State v. Torres Moreno

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

WSVALDO TORRES MORENO, Appellant.

No. 1 CA-CR 19-0442
FILED 08-27-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-129397-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
 STATE v. TORRES MORENO
Opinion of the Court

W I N T H R O P, Judge:

¶1 Wsvaldo Torres Moreno appeals his enhanced sentence for
resisting arrest. The trial court added two years to Moreno’s sentence under
Arizona Revised Statutes (“A.R.S.”) section 13-708(D) because Moreno
committed the offense while on felony release. At the time he resisted
arrest, Moreno was (1) on felony-release status for unrelated charges and
(2) in custody for an unrelated misdemeanor. Moreno argues § 13-708(D)
did not apply because, having been taken into custody on the unrelated
misdemeanor, he was no longer on release when he resisted arrest. Because
Moreno’s arrest for an unrelated misdemeanor did not change his felony-
release status, the court did not err in enhancing his sentence under § 13-
708(D). Accordingly, we affirm Moreno’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 The relevant facts are uncontested. In April 2018, some two
months before the incident at issue here, Moreno was arrested, charged
with multiple felony offenses, and released on a $50 bond. In June 2018,
police officers contacted Moreno while responding to a “check welfare”
call. They soon discovered he had an outstanding misdemeanor warrant.
The officers arrested Moreno and took him to a police station for booking.
After an officer removed Moreno’s handcuffs to fingerprint him, Moreno
pulled his arm away from the officer and began yelling and running around
the room. When the officers caught Moreno, he kicked and fought with
them until they eventually subdued him.

¶3 Based on the incident at the police station, the State charged
Moreno with aggravated assault, a class five felony offense, and resisting
arrest, a class six felony offense. After a four-day trial, a jury convicted him
of resisting arrest but acquitted him of aggravated assault. The jury also
found Moreno committed the offense while on felony release. The court
sentenced Moreno as a category three repetitive offender to a total of 5.75
years’ imprisonment, after adding two years to his sentence under § 13-
708(D) because he was on felony release. We have jurisdiction over
Moreno’s timely appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(4).

ANALYSIS

¶4 In pertinent part, § 13-708(D) provides:

A person who is convicted of committing any felony
offense that is committed while the person is released on bond

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 STATE v. TORRES MORENO
Opinion of the Court

or on the person’s own recognizance on a separate felony
offense . . . shall be sentenced to a term of imprisonment two
years longer than would otherwise be imposed for the felony
offense committed while on release.

The legislature enacted this sentencing enhancement “to increase the
punishment for breaching the conditions of release by committing a felony
offense.” State v. Mount, 149 Ariz. 394, 395-96 (App. 1986); see also Ariz. R.
Crim. P. 7.3(a)(2) (directing the trial court to order a defendant not to
commit any criminal offense as a condition of release).

¶5 Moreno argues the trial court improperly increased his
resisting-arrest sentence based on his felony-release status because he was
in police custody when he resisted arrest, meaning he was not “released on
bond” as § 13-708(D) requires. We review de novo issues of statutory
interpretation. State v. Peek, 219 Ariz. 182, 183, ¶ 6 (2008).

¶6 When interpreting a statute, our goal is to determine and give
effect to the legislature’s intent. See id. at 184, ¶ 11. We look first to the text
of the statute because its plain language gives the best indication of that
intent. See id. “When the language of the statute is clear and unambiguous,
we need look no further to ascertain the legislative intent.” Id. (citing State
v. Getz, 189 Ariz. 561, 563 (1997); State v. Christian, 205 Ariz. 64, 66, ¶ 6
(2003)). “Ambiguity occurs when uncertainty exists about the meaning or
interpretation of a provision’s terms.” Heath v. Kiger, 217 Ariz. 492, 494, ¶ 6
(2008) (citing Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268 (1994)).

¶7 We discern no ambiguity in the plain language of § 13-708(D).
See Peek, 219 Ariz. at 184, ¶ 11; Heath, 217 Ariz. at 494, ¶ 6. Under the
statute’s explicit terms, the two-year sentencing enhancement applies to
any defendant who commits a felony offense after he or she has been
released pending trial on a separate felony charge. See A.R.S. § 13-708(D);
see also Ariz. R. Crim. P. 7.2(a) (granting trial court discretion to set bail or
to release a defendant on his or her own recognizance pending and during
trial). The statute imposes no further requirements and creates no
exceptions. See A.R.S. § 13-708(D).

¶8 Here, there is no dispute Moreno (1) had been conditionally
released on bond pending trial on felony offenses, (2) was arrested on an
unrelated warrant, and (3) was later convicted of a post-arrest felony
offense. His circumstances satisfied the express conditions of § 13-708(D).

¶9 Moreno nonetheless asserts, without citing legal authority,
that his conditional release on the prior charges ended when he was

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 STATE v. TORRES MORENO
Opinion of the Court

arrested on the unrelated warrant because § 13-708(D) only “covers the time
a ‘released’ individual spends among free society.” Moreno’s argument is
contrary to law and the facts of this case.

¶10 Arizona Rule of Criminal Procedure 7 governs release rights,
conditions, and procedures. After releasing a defendant, the trial court
retains authority to modify the release conditions “[o]n motion or on its
own.” Ariz. R. Crim. P. 7.4(c)(1). The court may also modify or revoke a
defendant’s release if it finds the defendant violated a release condition. See
Ariz. R. Crim. P. 7.5(d). Indeed, Moreno’s release order explained these
procedures. Nothing in Rule 7, however, provides that a subsequent arrest
on an unrelated charge revokes or modifies a defendant’s conditional
release, at least without a further order from the trial court.

¶11 Contrary to Moreno’s proffered interpretation, the phrase
“released on bond or on the person’s own recognizance” in § 13-708(D)
refers to a “[b]efore conviction” release pursuant to a court’s order under
Rule 7.2(a), not to the defendant’s time spent in “free society.” If the
legislature intended to limit the statute’s application as Moreno suggests, it
would have said so. See Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11 (2002)
(stating that a reviewing court assumes “the legislature has said what it
means”). Furthermore, Moreno’s argument conflicts with the statute’s
purpose to punish a “released” defendant more severely because he or she
violated the release conditions by committing a new crime. See Mount, 149
Ariz. at 395-96.

¶12 Moreno’s arrest on an unrelated warrant did not change,
much less terminate, his felony-release status in the absence of a further
order from the trial court. Accordingly, because Moreno was “released on
bond” at the time he resisted arrest, the trial court did not err by increasing
his sentence under § 13-708(D).

CONCLUSION

¶13 We affirm Moreno’s conviction and enhanced sentence.

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