State v. Porter

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DIABOLIQUE DEONTEH PORTER, Appellant.

No. 1 CA-CR 23-0157

FILED 11-21-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-114392-001
The Honorable Jo Lynn Gentry, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant

OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge David D. Weinzweig joined.
 STATE v. PORTER
Opinion of the Court

P E R K I N S, Judge:

¶1 Diabolique Porter appeals his sentences for possession of a
narcotic drug for sale and for violating the terms of his probation. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Porter committed armed robberies on August 22, 2015, and
September 1, 2015. Porter pled guilty to both armed robberies pursuant to
a plea agreement, and he was sentenced for both offenses under the same
case number. In April 2021, Porter possessed and sold fentanyl pills while
he was on probation. Police officers nearby observed Porter exchanging
cash for pills and arrested him. Porter admitted the pills were his and that
he intended to sell them.

¶3 A jury convicted Porter of possession of a narcotic drug for
sale. The court held a bench trial to determine Porter’s prior felony
convictions for sentencing purposes. The State called Porter’s probation
officer as a witness. The probation officer testified that Porter had been
convicted of two separate armed robberies in 2015 that were tried and
sentenced under the same case number. The State also presented the
sentencing minute entry which identified that Porter committed one armed
robbery on August 22, 2015, and the other on September 1, 2015.

¶4 Porter presented no additional evidence or testimony but
countered that he had only one prior felony conviction. Dismissing the
testimony of the probation officer, Porter argued “there’s been no testimony
about whether those offenses occurred from the same occasion.”

¶5 The court found that “the State has proven beyond a
reasonable doubt that [Porter] has two historical prior felony convictions.”
The court then sentenced Porter to 15.75 years imprisonment, the
presumptive term for a category three repetitive offender. The court also
sentenced Porter to an additional three years for violating his probation.
Porter timely appealed, and we have jurisdiction. Ariz. Const. art. 6, § 9;
A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).

DISCUSSION

¶6 Porter argues that the question of whether two crimes
occurred on the same occasion can only be decided by a jury; thus, the
superior court’s determination of that question at a bench trial violated his
right to a jury trial. Because Porter did not object to the superior court’s

2
 STATE v. PORTER
Opinion of the Court

decision to decide the issue in a bench trial, we review for fundamental
error. See State v. Escalante, 245 Ariz. 135, 140–42, ¶¶ 16–21 (2018). Porter
must establish that error exists, that the error was fundamental, and that
the error was prejudicial. Id.

I. Fundamental Error

¶7 A defendant may be subjected to longer prison terms as a
category three repetitive offender than as a category two repetitive
offender. A.R.S. § 13-703(I)–(J). A category three repetitive offender has two
historical prior felony convictions; a category two repetitive offender has
one historical prior felony conviction. A.R.S. § 13-703(B)–(C). Multiple
convictions for offenses “committed on the same occasion” count as only
one conviction for the purpose of determining how many historical prior
felony convictions a defendant has. A.R.S. § 13-703(L).

¶8 To determine whether the offenses underlying a prior
conviction were committed on the same occasion, the trier of fact must
analyze the following factors: “1) time, 2) place, 3) number of victims, 4)
whether the crimes were continuous and uninterrupted, and 5) whether
they were directed to the accomplishment of a single criminal objective.”
State v. Kelly, 190 Ariz. 532, 534, ¶ 6 (1997).

¶9 The right to a jury trial extends to any finding that would
increase a person’s sentence beyond the sentence that would otherwise be
authorized from the verdict alone. See Apprendi v. New Jersey, 530 U.S. 466,
476 (2000). Excepted from this requirement is “the fact of a prior
conviction.” See id. at 490. But as the United States Supreme Court recently
clarified in Erlinger v. United States, the “same occasion” determination goes
beyond that narrow exception because it requires a court to “do more than
identify . . . previous convictions and the legal elements required to sustain
them.” 144 S. Ct. 1840, 1854 (2024).

¶10 We asked the parties for supplemental briefing on how
Erlinger impacts this case. In light of Erlinger, the State concedes error in the
superior court’s judicial determination of the “same occasion” issue rather
than a jury determination. We agree. Because the outcome of the “same
occasion” determination could enhance a defendant’s sentence, and falls
outside the Apprendi exception for “the fact of a prior conviction,” 530 U.S.
at 490, the issue should have been submitted to a jury, see Erlinger, 144 S. Ct.
at 1852. The State also concedes this error was fundamental; it insists,
however, that Porter has not established prejudice.

3
 STATE v. PORTER
Opinion of the Court

II. Prejudice

¶11 Whether fundamental error results in prejudice “depend[s]
on the nature of the error and the unique case facts.” Escalante, 245 Ariz. at
144, ¶ 29. Porter must show “that without the error, a reasonable jury could
have plausibly and intelligently” found that the armed robberies were
committed on the same occasion. See id. at ¶ 31. And we must examine “the
entire record, including the parties’ theories and arguments as well as the
trial evidence.” Id.

¶12 In his supplemental brief, Porter argues that Erlinger “altered
the landscape on which the determination of harmless error is being made.”
He suggests that Erlinger has invalidated the Arizona cases which affirmed
separateness findings for offenses occurring on different days, involving
different property, and affecting unrelated victims. See, e.g., State v. Flores, 236 Ariz. 33 (App. 2014). We see no such mandate. In fact, Erlinger held:
“Erlinger was entitled to have a jury resolve [the federal Armed Career
Criminal Act’s] occasions inquiry unanimously and beyond a reasonable
doubt, [but] we decide no more than that.” 144 S. Ct. at 1852.

¶13 Porter does not point to any evidence in the record
establishing prejudice. Instead, Porter claims he might have testified that
the two armed robberies occurred on “the same occasion in his early life,”
and that the jury could have considered that testimony. But the record
contains no evidence to support his hypothetical theory of the case, or any
evidence relevant to the factors a jury can consider when determining
whether offenses occurred on the same occasion. And a defendant’s
subjective perception that offenses occurred on the same occasion is not a
factor in determining separateness. See Flores, 236 Ariz. at 36–37, ¶¶ 10–11.

¶14 The record does include unobjected-to court documents and
the probation officer’s testimony, which establish that Porter’s prior
offenses occurred ten days apart. See id. at 36, ¶ 9 (“[W]e have found no
Arizona case concluding that offenses were committed on the same
occasion when the crimes were committed on different days, involved
different property, or had unrelated victims.”); Wooden v. United States, 595
U.S. 360, 370 (2022) (offenses committed days apart have “nearly always”
been treated “as occurring on separate occasions”). On this record, no
reasonable jury could have found that Porter’s armed robberies were
committed on the same occasion. Porter has not shown prejudice.

4
 STATE v. PORTER
Opinion of the Court

CONCLUSION

¶15 We affirm Porter’s convictions and sentences.

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

5