State v. Aldana

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee/Cross-Appellant,

v.

LUIS ALDANA, Appellant/Cross-Appellee.

No. 1 CA-CR 20-0134
1 CA-CR 20-0365
(Consolidated)
FILED 8-12-2021

Appeal from the Superior Court in Maricopa County
No. CR2017-110517-001
The Honorable Laura M. Reckart, Judge

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael O’Toole
Counsel for Appellee/Cross-Appellant

Maricopa County Public Defender's Office, Phoenix
By Robert W. Doyle
Counsel for Appellant/Cross-Appellee
 STATE v. ALDANA
Opinion of the Court

OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

HOWE, Judge:

¶1 Luis Aldana appeals his convictions and sentences for
attempted second-degree murder, aggravated assault, drive-by shooting,
and misconduct involving weapons. He argues that the court erred by not
suppressing statements he made during a police interview, which he asserts
was part of a “two-stage” interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and Missouri v. Seibert, 542 U.S. 600 (2004). The State
cross-appeals from the imposed sentence, arguing that the trial court
incorrectly concluded that because Aldana was on “community
supervision” at the time of the instant offense, he was not “on release or
escape from confinement” for purposes of sentencing under A.R.S.
§ 13–708(B).

¶2 We affirm Aldana’s conviction because the police did not
engage in an improper “two-stage” interrogation. We vacate the sentences
imposed, however, and remand for resentencing. Under the plain language
of A.R.S. § 13–708, a person who is on community supervision for a prior
conviction involving a dangerous offense is on “release” subject to the
sentencing requirements of A.R.S. § 13–708(B).

BACKGROUND

¶3 An Arizona Department of Public Safety trooper conducted a
traffic stop of the SUV Aldana was driving. The trooper got out of his patrol
car and directed Aldana to roll down the SUV’s darkly-tinted windows and
show his hands. Aldana grabbed a handgun and fired several times at the
trooper. The trooper returned fire, shooting Aldana in his shoulder. Aldana
fled in the SUV.

¶4 Later that day, officers of the Phoenix Special Assignments
Unit, along with officers from other agencies, found Aldana riding in a
friend’s vehicle on his way to a hospital to treat the gunshot wound. The
officers arrested Aldana and accompanied him to a hospital. Two detectives
stayed with Aldana as he waited for surgery but did not read Aldana his

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Opinion of the Court

Miranda rights because they did not interview him. Aldana, however,
engaged in “small talk” with them and incriminated himself in the
shooting. At that point, one of the detectives began recording Aldana’s
statements. The detectives did not ask about the shooting but did ask
whether Aldana was on parole or probation.

¶5 When Aldana was released from the hospital, police took him
into custody. At the police station, Detective Ryan Dodge, who was not at
the hospital with Aldana and did not know that he had made incriminating
statements there, read him his Miranda. Aldana waived his rights and again
made incriminating statements during his interview with Detective Dodge.

¶6 The State charged Aldana with attempt to commit
second-degree murder, aggravated assault, and drive by shooting, all class
2 dangerous felonies. The State also charged him with misconduct
involving weapons, a class 4 dangerous felony, which was later severed
from the other charges and tried separately. The State alleged under A.R.S.
§ 13–708 that Aldana committed the offenses while on “probation, parole,
community supervision, and/or any other release or escape from
confinement” from a previous armed robbery conviction. The State also
alleged multiple aggravating circumstances.

¶7 Before trial, Aldana moved to suppress the statements he had
made at the hospital and during the subsequent interview with Detective
Dodge. He claimed that his statements at the hospital were inadmissible
because the officers had failed to inform him of his Miranda rights, and his
statements were otherwise involuntary. He argued that his interview
statements were inadmissible because Detective Dodge’s Miranda
advisement did not cure the constitutional violation that occurred at the
hospital.

¶8 The trial court held an evidentiary hearing and granted the
suppression motion in part and denied it in part. The court found that
Aldana’s hospital statements were inadmissible because although he had
made those statements voluntarily, he did so while subject to custodial
interrogation without being advised of his Miranda rights. The court found
admissible the statements Aldana made during his interview at the police
station, however, because Detective Dodge properly informed him of his
Miranda rights and “there was a distinction in time, place and individuals
such that there is no taint or there is no issue between those two that would
create a situation where the first failure to give [Miranda] would somehow
impact the second interview.”

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Opinion of the Court

¶9 The jury found Aldana guilty of the charged offenses and
found multiple aggravating factors for each offense. The jury also found
that Aldana was on “parole or community supervision” when he
committed the offenses. At sentencing, the State requested imposition of
maximum sentences under A.R.S. § 13–708(B) because he committed the
offenses while on community supervision for a conviction of a serious
offense. The court denied the State’s request, finding the statute did not
apply to defendants who commit offenses while on community
supervision. The court imposed concurrent aggravated prison sentences,
the longest being 23 years for the class 2 dangerous felonies. Aldana, with
the court’s permission, filed a delayed notice of appeal. The State also
timely cross-appealed.

DISCUSSION

I. The trial court did not err in denying Aldana’s motion to suppress
the statements he made to Detective Dodge.

¶10 Aldana argues that the statements he made during his
interview with Detective Dodge were inadmissible, and that the trial court
therefore erred by denying the motion to suppress them. Specifically,
Aldana contends that he was subjected to a “two-stage” interrogation
technique deemed unconstitutional in Seibert, 542 U.S. at 642 (Kennedy, J.,
concurring in judgment) (statements inadmissible if interrogators use two-
step technique to undermine Miranda warnings).1 A trial court’s ruling on
a motion to suppress a defendant’s statements is reviewed for an abuse of
discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 n. 6 (2006). In such a
review, an appellate court considers only the evidence presented at the
suppression hearing, and reviews the evidence in a light most favorable to
upholding the ruling. Id.; State v. Hyde, 186 Ariz. 252, 265 (1996). We defer
to the trial court’s factual determinations but review the court’s ultimate
legal conclusion de novo. State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118
(1996).

¶11 To comply with the Fifth Amendment’s privilege against self-
incrimination, Miranda requires the police to warn suspects who are in
custody of their rights before initiating questioning. State v. Spears, 184 Ariz.

1 As recognized in State v. Zamora, because the opinion of the United
States Supreme Court in Seibert was merely a plurality, Justice Kennedy’s
separate concurring opinion is controlling on this issue “because it is the
narrowest opinion concurring in the Court’s judgment.” 220 Ariz. 63, 70
¶ 16 (App. 2009).

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277, 286 (1996). Thus, statements an in-custody suspect makes before a
Miranda advisement are generally inadmissible, and post-advisement
statements are generally admissible. Montes, 136 Ariz. at 494. When an
in-custody suspect who has given voluntary but unwarned statements
makes additional statements after a subsequent-Miranda warning, the
additional statements ordinarily are admissible while the unwarned
statements are not. See Oregon v. Elstad, 470 U.S. 298, 314 (1985). A court
nevertheless may suppress statements made after a Miranda warning if it
finds that the police engaged in a “two-stage” interrogation process with
the intent to deliberately obtain statements in violation of Miranda. Seibert,
542 U.S. at 618-22 (Kennedy, J., concurring in judgment). This court
described an impermissible “two-stage” interrogation generally as follows:

In the first stage, police interrogate a person in custody
without having given the person his Miranda warnings and
the person has made statements in response to that
questioning. Then, in the second stage, the police give the
person his Miranda warnings, the person waives his right to
remain silent[,] and the person repeats his prior statements in
response to the police repeating the questions or lines of
questions asked prior to the Miranda warnings being given.

Zamora, 220 Ariz. at 65–66 ¶ 1 n.2.

¶12 Here, the evidence at the suppression hearing shows that the
detectives at the hospital did not deliberately obtain statements in violation
of Miranda in a coordinated attempt with Detective Dodge to obtain a
subsequently Mirandized confession at the formal interview. Cf. Seibert, 542
U.S. at 604 (defendant’s post-Miranda statement in a “two-stage”
interrogation is inadmissible where “police protocol for custodial
interrogation . . . calls for giving no [Miranda] warnings . . . until
interrogation has produced a confession”). Indeed, at the time Detective
Dodge interviewed Aldana, he was not aware of Aldana’s earlier
incriminating statements at the hospital. Accordingly, the trial court did not
abuse its discretion in finding that Aldana’s interview statements were not
the result of an improper “two-stage” interrogation.

II. The trial court erred in concluding that A.R.S. § 13–708(B) did not
apply to Aldana’s sentencing.

¶13 The State argues that the trial court erred by declining to
apply A.R.S. § 13–708(B) in sentencing Aldana because the court believed
that the statute’s reference to “release” did not include community

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supervision. “The failure to impose a sentence in conformity with
mandatory sentencing statutes makes the resulting sentence illegal.” State
v. Brock, 248 Ariz. 583, 592–93 ¶ 27 (App. 2020). Whether the trial court
correctly construed the sentencing statute is a question of law reviewed de
novo. Id. at 93 ¶ 27.

¶14 When interpreting a statute, our goal is to give effect to the
legislature’s intent. Id. at 184 ¶ 11. We look first to the language of the
statute because it is the best indication of the legislature’s intent, id., and
construe statutes that “relate to the same subject matter or have the same
general purpose as one another” as though they constitute one law, State v.
Gamez, 227 Ariz. 445, 449 ¶ 27 (App. 2011); see also Wyatt v. Wehmueller, 167
Ariz. 281, 284 (1991) (Different sections of a single statute should be
interpreted consistently.). “When the text is clear and unambiguous, we
apply the plain meaning and our inquiry ends.” State v. Burbey, 243 Ariz.
145, 146 ¶ 5 (2017).

¶15 Aldana’s release on community supervision is “release” for
purposes of A.R.S. § 13–708(B). Titled “Offenses committed while released
from confinement,” the statute provides, in relevant part:

A. A person who is convicted of any felony involving a
dangerous offense that is committed while the person is on
probation for a conviction of a felony offense or parole, work
furlough, community supervision or any other release or has
escaped from confinement for conviction of a felony offense
shall be sentenced to imprisonment for not less than the
presumptive sentence authorized under this chapter . . . .

B. A person who is convicted of a dangerous offense that is
committed while the person is on release or has escaped from
confinement for a conviction of a serious offense as defined in
§ 13–706, . . . shall be sentenced to the maximum sentence
authorized under this chapter . . . . If the court finds that at
least two substantial aggravating circumstances listed in § 13–
701, subsection D apply, the court may increase the maximum
sentence authorized under this chapter by up to twenty-five
percent.

C. A person who is convicted of any felony offense that is not
included in subsection A or B of this section and that is
committed while the person is on probation for a conviction
of a felony offense or parole, work furlough, community

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supervision or any other release or escape from confinement
for conviction of a felony offense shall be sentenced to a term
of not less than the presumptive sentence authorized for the
offense . . . .

D. A person who is convicted of committing any felony
offense that is committed while the person is released on bond
or on the person’s own recognizance on a separate felony
offense or while the person is escaped from preconviction
custody for 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.

¶16 Section 13–708’s language is clear and unambiguous.
Consistent with the title of chapter 7, subsection A lists specific forms of
release, including “community supervision,” and provides a catchall for all
release types with the phrase “or any other release.” A.R.S. § 13–708(A).
Consistent with the title of chapter 7 and subsection A, subsection B refers
generally to the catchall “release or . . .escape[] from confinement,” which
includes the specific forms of release enumerated in subsection A. A.R.S.
§ 13–708(B). While subsection A applies to defendants convicted of a
“felony involving a dangerous offense” committed while on release after
any felony conviction, subsection B applies to defendants being sentenced
for a dangerous offense committed while “on release . . . from confinement
of a serious offense.” Aldana committed the present offenses while released
from confinement to serve a term of community supervision for his
conviction for armed robbery, a serious offense. See A.R.S. § 13–706(F)(1)(h)
(armed robbery a “serious offense”); A.R.S. § 41–1604.07(E) (“A prisoner
who has reached the prisoner’s earned release date or sentence expiration
date shall be released to begin the prisoner’s term of community
supervision imposed by the court.”); A.R.S. § 13–105(5) (“‘Community
supervision’ means that portion of a felony sentence that is imposed by the
court . . . and that is served in the community after completing a period of
imprisonment . . . .”). Thus, the plain language of A.R.S. § 13–708(B) applies
to Aldana.

¶17 Aldana nonetheless argues that reading “community
supervision” into the term “release” as used in subsection B renders A.R.S.
§ 13–708(A) meaningless. To the contrary, the subsections apply to different
classes of repetitive offenders. Subsection A applies to dangerous offenders
who were on release for a non-serious felony conviction, while subsection
B applies to dangerous offenders who were on release for a serious felony
conviction.

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Opinion of the Court

¶18 Aldana also argues that, considering subsection A’s express
reference to “parole, work furlough, community supervision,” subsection
B’s reference to “on release” indicates a legislative intent that only
defendants who are on pre-trial release, not post-conviction release, are
subject to that provision’s maximum sentence requirement. Aldana
provides no authority for this argument, however, and the statute’s plain
language contradicts it. Subsection B applies only if the person “is on
release or has escaped from confinement for a conviction of a serious
offense,” which necessarily excludes pretrial release. See also State v. Barnett, 142 Ariz. 592, 596 (1984) (construing A.R.S § 13–708’s predecessor’s statute’s
language of “or any other release” to be release after a conviction). We need
go no further. State v. Brock, 248 Ariz. 583, 589 ¶ 13 (App. 2020) (“When the
text is clear and unambiguous, we apply the plain meaning and our inquiry
ends.”).

¶19 Because Aldana was under community supervision—and
thus was on release from confinement—for a conviction of a serious offense,
when he committed the dangerous offenses in this case, A.R.S. § 13–708(B)
required the trial court to sentence Aldana to at least the maximum sentence
provided. The court erred in concluding otherwise.

CONCLUSION

¶20 Aldana’s convictions are affirmed, and his sentences are
vacated. Upon remand, the trial court shall sentence Aldana pursuant to
A.R.S. § 13–708(B).

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

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