Author: LegalEase Solutions

BACKGROUND FACTS

Client was arrested for Aggravated Domestic Violence (A.R.S. 13-3601.02) from a November 2013 incident. Days later, a court order of protection was issued where he was not to have any contact with the victim. In December 2013 he sent two letters to the victim. Based on the two letters he was charged and convicted in February 2014 in Yuma City (Municipal) Court of misdemeanor failing to comply with court order (DV) and later convicted of a class 5 felony in May 2014 in Yuma County Superior Court of Aggravated Domestic Violence based on those same letters.

QUESTIONS PRESENTED

1. Does the Client have a Double Jeopardy claim?

2. If Client wins on a Double Jeopardy theory, can he have the time he was credited on that (2014) sentence applied to his 2013 sentence?

SHORT ANSWERS

1. Hughes does not have a double jeopardy claim because per the same-elements test, each offense contains an element not contained in the other.

2. The client may not have the time he was credited on that (2014) sentence applied to his 2013 sentence considering that a criminal defendant is not entitled to receive compounded credit time when consecutive sentences are imposed.

RESEARCH FINDINGS

Double Jeopardy

The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. State v. Ortega, 220 Ariz. 320, 323, 206 P.3d 769, 772 (App. 2008) (citing Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App.2006); see also U.S. Const. amend. V, Ariz. Const. art. II, § 10). “Multiplicitous charges alone do not violate double jeopardy; only resulting multiple convictions or punishments are prohibited.” Id. (citing Merlina v. Jejna, 208 Ariz. 1, ¶ 14, 90 P.3d 202, 205 (App.2004)).

Generally, “[t]he double jeopardy clause has been interpreted to provide three types of protection: (1) against a second prosecution for the same offense after an acquittal; (2) against a second prosecution for the same offense after conviction; and (3) against multiple punishments for the same offense.” Fitzgerald v. Superior Court In & For County of Maricopa, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). “In the area of multiple prosecutions, the United States Supreme Court has adopted several tests to determine when double jeopardy occurs.” Id. “First, if the offenses in two prosecutions have identical statutory elements or if one is a lesser included offense of the other, the second prosecution will be barred by reason of double jeopardy.” Id. (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).

“In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies.” United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Brown v. Ohio, 432 U.S. 161, 168–169 (1977); Blockburger v. United States, 284 U.S. 299, 304 (1932) (multiple punishment); Gavieres v. United States, 220 U.S. 338, 342 (1911) (successive prosecutions)). “The same-elements test, sometimes referred to as the “Blockburger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.” Id. Further, “‘[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’” State v. Ortega, 220 Ariz. 320, 323-24, 206 P.3d 769, 772-73 (App. 2008) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). For example, when “the contempt prosecution was for disruption of judicial business, the same-elements test would not bar subsequent prosecution for the criminal assault that was part of the disruption, because the contempt offense did not require the element of criminal conduct, and the criminal offense did not require the element of disrupting judicial business.” Id. at 696-97 (citing State v. Yancy, 4 N.C. 133 (1814)).

“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). In the context of subsequent prosecution it has been noted that, “[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other.” United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556 (1993) (quoting Gavieres v. United States, 220 U.S. 338, 345(1911)). Furthermore, “[i]n determining whether offenses are the “same” for purposes of double jeopardy analysis, we look to the elements of the offenses and not to the particular facts that will be used to prove them.” State v. Ortega, 220 Ariz. 320, 324, 206 P.3d 769, 773 (App. 2008) (citing State v. Price, 218 Ariz. 311, ¶ 5, 183 P.3d 1279, 1281 (App.2008)).

Aggravated Domestic Violence

“[A] person is guilty of aggravated domestic violence if the person within a period of sixty months commits a third or subsequent violation of a domestic violence offense.” State v. Newnom, 208 Ariz. 507, 508, 95 P.3d 950, 950 (App. 2004). Thus, “[u]nder § 13–3601.02 the existence of two or more prior convictions for domestic violence is an element of the offense of aggravated domestic violence.” Id. at 951.

Failure to Comply with Court Order

A.R.S. § 13-2810 provides in pertinent part that:

1. A person commits interfering with judicial proceedings if such person knowingly:

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2. Disobeys or resists the lawful order, process or other mandate of a court;

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1. Interfering with judicial proceedings is a class 1 misdemeanor.

A.R.S. § 13-2810.

Further, it has been provided:

Contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and contempts committed by failure to obey a lawful writ, process, order, judgment of the court, and all other contempts not specifically embraced within this article may be punished in conformity to the practice and usage of the common law.

A.R.S. § 12-864.

Generally, “‘[a]n adjudication of contempt must be based on specific facts found which show knowledge of the order, ability to comply with it, and contumacious conduct on the part of the accused amounting to wilful violation.’” State v. Deddens, 112 Ariz. 425, 431, 542 P.2d 1124, 1130 (1975) (quoting Ellison v. Mummert, 105 Ariz. 46, 46, 459 P.2d 306, 306 (1969).  “The purpose of an order of protection is to protect the order of protection plaintiff (“OOPP”) from contact by an order of protection defendant (“OOPD”) who may commit an act of domestic violence or has committed an act of domestic violence within the past year.” Douglass v. State, 219 Ariz. 152, 153-54, 195 P.3d 189, 190 (App. 2008). “When an OOPD engages in contact prohibited by the order of protection, the OOPP is a “victim” as defined by the victim’s bill of rights.” Id.

It has been held that “[a] person commits interfering with judicial proceedings if such person knowingly . . . [d]isobeys or resists the lawful order, process or other mandate of a court . . . .” State v. Woolbright, 1 CA-CR 12-0680, 2014 WL 465655, at *2 (Ariz. Ct. App. Feb. 4, 2014) (quoting A.R.S. § 13–2810(A)(2)). Section 13–105(10)(b) provides:

“Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person’s conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.

A.R.S. § 13–105(10)(b).

Entitlement of time credited on one sentence applied to his other sentence

A.R.S. § 13–709 reads in part:

1. A sentence of imprisonment commences when sentence is imposed if the defendant is in custody or surrenders into custody at that time. Otherwise it commences when the defendant becomes actually in custody.
2. All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter.

1. If a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence.

State v. Cuen, 158 Ariz. 86, 87-88, 761 P.2d 160, 161-62 (App. 1988).

“The underlying constitutional rationale behind A.R.S. § 13–709, giving credit for presentence incarceration, is based upon equal protection . . . .” Id. at 162.  “[A] defendant, as a matter of equal protection, must be credited with presentence jail time when such time, if added to the maximum sentence imposed, will exceed the maximum statutory sentence.” Id. “However, once this requirement has been satisfied through the granting of a presentence incarceration credit, there is no additional constitutional purpose to be served by granting a second or “double credit” against a later consecutive sentence.” Id. (citing State v. Salazar, 24 Ariz.App. 472, 476, 539 P.2d 946, 950 (1975)).

Further, the legislature, in “enacting A.R.S. § 13–709(C), which requires a credit for time served pursuant to a vacated sentence, could not have intended that such a credit be given twice merely because separate consecutive sentences were imposed on different dates as the appropriate resentencing and new trials came to their chronological conclusions.” Id. “While no prior case discusses the legislative intent behind A.R.S. § 13–709(C), the cases are unanimous in denying double credit against consecutive sentences under A.R.S. § 13–709(B) . . . .” Id. “We do not believe, however, that the legislature intended that a criminal defendant would receive compounded credit time when consecutive sentences are imposed. Thus, we conclude that A.R.S. § 13–709(B) does not require that presentence incarceration credit must be given on each consecutive sentence imposed.” Id.

CONCLUSIONS

From the foregoing it can be understood that the client does not have a double jeopardy claim because the elements of the two offenses on which he is convicted have different elements. The main elements of aggravated domestic violence are that the defendant has been convicted of two or more domestic violence offenses, and the prior domestic violence convictions occurred within sixty months of the date of the current offense. Whereas failure comply with a court order requires a showing of knowledge of the order, ability to comply with it, and conduct on the part of the accused amounting to willful violation of the Order.

It is clear that no double jeopardy exists and therefore, the question of time credit is not relevant. However, with regard to time credits, if a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the law provides that, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence. Further, no Arizona case discusses the legislative intent behind A.R.S. § 13–709(C). Moreover, there is no case law discussing application of time credits of one vacated sentence to apply to another case. However, all the cases are unanimous in denying double credit against consecutive sentences.