court, however, must grant a motion to sever trial of two or more
defendants when "necessary to promote a fair determination of the guilt or
innocence of any defendant of any offense[.]" Ariz. R. Crim. P. 13.4(a).
Thus, the court should grant severance when it detects features of the case
that might prejudice the defendant, such as "when . . . evidence admitted
against one defendant has a harmful rub-off effect on the other defendant .
. . or . . . co-defendants present antagonistic, mutually exclusive defenses or
a defense that is harmful to the co-defendant." Murray, 184 Ariz. at 25.

¶12            We review the denial of a motion to sever trial of a co-
defendant for an abuse of discretion. State v. Blackman, 201 Ariz. 527, 537, ¶
39 (App. 2002). To establish an abuse of discretion, a defendant must show
that at the time he moved to sever, he had proved his defense would be
prejudiced absent severance. Murray, 184 Ariz. at 25 (Defendant "must
demonstrate compelling prejudice against which the trial court was unable
to protect.") (quoting State v. Cruz, 137 Ariz. 541, 544 (1983)). A defendant
who files an unsuccessful pretrial motion to sever must renew the motion
"during trial at or before the close of the evidence[,]" and "[s]everance is
waived if a proper motion is not timely made and renewed." Ariz. R. Crim.
P. 13.4(c); State v. Laird, 186 Ariz. 203, 206 (1996); see also State v. Flythe, 219
Ariz. 117, 120, ¶ 9 (App. 2008) (Waiver provision of Rule 13.4(c) "prevents
a defendant from strategically refraining from renewing his motion,
allowing a joint trial to proceed, then, if he is dissatisfied with the final
outcome, arguing on appeal that severance was necessary."). Because
Gutierrez failed to renew his pretrial motion to sever, we review the issue
only for fundamental error.

¶13           Gutierrez argues the superior court should have severed the
trial because he and his co-defendant had inherently antagonistic defenses.


                                         5
                           STATE v. GUTIERREZ
                            Opinion of the Court

"[A] defendant seeking severance based on antagonistic defenses must
demonstrate that his or her defense is so antagonistic to the co-defendants
that the defenses are mutually exclusive." Cruz, 137 Ariz. at 545. But as our
supreme court has explained:

       It is natural that defendants accused of the same crime and
       tried together will attempt to escape conviction by pointing
       the finger at each other. Whenever this occurs the co-
       defendants are, to some extent, forced to defend against their
       co-defendant as well as the government. This situation
       results in the sort of compelling prejudice requiring reversal,
       however, only when the competing defenses are so
       antagonistic at their cores that both cannot be believed.

Id. at 544-45.

¶14           Gutierrez and his co-defendant each professed he did not
possess the drugs and guns, but that they belonged to the other. The jury,
however, did not need to decide that only one of the defendants possessed
the drugs and guns; it logically could have attributed any combination of
guilt or innocence between the two defendants. For that reason, Gutierrez
and his co-defendant's defenses were not mutually exclusive. See State v.
Turner, 141 Ariz. 470, 473 (1984) (defenses not mutually exclusive when jury
could have found core of both defenses true); see also Cruz, 137 Ariz. at 545.

¶15          Moreover, in reviewing the denial of a motion to sever, "we
are mindful that the trial court exercises considerable discretion in
determining whether, in light of the evidence then before the court, the
defendant has made the requisite showing of prejudice." State v. VanWinkle,
186 Ariz. 336, 339 (1996) (emphasis added). Because Gutierrez did not
renew his motion to sever, the court had no basis to conclude the defenses
were mutually exclusive.

¶16           By the same token, Gutierrez's argument also fails because he
cannot establish prejudice. See Murray, 184 Ariz. at 25. On appeal,
Gutierrez argues for the first time that the court's failure to sever the trial
compelled him to testify although he might not have done so had he been
tried separately. At trial, Gutierrez acknowledged that the pouch with the
personal supply of heroin was his, but testified he knew nothing about the
other drugs in the car and that the guns belonged to his co-defendant.

¶17           The superior court instructed the jurors to consider the
charges against each defendant separately and that "[e]ach defendant is
entitled to have the jury determine the verdict as to each of the crimes


                                      6
                            STATE v. GUTIERREZ
                             Opinion of the Court

charged based upon that defendant's own conduct and from the evidence
which applies to that defendant, as if that defendant were being tried
alone." So instructed, the jury acquitted Gutierrez of some of the charges
against him. On this record, no fundamental error occurred in the denial of
the motion to sever. See State v. Goudeau, 239 Ariz. 421, __, ¶ 67 (2016).

C.     Unit of Prosecution for Misconduct Involving Weapons.

¶18           Gutierrez was convicted of two counts of misconduct
involving weapons in violation of A.R.S. § 13-3102(A)(8) (2016) based on
the two handguns found in the vehicle. The statute provides, in pertinent
part, that a person commits misconduct involving weapons by knowingly
"[u]sing or possessing a deadly weapon during the commission of any
felony offense included in chapter 34 of [the criminal code]." A.R.S. § 13-
3102(A)(8).

¶19           Gutierrez argues the two convictions violate double jeopardy
principles because § 13-3102(A)(8) constitutes a single offense regardless of
the number of weapons used or possessed during the commission of a drug
crime. See Taylor v. Sherrill, 169 Ariz. 335, 338 (1991) (double jeopardy
prevents imposition of multiple punishments for same offense). We review
a double jeopardy claim de novo. State v. Moody, 208 Ariz. 424, 437, ¶ 18
(2004). Statutory interpretation is a question of law that likewise is subject
to de novo review. State v. Hasson, 217 Ariz. 559, 561, ¶ 8 (App. 2008).
Because Gutierrez did not raise this objection in the superior court, our
review is limited to fundamental error. State v. Henderson, 210 Ariz. 561,
567, ¶ 19 (2005). A double jeopardy violation, however, constitutes
fundamental error. State v. Millanes, 180 Ariz. 418, 421 (App. 1994).

¶20           The issue is the allowable unit of prosecution under § 13-
3102(A)(8), or, put differently, the "scope of conduct for which a discrete
charge can be brought" under the statute. See State v. Jurden, 239 Ariz. 526,
___ ¶ 11 (2016). We begin with the language of the statute, keeping in mind
that our objective "is to give effect to the legislature's intent." Id., ¶ 15. "If
the statutory language is unambiguous, we apply it as written without
further analysis." Id. Unless it is clear the legislature intended otherwise,
we will not "construe the words of a statute to mean something other than
what they plainly state." Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., Inc.,
177 Ariz. 526, 529 (1994).

¶21           Citing federal decisions interpreting 18 U.S.C. § 922, which
prohibits certain persons from importing, manufacturing, transporting or
receiving firearms in interstate or foreign commence, Gutierrez argues



                                        7
                           STATE v. GUTIERREZ
                            Opinion of the Court

A.R.S. § 13-3102(A)(8) establishes a single offense regardless of the number
of weapons a defendant possesses or uses in committing the predicate
crime. See United States v. Szalkiewicz, 944 F.2d 653 (9th Cir. 1991); United
States v. Valentine, 706 F.2d 282 (10th Cir. 1983). Gutierrez argues that courts
construing 18 U.S.C. § 922 have found that provision to be ambiguous as to
the unit of prosecution, and that A.R.S. § 13-3102(A)(8) is likewise
ambiguous.

¶22            The ambiguity in the federal statute stems from use of the
phrase "any firearm" in the law's definition of the object of the offense.
Valentine, 706 F.2d at 292-93; see also United States v. Kinsley, 518 F.2d 665,
668 (8th Cir. 1975) ("the word 'any' has typically been found ambiguous in
connection with the allowable unit of prosecution"). Because the federal
statute is unclear as to the unit of prosecution Congress intended for the
offense, the federal courts have applied the rule of lenity in holding that
only one offense occurs for a singular act regardless of the number of
weapons involved. See, e.g., Valentine, 706 F.2d at 293-94; Kinsley, 518 F.2d
at 670.

¶23            But the ambiguity present in the federal statute is not present
in the Arizona provision. Unlike the federal statute's use of the phrase "any
firearm," A.R.S. § 13-3102(A)(8) is written in the explicit singular, using the
phrase "a deadly weapon" (not "any deadly weapon"). The distinction
between use of the article "a" and "any" in determining the unit of
prosecution is well recognized by the courts in other jurisdictions,
including the federal courts. See, e.g., United States v. Alverson, 666 F.2d 341,
347 (9th Cir. 1982) (phrase "to receive or possess a firearm" expresses
legislative intent to allow separate prosecution for each firearm); Sanders v.
United States, 441 F.2d 412, 414–15 (10th Cir. 1971) (each firearm is a separate
offense under statute that makes it unlawful for any person to receive or
possess "a firearm which is not registered to him"); Grappin v. State, 450
So.2d 480, 482 (Fla. 1984) (article "a" in reference to "firearm" in statute
clearly shows legislature intended to make each firearm a separate unit of
prosecution); Taylor v. State, 929 N.E.2d 912, 921 (Ind. App. 2010) ("In giving
the words 'a' and 'firearm' their plain and ordinary meaning, we conclude
that the legislature's intent was to make each unlawful possession of one
firearm by a serious violent felon a separate and independent crime."); State
v. Kidd, 562 N.W.2d 764, 766 (Iowa 1997) (decision upholding multiple
prosecutions "is in accord with the majority of courts which have
determined the appropriate unit of prosecution under statutes using the
same language"); State v. Lindsey, 583 So.2d 1200, 1204 (La. App. 1991)
(statute prohibiting possession of "a firearm" authorized separate
prosecutions for each weapon possessed). But see People v. Haggart, 370


                                       8
                          STATE v. GUTIERREZ
                           Opinion of the Court

N.W.2d 345, 354 (Mich. App. 1985) (statute prohibiting possession of "a
firearm" during commission of felony allows only single prosecution,
regardless of number of weapons possessed).

¶24          Beyond the cases interpreting 18 U.S.C. § 922, Gutierrez offers
no other support for his contention that the unit of prosecution under A.R.S.
§ 13-3102(A)(8) sweeps together into a single offense the use or possession
of any number of deadly weapons while committing a drug felony. To the
extent the Arizona statute is ambiguous, we agree with the State that the
purpose of the provision – to specially criminalize a drug crime that is more
dangerous because it involves a deadly weapon – is served by allowing
multiple charges to be brought when a defendant commits a drug felony
while using or possessing multiple deadly weapons. Each weapon a
defendant uses or possesses renders the predicate offense incrementally
more dangerous.

¶25          For these reasons, we conclude the allowable unit of
prosecution for a violation of A.R.S. § 13-3102(A)(8) is each deadly weapon
used or possessed during the commission of a felony drug offense.
Accordingly, no double jeopardy violation occurred when Gutierrez was
convicted and sentenced on two counts of misconduct involving weapons.

D.           Alleged Judicial Vindictiveness in Sentencing.

¶26           Gutierrez argues the superior court judge violated his due-
process rights by imposing a longer sentence after the jury convicted him
than she had said she would give him if he accepted a plea offer before
trial.3 Gutierrez argues judicial vindictiveness is presumed when, as here,
a judge promises to impose a particular sentence in connection with a
prosecution's plea offer, then imposes a harsher sentence after the
defendant declines the plea and is convicted after trial.

¶27           During a settlement conference held just before the hearing
on the motion to suppress evidence from the traffic stop in this case, the
State offered to dismiss the other charges and recommend a sentence of no
more than 10 years if Gutierrez would plead guilty to transportation of
methamphetamine for sale and aggravated DUI. See A.R.S. § 13-3407(E)
(2016) (presumptive sentence for first-time offense of transportation of
dangerous drug for sale is 10 years). Speaking directly to Gutierrez in the
presence of counsel, the trial judge initially observed that an appropriate


3     Because Gutierrez did not raise this contention in the superior court,
we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19.


                                     9
                           STATE v. GUTIERREZ
                            Opinion of the Court

sentence for the two charges in the plea offer would be no more than eight
and a half years. The judge said, "Certainly I would think, under the plea,
that a mitigated term would be appropriate. Again, how mitigated, I'm not
sure . . . . But I could probably see a cap, based on purposes [sic] of the plea
negotiations, of no more than eight and a half. I could go less than that; I'm
just trying to give myself a little bit of a range under this plea."

¶28             After a break to allow Gutierrez to confer with counsel, the
judge returned to the bench and said that after giving it more thought, a
shorter sentence would be appropriate under the proposed plea. She
acknowledged that Gutierrez might defend the drug charge by arguing he
knew nothing about the methamphetamine in the car, but pointed out that
defense would still leave the aggravated DUI charge (based on Gutierrez's
admitted use of heroin the morning of the traffic stop). The judge told
Gutierrez the maximum term on the aggravated DUI charge, by itself,
would be 7.5 years.4 The court continued, "So it seems appropriate to me
that [under the plea] I should make it a maximum of 7.5 rather than the 8.5
I told you. Again, I don't know if that makes any difference to you, but I
want to let you know that I would – if you were interested in the plea, I
would maximize my sentence at 7.5, which is the maximum that you could
get after trial if you were just convicted of the aggravated DUI and not the
drug charges, so for what it's worth. . . . [I]f you take the plea, I wouldn't
impose more than 7.5, which is the maximum you could get at trial, even if
you won on all the drug charges."

¶29            Ultimately, Gutierrez declined to accept the plea, and the
jury convicted him of seven charges. The court imposed a term of 14 years'
incarceration on the charge of transportation of methamphetamine for sale;
each of the other sentences the court imposed were for shorter terms, and




4      The sentence the court described was the maximum that could be
imposed on a category-two offender, upon proof of two or more
aggravating factors. (Before the settlement conference, the State had
alleged Gutierrez had three prior felony convictions, each for an offense
committed in New Mexico. There was no discussion during the conference
about whether any of the three prior felonies constituted an historical prior
felony conviction pursuant to A.R.S. § 13-105(22)(a)-(c) (2016). During the
settlement conference, the judge apparently presumed (without objection
from any of the parties) that the third prior felony, if proved, would
constitute an historical prior felony pursuant to § 13-105(22)(d) ("[a]ny
felony conviction that is a third or more prior felony conviction").)


                                      10
                           STATE v. GUTIERREZ
                            Opinion of the Court

all were ordered to run concurrently. (The court imposed a term of seven
years on the aggravated DUI conviction).

¶30            Contrary to Gutierrez's argument, there is no automatic
presumption of unconstitutional vindictiveness whenever a judge imposes
a greater sentence after trial than the judge offered during pretrial plea
negotiations. The Supreme Court has held that a presumption of
unconstitutional vindictiveness applies only when "there is a 'reasonable
likelihood' that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority." Alabama v. Smith,
490 U.S. 794, 799 (1989) (citation omitted). As the Court recognized in Smith,
"in the course of the proof at trial the judge may gather a fuller appreciation
of the nature and extent of the crimes charged," and, in addition, "[t]he
defendant's conduct during trial may give the judge insights into his moral
character and suitability for rehabilitation." Id. at 801. Lastly, "the factors
that may have indicated leniency as consideration for the guilty plea are no
longer present." Id. For all those reasons, the mere imposition of a greater
sentence after trial than offered in exchange for a pretrial plea "is not more
likely than not attributable to the vindictiveness on the part of the
sentencing judge." Id. See German v. United States, 525 A.2d 596, 603 (D.C.
App. 1987) (after defendant rejects a plea, the "mere fact of a sentence
increase does not show vindictiveness"); Wilson v. State, 845 So. 2d 142, 150
(Fla. 2003) (declining to "adopt a presumption of vindictiveness that arises
whenever the trial judge participates in the plea negotiations and the
defendant subsequently receives a harsher sentence after a trial or
hearing"); State v. Davis, 584 A.2d 1146, 1147 (Vt. 1990) ("presumption of
vindictiveness does not arise when the sentencing judge has participated in
plea bargain discussions that did not lead to an agreement" and then
imposes a harsher sentence at the conclusion of the trial).

¶31           Gutierrez also argues that, even absent presumed
vindictiveness, his due-process rights were violated because the judge
imposed a longer sentence than she had offered during the settlement
conference. The record, however, contains no support for Gutierrez's
contention. The judge made no inappropriately passionate statements,
either during the settlement conference or at sentencing, that might
evidence vindictiveness. Cf. Stephney v. State, 564 So. 2d 1246, 1247-48 (Fla.
App. 1990) (citing as evidence of vindictiveness a judge's comments that
"[t]he next time he will know to take [the offer] when I offer it at
arraignment" and "I will, as a gesture of goodwill leave [the offer] open right
now before you have to decide if your client is testifying, for about fifteen
seconds"); Wilson, 845 So. 2d at 153-57 (listing evidence of vindictiveness in
other cases).


                                      11
                           STATE v. GUTIERREZ
                            Opinion of the Court

¶32            Although the State had alleged aggravating factors before the
settlement conference, it had not yet proven them and in fact, the State took
the position that it would recommend sentences of no longer than the
presumptive if Gutierrez would accept the plea offer. After convicting
Gutierrez of each of the seven charges, however, the jury found two
aggravating factors, presence of an accomplice and that the crimes were
committed for pecuniary gain. See A.R.S. § 13–701(D)(4), (6) (2016). The
aggravating factors allowed the judge to impose a term of 14 years on the
charge of transportation of methamphetamine for sale. A.R.S. § 13-3407(E)
(range of five to 15 calendar years for first-time offense). Cf. Smith, 490 U.S.
at 801 ("relevant sentencing information available to the judge after the plea
will usually be considerably less than that available after a trial").5

¶33           Under these circumstances, the record does not support
Gutierrez's contention that the judge acted with actual vindictiveness in
imposing the sentences. Smith, 490 U.S. at 799. Gutierrez has failed to
demonstrate error, much less fundamental error, in the imposition of a
sentence greater than promised as part of the plea offer.

¶34            Although no legal error occurred in this case, the better
practice is that, resources allowing, the judge who presides over a criminal
settlement conference be someone other than the judicial officer who will
preside over the trial if a settlement is not reached. Due-process issues such
as those Gutierrez argues are avoided altogether when another judicial
officer presides over the settlement conference. Cf. Arizona Rule of
Criminal Procedure 17.4(a) (absent consent of both parties, settlement
conference "discussions shall be before another judge or a settlement
division."). Moreover, when circumstances do not allow the participation
of another judicial officer in the settlement conference, a trial judge
participating in a settlement conference should avoid making promises
about sentencing or using language that the defendant is likely to
understand to be a promise.


5      At the settlement conference, the judge had told Gutierrez of the
presumptive sentences on the other charges for an offender with a single
historical prior felony conviction. After Gutierrez admitted three prior
felony convictions during trial, the judge sentenced him as a category three
offender (two historical prior felonies) on each of the convictions other than
the methamphetamine charge. At sentencing, Gutierrez did not dispute
that he was subject to sentencing as a category three offender and, in any
event, the 14-year sentence the court imposed on the methamphetamine
charge was the longest of the concurrent sentences the court imposed.


                                      12
                          STATE v. GUTIERREZ
                           Opinion of the Court

E.     Imposition of Flat-Time Sentence.

¶35          The court ordered that Gutierrez was not eligible for early
release on the 14-year sentence it imposed on his conviction for
transportation of methamphetamine for sale; rather, it ordered that
sentence must be "flat time." Relying on language in A.R.S. § 13-3407(F),
Gutierrez argues the court erroneously did not believe it had discretion to
give him the benefit of early release.

¶36            As noted, Gutierrez was convicted of transportation of
methamphetamine for sale under A.R.S. § 13-3407(A)(7). Subpart (F) of §
13-3407 provides that a person convicted of violating § 13–3407(A)(7) for
transporting methamphetamine for sale "is not eligible for suspension of
sentence, probation, pardon or release from confinement on any basis until
the person has served the sentence imposed by the court, the person is
eligible for release pursuant to § 41–1604.07 or the sentence is commuted."
Gutierrez argues that the reference to release credits in this statute - "the
person is eligible for release pursuant to § 41–1604.07" - grants the superior
court authority to sentence a defendant to flat time or early release if
deemed eligible by the Department of Corrections pursuant to A.R.S. § 41-
1604.07 (2016). In other words, Gutierrez asserts a flat-time sentence is not
mandatory.

¶37            In Hasson, 217 Ariz. at 562, ¶ 13, we characterized the
language in § 13–3407(F) as "somewhat perplexing," given that § 13–3407(E)
requires the imposition of a calendar-year or flat-time prison term. We
resolved any ambiguity, however, by looking to the legislature's intent of
imposing calendar-year sentences for certain methamphetamine-related
offenses. Hasson, 217 Ariz. at 562-63, ¶¶ 12, 17. We concluded that § 13–
3407(F) "does not provide for release credits because § 41–1604.07(A)
specifically excludes eligibility for anyone 'sentenced to serve the full term
of imprisonment imposed by the court.'" Hasson, 217 Ariz. at 563, ¶ 16.

¶38           The same analysis applies here. Section 13-3407(E) provides
that a person convicted of transportation of methamphetamine for sale
"shall" be sentenced to a prison term between five and 15 "calendar years."
The phrase "calendar year" is defined as "three hundred sixty-five days'
actual time served without release, suspension or commutation of sentence,
probation, pardon or parole, work furlough or release from confinement on
any other basis." A.R.S. § 13-105(4) (2016). Although we continue to view
the language in § 13–3407(F) as "somewhat perplexing," because the
superior court was required to sentence Gutierrez to a calendar-year prison
term, defined as without release, the court had no discretion to make


                                     13
                          STATE v. GUTIERREZ
                           Opinion of the Court

Gutierrez eligible for early release. Thus, the superior court did not abuse
its discretion in imposing the flat-time sentence.

                              CONCLUSION

¶39          For the foregoing reasons, we affirm Gutierrez's convictions
and sentences.




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




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