In a recent appellate opinion in an Arizona drug case, the defendant unsuccessfully appealed his conviction of one count of possession or use of dangerous drugs and one count of possession of drug paraphernalia with the aggravating circumstance that he was on release from confinement and had historical prior felony convictions. In the appeal, the defendant argued that he was incorrectly charged, as the two prior felony convictions used to enhance his sentence did not qualify as historical prior felony convictions. The appeals court affirmed the lower court decision, finding that because the defendant did not argue that his prior convictions were too remote in time to qualify as historical prior felony convictions, the issue could only be reviewed for fundamental error. Subsequently, the appeals court ruled that defendant did not show that the superior court did not commit a fundamental, prejudicial error by sentencing him as a Category 3 offender.
Facts of the Case
According to the opinion, the defendant was arrested and charged with possession or use of dangerous drugs and possession of drug paraphernalia. The defendant was on parole at the time and had at least three prior felony convictions, placing him in Category 3 as a repeat offender. His prior convictions were possession of a dangerous drug, a class 4 felony, committed on April 2, 2016, possession of drug paraphernalia, a class 6 felony, committed on November 20, 2013, and a class 6 felony, committed on December 26, 2013.
On appeal, the defendant argued that his convictions for possession of drug paraphernalia, committed on November 20, 2013, and December 26, 2013, do not qualify as historical prior felony convictions because he committed those offenses more than five years before he committed the present offenses on June 2, 2019. In superior court, the defendant and defense counsel expressly stated that they acknowledged his parole status and his three prior felony convictions. The appeals court found that because the defendant did not argue to the superior court that his 2013 drug offenses were too remote in time to qualify as historical prior felony convictions, the appeals court could only review the decision for fundamental error. To prevail under fundamental error review, the defendant must establish both that fundamental error exists and that the error caused him prejudice. Fundamental error review goes to the foundation of the case, deprives the defendant of a right essential to his defense, or is of such magnitude that the defendant could not possibly have received a fair trial. The appeals court acknowledged that the improper use of a conviction as a historical prior felony conviction for enhancement purposes constitutes a fundamental error.
However, the appeals court holds that the defendant’s silence on this issue in the superior court trial prevents him from effectively bringing this issue on appeal. The opinion states that the burden of persuasion borne by a defendant in fundamental error review does not permit him to remain silent at trial and reserve the ‘hole card’ of a later appeal on a matter that was curable at trial. Regardless, the appeals court holds points out that two of the defendant’s felonies are ‘forever’ historical priors, qualifying the defendant as “a category three offender even without accounting for the tolling [of time]from his incarceration” as disputed on appeal. The court of appeals affirmed the superior court decision in full.
Have You Been Charged with a Drug Crime in Arizona?
If you are facing criminal charges for a drug crime in Arizona, call us at The Law Office of James E. Novak. We are committed to protecting your rights and examining every aspect of your case to find the holes in the prosecution’s charges against you. For a free and confidential consultation, you can call us at 480-413-1499. You can also send us an online message to have your questions answered.