State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

RACHEL JOY BROWN, Appellee.

No. 1 CA-CR 21-0433
FILED 9-20-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-118089-001
The Honorable Anne H. Phillips, Judge, Pro Tempore

VACATED AND MODIFIED IN PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jason Lewis
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellee
 STATE v. BROWN
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 The State appeals the superior court’s order redesignating
Rachel Brown’s conviction for solicitation of organized retail theft from a
class 6 designated felony to a misdemeanor, arguing the redesignation
violates the parties’ plea agreement. For the following reasons, we vacate
and modify in part.

FACTS AND PROCEDURAL HISTORY

¶2 In 2018, the State charged Brown with trafficking in stolen
property in the first degree, a Class 2 felony (count 1) and organized retail
theft, a Class 4 felony (count 2). Brown waived her right to a preliminary
hearing and entered a plea agreement in May. Brown pled guilty to two
amended non-dangerous, non-repetitive offenses: facilitation of trafficking
in stolen property in the first degree, a Class 6 “undesignated felony” (count
1) pursuant to Arizona Revised Statutes (“A.R.S.”) § 13-604, and solicitation
of organized retail theft, labeled as a Class 6 “designated felony” (count 2),
without reference or citation to A.R.S. § 13-604.

¶3 The first paragraph of the plea’s “terms and conditions”
outlined the punishment for the offenses and contained the following
language as to count 2, with emphasis as it appears in the original:

Pursuant to A.R.S. 13-604(A), the offense in Count 2 shall be
treated as a felony for all purposes until such time as the
Court may actually enter an order designating the offense a
misdemeanor. If this offense were designated a
misdemeanor, Defendant could receive a maximum of 6
months in jail and a maximum fine of $2,500 plus the
statutory surcharge.

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Decision of the Court

¶4 In the second paragraph, the parties stipulated to “additional
terms, subject to court approval at the time of sentencing,” which included
notation that Brown be placed on supervised probation and that count 1,
solely, could not be designated as a misdemeanor unless and until Brown
successfully completed all probation terms.

¶5 The court accepted the parties’ entrance into the plea, and the
court’s minute entry reflected (1) count 1 as an undesignated felony and
listing, among other statutes, A.R.S. § 13-604 thereunder and (2) count 2 as
a designated felony, again without reference to A.R.S. § 13-604. Thereafter,
the court held a sentencing hearing in July. The court’s sentencing order
adjudicated Brown guilty of the amended offenses, suspended imposition
of sentence, and placed her on probation for three years for both counts. As
part of Brown’s probation terms, specifically outlined in Condition 22, the
court ordered that count 1 could “not be designated a misdemeanor unless
and until [Brown] successfully complete[d] probation.” Such language was
not included as part of Condition 22 for count 2. Brown did not appeal from
the sentence imposed.

¶6 In September 2021, the court discharged Brown from
probation and ordered that both counts be designated as misdemeanors.
The parties do not dispute on appeal that Brown successfully completed
probation, as found by the court. The State filed a motion to reconsider the
court’s redesignation of count 2 as a misdemeanor, arguing that doing so
was prohibited, given Brown had already pled guilty “to a designated
felony” and the plea agreement otherwise prohibited redesignation. The
court denied the State’s motion, explaining A.R.S. § 13-604(A) and
“paragraph one (underlined portion),” see supra ¶ 3, permitted such action.
The State timely appealed, and we have jurisdiction pursuant to A.R.S. §§
12-120.21(A)(1), 13-4031, and 13-4032(5).

DISCUSSION

¶7 We review the court’s order, which was based on its
interpretation of the parties’ plea agreement and a statute, de novo. See
Mejia v. Irwin, 195 Ariz. 270, 272 ¶ 12 (App. 1999); State v. Cowles, 207 Ariz.
8, 9 ¶ 3 (App. 2004).

¶8 The State contends the structure and details of the plea
agreement illustrate that inclusion of the at-issue provision—permitting
count 2 to be redesignated a misdemeanor, see supra ¶ 3—was not the
intention of the parties but rather clear “error in drafting” and thus a
mutual mistake of fact. Brown argues to the contrary, adding the plea

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Decision of the Court

agreement contains, at best, conflicting provisions, which should be held
against the State as the contract drafter. We need not, however, resolve
these arguments. The sentencing order, which Brown did not timely
challenge, makes clear that count 1 only—a class 6 undesignated felony—
could be designated a misdemeanor if Brown successfully completed
probation. See Ariz. R. Crim. P. 32.4(b)(3)(A) (defendant has 90 days from
the oral pronouncement of sentence to file a notice of claim for post-
conviction relief).

¶9 The court accepted the plea agreement in May 2018. But the
parties stipulated to “additional terms, subject to court approval at the time
of sentencing,” which included notation that Brown be placed on supervised
probation for both counts and that count 1 could not be designated as a
misdemeanor unless and until Brown successfully completed all probation
terms. (Emphasis added.) See Ariz. R. Crim. P. 17.4(a)(1) (“The parties may
negotiate and reach agreement on any aspect of a case.”). Acceptance of
such a stipulation is reflected in the court’s sentencing order, outlining the
precise terms of Browns’ probation. For count 1, Condition 22, the court
ordered this offense could “not be designated a misdemeanor unless and
until [Brown] successfully complete[d] probation.” Such language is
notably absent from the court’s order as to count 2.

¶10 The court’s sentencing order listed count 2 as a designated
felony, with no qualifying language or terms. And following the court’s
imposition of sentence, Brown never challenged the language in the court’s
sentencing order. It is too late to do so now. See Ariz. R. Crim. P.
32.4(b)(3)(A). Further, no statute grants the court discretion or authority to
redesignate a count that has already been designated a felony in derogation
of a final sentencing order. See State v. Diaz, 173 Ariz. 270, 272 (1992)
(explaining “three options” are available to the superior court under the
predecessor statute to A.R.S. § 13-604(A) when sentencing a defendant for
a non-dangerous class 6 felony, which are permitting the court to: (1)
designate the offense a felony at sentencing, (2) designate the offense a
misdemeanor if the court finds sentencing the defendant for a felony would
be unduly harsh, or (3) “leave the offense undesignated,” place the
defendant on probation, and designate the offense as either a felony or
misdemeanor after probation is completed).

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Decision of the Court

¶11 We therefore conclude the superior court exceeded its legal
authority in redesignating count 2 a misdemeanor. We vacate the portion
of the court’s order redesignating count 2 from a class 6 designated felony
to a misdemeanor. The remainder of the court’s order is otherwise affirmed.

CONCLUSION

¶12 For the foregoing reasons, we vacate and modify in part as
explained herein.

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

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