State v. Sanoe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

MUSTAFA SANOE, Appellant.

No. 1 CA-CR 19-0375
FILED 7-7-2020

Appeal from the Superior Court in Maricopa County
No. CR 2019-000019-001
The Honorable Dewain D. Fox, Judge

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
 STATE v. SANOE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Chief Judge Peter B. Swann1 joined.

B R O W N, Judge:

¶1 Mustafa Sanoe appeals his conviction and sentence for one
count of unlawful flight from a law enforcement vehicle, arguing his
sentence is unlawful. For the following reasons, we affirm the conviction
and sentence but correct the sentencing order to reflect the appropriate
number of Sanoe’s prior felony convictions.

BACKGROUND

¶2 Sanoe was driving a Jeep one afternoon in December 2018.
Two police detectives driving an unmarked police car ran the Jeep’s license
plate number while stopped at a red light and discovered the Jeep had a
canceled insurance policy. They initiated a traffic stop using emergency
lights. Sanoe stopped the Jeep but sped away when the detectives
approached on foot. The detectives followed the Jeep but eventually called
off the pursuit for public safety reasons. A few weeks later police arrested
Sanoe, who admitted he was the driver of the Jeep. Sanoe was on probation
at the time of the offense.

¶3 The State charged Sanoe with one count of unlawful flight
from a law enforcement vehicle, a non-dangerous class 5 felony. The State
alleged he had two historical prior felony convictions—(1) assisting a street
gang, a class 3 felony, committed on July 2, 2014 (convicted August 18,
2015)2; and (2) second-degree burglary, a class 3 felony, committed on
March 26, 2015 (convicted August 18, 2015). In its settlement conference

1 Chief Judge Peter B. Swann replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Chief Judge Swann has read the
briefs and reviewed the record.

2 The State agrees it misstated the dates for Sanoe’s assisting a street
gang conviction. Sanoe committed that offense on June 26, 2014, and was
convicted on October 31, 2014.

2
 STATE v. SANOE
Decision of the Court

memorandum, the State indicated that Sanoe had an additional felony
conviction for threatening and intimidating, a class 3 felony, committed on
June 25, 2014, and convicted August 18, 2015.3 The State did not, however,
move to amend its allegation of historical prior felony convictions.

¶4 At trial, Sanoe admitted he had two unspecified prior
felonies, one committed on June 26, 2014, in CR2014-130840-002, and
another committed on March 26, 2015, in CR2015-117295-001. A jury found
Sanoe guilty as charged and found five aggravating factors. The superior
court found that Sanoe had three prior felony convictions4 and sentenced
him to five years (presumptive) in prison as a non-dangerous category three
repetitive offender pursuant to A.R.S. § 13-703(J). The court revoked
Sanoe’s probation in another matter, imposed sentencing, and ordered his
sentences in that matter to be served consecutive to the sentence in this
matter. Sanoe appealed.

DISCUSSION

¶5 Sanoe raises three issues concerning his sentence, none of
which were raised in the superior court. We review a claim raised for the
first time on appeal for fundamental error. State v. Escalante, 245 Ariz. 135,
140, ¶ 12 (2018). Under that standard, Sanoe must first prove the court
erred. See id. at 142, ¶ 21. If error exists, we must decide whether the error
was fundamental, considering the totality of the circumstances. Id. An
illegal sentence constitutes fundamental error. State v. Pesqueira, 235 Ariz.
470, 478, ¶ 29 (App. 2014). A defendant must also make a separate showing
of prejudice if he establishes fundamental error. Id.

¶6 Sanoe first argues the superior court committed fundamental
error and violated his due process rights by finding that he had three prior

3 The State also acknowledges these dates are wrong. Sanoe
committed the threatening and intimidating offense on June 26, 2014, and
the date of his conviction was October 31, 2014.

4 The court’s sentencing order correctly states that Sanoe was
convicted of threatening/intimidating, a class 3 felony, committed on June
26, 2014 (convicted on October 31, 2014); assisting a criminal street gang, a
class 3 felony, committed on June 26, 2014 (convicted on October 31, 2014);
and second degree burglary, a class 3 felony, committed on March 26, 2015
(convicted on August 18, 2015). The State charged the threatening and
intimidating and assisting a criminal street gang offenses under the same
cause number, CR2014-130840-002.

3
 STATE v. SANOE
Decision of the Court

felony convictions instead of just the two alleged by the State—assisting a
street gang and second-degree burglary. As noted supra ¶ 3, the State did
not move to amend its allegation of historical prior felony convictions.
Thus, although the court erred in finding that Sanoe had three such
convictions instead of two, Sanoe cannot show the requisite prejudice
entitling him to re-sentencing.

¶7 The superior court imposed the presumptive sentence
consistent with Sanoe having two or more prior felony convictions. See
A.R.S. § 13-703(C), (J) (stating that a defendant shall be sentenced as a
category three repetitive offender if convicted of a felony and he has two or
more historical prior felony convictions, and the presumptive sentence for
a category three repetitive offender convicted of a class 5 felony is five
years). Sanoe was therefore not prejudiced because the State only needed
to prove two prior felony convictions, and he was on notice he could be
sentenced as a category three repetitive offender based on the State’s
allegation of those two prior convictions. However, because the State did
not allege that Sanoe had a prior felony conviction for threatening and
intimidating, we correct the sentencing order to show that Sanoe had two
prior felony convictions—for assisting a street gang and second degree
burglary—rather than three.

¶8 Next, Sanoe argues the superior court erred by not
determining whether two of his prior felony convictions were committed
on the same day and therefore could only be considered as one conviction.
Section 13-703(L) provides that convictions for two or more offenses
committed on the same occasion shall only be counted as one historical
prior felony conviction. The State concedes that because two of Sanoe’s
prior felony convictions—threatening and intimidating and assisting a
criminal street gang—were committed on the same occasion they may only
be counted as one historical prior felony conviction. Although the court did
not make an express determination of whether the offenses were committed
on the same occasion (and was not asked to do so), the sentencing order
shows the court was aware that the offenses were charged under the same
cause number, CR2014-130840-002, were both committed on June 26, 2014,
and that Sanoe was convicted of both offenses on October 31, 2014. The
court also found the existence of a prior felony conviction for second degree
burglary, a class 3 felony, committed on March 26, 2015. The court applied
A.R.S. § 13-703(L) correctly. See State v. Moody, 208 Ariz. 424, 443, ¶ 48 (2004)
(“We presume that a court is aware of the relevant law and applied it
correctly in arriving at its ruling.”). And Sanoe was not prejudiced because
the court imposed the presumptive sentence consistent with Sanoe having

4
 STATE v. SANOE
Decision of the Court

two or more prior felony convictions, which meant the State only needed to
prove the existence of two such convictions.

¶9 Finally, Sanoe contends the superior court erred and violated
his due process rights by finding that he had a prior felony conviction for
assisting a street gang because the State’s allegation of prior historical
felony convictions provided different dates for the date of the offense and
the conviction than those given by the court, and the State never moved to
amend or correct those dates. Sanoe did not object to the wrong dates in
the superior court, and he was on notice that the State was alleging he had
a prior felony conviction for assisting a street gang, a class 3 felony, in cause
number CR2014-130840-002. After reviewing the sentencing order in that
matter (and the sentencing order in the burglary matter), the court
ultimately stated the correct dates for each of Sanoe’s prior felony
convictions when sentencing him. No fundamental error occurred.

CONCLUSION

¶10 We affirm Sanoe’s conviction and sentence but correct the
sentencing order to reflect that Sanoe had only two prior felony convictions,
for assisting a street gang and second-degree burglary.

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

5