                                                                FILED BY CLERK
                          IN THE COURT OF APPEALS                  APR 22 2010
                              STATE OF ARIZONA
                                                                    COURT OF APPEALS
                                DIVISION TWO                          DIVISION TWO




THE STATE OF ARIZONA,                          )   2 CA-CR 2009-0020
                                               )   DEPARTMENT A
                                 Appellee,     )
                                               )   OPINION
                    v.                         )
                                               )
CHRISTOPHER WAYNE FRANCIS,                     )
                                               )
                                Appellant.     )
                                               )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20073878

                         Honorable Howard Hantman, Judge

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Amy M. Thorson                                     Tucson
                                                            Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Robb P. Holmes                                                         Tucson
                                                           Attorneys for Appellant


K E L L Y, Judge.
¶1               After a jury trial, Christopher Francis was convicted of multiple felony

charges related to his involvement in marijuana trafficking. The trial court sentenced him

under A.R.S. § 13-3419 for multiple drug offenses committed on separate occasions and

consolidated for trial. On appeal, he contends the court improperly imposed enhanced

sentences for several of his convictions.1 We affirm.

                                         Background

¶2               “We view the facts and all reasonable inferences therefrom in the light most

favorable to upholding the verdicts.” See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d

914, 914 (App. 1999). In September 2006, a police officer observing suspected drug

transportation activity saw appellant Francis and his codefendant Monica Guzman enter a

house on Calle Lado Al Rio in Tucson. Francis and Guzman left shortly thereafter in one

car, following a second car driven by codefendant Rohan Butler. Officers followed

Butler to a house on Camino Laguna Seca and conducted a “knock and talk”

investigation.

¶3               When Butler answered the door, he was talking on several cellular

telephones. He told the officers he was visiting the house and his friend “Michael” lived

there. While talking to officers, Butler answered a call and told them the caller said the

police did not have a warrant and Butler could not let them in the house. At the same

       1
        Francis raises other issues that do not meet the criteria for publication. See Ariz.
R. Sup. Ct. 111(b). We address them in a separate, contemporaneously filed
memorandum decision. See Ariz. R. Sup. Ct. 111(h). Although not directly relevant to
the issue discussed here, we provide the facts and procedural background in this opinion
to provide context for our discussion.

                                               2
time, other officers found two bales of marijuana behind the back wall of the house and

saw footprints leading from the back door to the bales.

¶4            After officers obtained warrants to search both houses, they first searched

the Laguna Seca house and found documents bearing Francis‟s name, photographs of

Francis and Guzman, letters addressed to individuals at the Calle Lado Al Rio address,

marijuana, ledgers, a digital scale, and packing materials. In the master bedroom, they

found a drug ledger and shipping receipts in Francis‟s handwriting, with the Calle Lado

Al Rio address. They also found $12,940 in cash and two handguns in the master

bedroom closet.

¶5            When officers searched the house on Calle Lado Al Rio, they found it

unoccupied and sparsely furnished. In it they found a pistol, wooden crates, shipping

boxes, a fifty-pound digital scale, marijuana, some ledgers, and a piece of cardboard with

Francis‟s handwriting on it. Francis was indicted, and a warrant issued for his arrest.

¶6            In April 2007, while these charges were pending, the Drug Enforcement

Administration (DEA) received an unrelated tip from a local trucking company about a

suspicious shipment. An undercover agent accompanied a trucking company employee

to a house on Placita Brisa Grande in Tucson to pick up several shipping crates suspected

to contain drugs.    The crates contained approximately 1,200 pounds of marijuana.

Officers saw codefendant Mark Prehay meet the truck, oversee its loading, and leave in a

car with Francis shortly after the truck left.     Agents later found trucking company

receipts, drug ledgers, packaging materials, air fresheners, and a gun inside this house.


                                             3
Based on the shipping dates on various receipts found at the three residences, mostly in

Francis‟s handwriting, the state learned when other shipments of marijuana had been

made. One receipt listed a shipment of 310 pounds from the same address, which DEA

agents in Pennsylvania had intercepted and found to contain 310 pounds of marijuana.

¶7            The state obtained a second indictment encompassing both the charges

from the first indictment and new transportation charges alleged after the April 2007

incident.2 The state charged Francis with thirteen felony counts, including one count of

conspiracy to commit possession and/or transportation of marijuana for sale, one count of

possession of a deadly weapon during the commission of a felony drug offense, one

count of possession of marijuana for sale, and ten counts of transportation of marijuana

for sale.

¶8            After a twelve-day trial, the jury found Francis guilty of all counts except

three counts of transporting marijuana for sale.3 The trial court imposed a combination of

consecutive and concurrent, presumptive sentences under § 13-3419, totaling fourteen

years‟ imprisonment. This appeal followed.




       2
       The trial court later dismissed the earlier case as to Francis because the
indictment for the current case included those charges.
       3
        At the close of the state‟s case, the court granted the state‟s motion to dismiss one
of the transportation charges and it declared a mistrial as to two other transportation
counts for which the jury had been unable to reach a verdict.

                                             4
                                         Discussion

¶9            Francis contends the trial court improperly enhanced his sentences because

he had received no notice of the state‟s intent to seek sentence enhancements before trial.

The state did not cite § 13-34194 in the indictment nor did it file a separate allegation

related to that statute. But the indictment charged Francis with multiple drug offenses

committed on different days. After counsel argued to the court whether § 13-3419 could

be applied, the court sentenced Francis under that statute. “Sentencing determinations are

reviewed for abuse of discretion,” State v. Davolt, 207 Ariz. 191, ¶ 112, 84 P.3d 456, 481

(2004), but we review questions of statutory interpretation de novo. State v. Benak, 199

Ariz. 333, ¶ 9, 18 P.3d 127, 129 (App. 2001).

¶10           Section 13-3419 provides that a defendant convicted of two or more of

certain drug-possession offenses “that were not committed on the same occasion but

. . . are consolidated for trial” is subject to the sentencing range set forth in that statute.

For Francis‟s class two felonies involving more than the statutory threshold amount of

drugs, the presumptive sentence under § 13-3419 is five years for a defendant convicted

of two offenses and seven years for a defendant convicted of three or more offenses.

§ 13-3419.5


       4
         The Arizona criminal sentencing code has been renumbered, effective “from and
after December 31, 2008.” See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120. For ease of
reference and because the renumbering included no substantive changes, see id., we refer
in this decision to the current section numbers rather than those in effect at the time of the
offense in this case.
       5
        In contrast, five years is the presumptive sentence for a defendant convicted of a
single class two felony. A.R.S. § 13-702(D).
                                             5
¶11           As Francis concedes, “no court has specifically addressed the notice

required to apply a sentence enhancement under . . . § 13-3419.” But, as he also points

out, courts have required the state to give defendants notice if it wishes to enhance a

sentence pursuant to other statutes. In requiring notice, courts have expressed concern

about fundamental fairness and due process. See Benak, 199 Ariz. 333, ¶ 14, 18 P.3d at

130-31; State v. Guytan, 192 Ariz. 514, ¶ 32, 968 P.2d 587, 595-96. To satisfy those

concerns and allow a defendant to decide whether to accept a plea, the “„defendant

should know the full extent of the potential punishment that he faces before trial.‟” State

v. Waggoner, 144 Ariz. 237, 238-39, 697 P.2d 320, 321-22 (1985), quoting State v.

Rodgers, 134 Ariz. 296, 306, 655 P.2d 1348, 1358 (App. 1982).

¶12           To that end, in the context of sentences enhanced by prior convictions,

courts have required “[n]otice . . . such that the defendant is not „misled, surprised or

deceived in any way by the allegations‟ of prior convictions.” Benak, 199 Ariz. 333,

¶ 16, 18 P.3d at 131, quoting State v. Bayliss, 146 Ariz. 218, 219, 704 P.2d 1363, 1364

(App. 1985). The state is also required to provide notice before trial that it intends to

seek enhanced punishment for offenses committed while a defendant is on “release

status.”   Waggoner, 144 Ariz. at 239, 697 P.2d at 322.         Likewise, the state must

specifically allege that it seeks enhancements for violent crimes, gang motivation,

dangerous crimes against children, or dangerous offenses.        See A.R.S. § 13-901.03

(violent crimes); Guytan, 192 Ariz. 514, ¶ 37, 968 P.2d at 596 (gang involvement); State

v. Hollenback, 212 Ariz. 12, ¶¶ 9-11, 126 P.3d 159, 162-63 (App. 2005) (dangerous


                                            6
crimes against children); State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App.

1994) (dangerousness).

¶13          In State v. Tresize, however, our supreme court ruled that a defendant had

sufficient notice a sentencing enhancement would apply when the state alleged the use of

a deadly weapon or dangerous instrument in the indictment even though it did not make a

separate allegation or include a citation to the relevant statute in the indictment. 127

Ariz. 571, 574, 623 P.2d 1, 4 (1980). The facts necessary to support sentencing Tresize

under the enhancement statute were alleged in the indictment and the court therefore

found “no resulting prejudice or surprise from the omission of the citation.”          Id.

Although in this case the state did not file a separate allegation citing § 13-3419, the

indictment gave Francis notice that he was charged in a single cause with multiple drug

offenses committed on different days, thereby alleging all the facts necessary to satisfy

§ 13-3419. See id. Unlike the true enhancement statutes discussed above, which require

proof of an additional fact not required to prove the underlying offenses, such as the age

of a child victim or conviction of a violent offense, § 13-3419 does not require proof of

any facts beyond those necessary for the underlying drug convictions.

¶14          Indeed, § 13-3419 is “the exclusive sentencing provision for multiple drug

offenses not committed on the same occasion but consolidated for trial.”         State v.

Dominguez, 192 Ariz. 461, ¶ 8, 967 P.2d 136, 139 (App. 1998). Further, “Arizona courts

have a duty to impose a sentence authorized by statute and within the limits set by the

legislature.” State v. Monaco, 207 Ariz. 75, ¶ 9, 83 P.3d 553, 556 (App. 2004). Because


                                            7
Francis was charged with multiple drug offenses committed on different days, the

provisions of § 13-3419 applied to him whether or not the state separately alleged the

statute. Cf. Bolton v. Superior Court, 190 Ariz. 201, 203, 945 P.2d 1332, 1334 (App.

1997) (defendant‟s eligibility for probation-only sentencing under A.R.S. § 13-901.01,

“is a matter of law to be decided by the court . . . not a matter of pleading or plea

bargaining to be decided by the State”).

¶15           Because the indictment alleged all the facts necessary for the trial court to

sentence Francis under § 13-3419, the exclusive sentencing provision for his crimes,

Francis presumptively was aware of “„the full extent of the potential punishment that he

face[d] before trial.‟” Waggoner, 144 Ariz. at 239, 697 P.2d at 322, quoting Rodgers,

134 Ariz. at 306, 655 P.2d at 1358; see also Merrill v. Gordon, 15 Ariz. 521, 532, 140 P.

496, 500 (1914) (“„The administration of justice, the law itself as a practical system . . .

requires that some fundamental assumptions should be made as postulates. The most

important of all these is the assumption that all persons of sound and mature mind are

presumed to know the law.‟”), quoting Copper Belle Mining Co. v. Gleeson, 14 Ariz.

548, 555, 134 P. 285, 288 (1913); cf. A.R.S. § 13-204(B) (“Ignorance or mistake as to a

matter of law does not relieve a person of criminal responsibility.”). Thus, we cannot say

the state surprised or misled Francis about what his sentence would be, see Benak, 199

Ariz. 333, ¶ 16, 18 P.3d at 131, particularly when he has neither alleged nor even

suggested that the application of § 13-3419 was a factor he considered in reaching his

decision to proceed to trial.


                                             8
¶16           Our conclusion that § 13-3419 may be applied in these circumstances is

bolstered by its history. In 1993, the legislature enacted several statutes to address

problems with the state‟s mandatory sentencing system. See Cami Byrd, Legislative

Review, Criminal Code Revision, 26 Ariz. St. L.J. 341, 342-43 (1994). Among these new

statutes were several addressing drug offenses, including § 13-3419. Id. at 346-47 &

n.40.6

                     This statute and its companion, A.R.S. § 13-702.02,
              supplanted the practice of alleging “Hannah” priors. . . . For
              instance, previously, under [State v.] Hannah, [126 Ariz. 575,
              617 P.2d 527 (1980),] when a defendant was convicted of
              three felony counts that were tried together, the state could
              allege two of the convictions as priors for the other
              conviction, thus subjecting a defendant who came to court
              without a prior conviction to a lengthy prison term. The
              sentencing provisions promulgated in A.R.S. section 13-
              702.02 and -3419 are much less severe.

State v. Christian, 205 Ariz. 64, n.11, 66 P.3d 1241, 1245 n.11 (2003). Whether alleged

or not, § 13-3419 also protects defendants who, like Francis, are convicted at one trial for

offenses committed on different occasions from receiving lengthy prison terms based

upon prior convictions which had not existed when the trial began.             Under these

circumstances, we cannot say the trial court abused its discretion in sentencing Francis

under § 13-3419, even in the absence of it being separately alleged by the state.

         6
       In 1996, the legislature amended A.R.S. § 13-3419(A) to apply in cases where the
defendant‟s prior conviction did not qualify as an historical prior felony conviction,
thereby “increas[ing] the number of drug offenses for which a prison sentence was
mandatory.” State v. Christian, 205 Ariz. 64, ¶ 17, 66 P.3d 1241, 1246 (2003); see also
1996 Ariz. Sess. Laws, ch. 123, §§ 1, 3. In this decision we address only those cases
where, as here, a defendant is charged with two or more drug offenses not committed on
the same occasion but consolidated for trial.
                                              9
                                    Disposition

¶17          For the foregoing reasons, as well as those set out in our separate

memorandum decision, we affirm Francis‟s convictions and sentences.




                                          /s/ Virginia C. Kelly
                                          VIRGINIA C. KELLY, Judge

CONCURRING:


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Presiding Judge




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