State v. McCrae

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JOSEPH EMMANUEL MCCRAE, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-0920 DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2005-108364-001 DT The Honorable Edward O. Burke, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Katia Mehu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Joseph Emmanuel McCrae appeals his aggravated robbery and aggravated assault. and a remand for resentencing, the superior sentences for After two appeals court imposed a presumptive sentence of 11.25 years on each offense. On appeal, McCrae argues these sentences violated his constitutional due process rights prosecutorial because they were vindictiveness. the For result the of judicial following and reasons, we disagree and affirm McCrae s sentences. FACTS AND PROCEDURAL BACKGROUND ¶2 The facts of this case are described in this court s memorandum decision, State v. McCrae, 1 CA-CR 07-0340, 2008 WL 2583515 (Ariz. App. June 24, 2008) (mem. decision). found McCrae guilty of aggravated robbery and A jury aggravated assault, and pursuant to a stipulation reached by the State and defense counsel, the superior court sentenced him to two concurrent supermitigated 7.5 year sentences ( first sentence ). McCrae appealed, and this court reversed his convictions and sentences and remanded for a new trial because he faced a maximum sentence of over 30 years, but was tried before only eight jurors. See State v. McCrae, 1 CA-CR 05-1141 (Ariz. App. Oct. 17, 2006) (mem. decision). ¶3 guilty On remand, a properly constituted jury found McCrae on both counts. The State did stipulation and instead asked the court presumptive 11.25 year sentence on sentencing hearing, the superior court each not reoffer the to impose the At the count. judge (who had also presided over the first trial and imposed the first sentence) 2 agreed with the State and sentenced McCrae to two concurrent 11.25 year sentences ( second sentence ). McCrae again appealed, and this court affirmed his convictions but remanded for resentencing because the second sentence was greater than the first sentence and the State had failed to overcome the presumption reasons. ¶4 of prosecutorial vindictiveness with affirmative See McCrae, 1 CA-CR 07-0340, at *3, ¶ 17. On October 24, 2008, the same superior court judge again sentenced ( third McCrae sentence ). to At two the concurrent sentencing 11.25 year terms hearing, the State provided reasons for the increased sentence and the court found the State had sufficiently vindictiveness. The court rebutted also the explained presumption its reasons of for imposing the presumptive sentence on each count. ¶5 McCrae timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), and 13-4031 and -4033 (2010). DISCUSSION ¶6 Judicial vindictiveness is presumed whenever a judge imposes a more severe sentence upon a defendant after a new trial, and the reasons affirmatively appear. for the enhancement do not North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. 2072, 2081, 23 L. Ed. 2d 656 (1969); see also 3 Wasman v. United States, 468 U.S. 559, 572, 104 S. Ct. 3217, 3225, 82 L. Ed. 2d 424 (1984); State v. Thomas, 142 Ariz. 201, 203, 688 P.2d 1093, 1095 (App. 1984). the Pearce presumption in Alabama The Supreme Court limited v. Smith, explaining the presumption is appropriate only in circumstances in which there is a reasonable likelihood that the increase in sentence is the product sentencing of actual vindictiveness authority. likelihood, the on the part Where actual vindictiveness. is no remains burden there such upon the defendant of the reasonable to prove 490 U.S. 794, 799-800, 109 S. Ct. 2201, 2205, 104 L. Ed. 2d 865 (1989) (internal citations omitted). ¶7 Once objective the presumption information concerning part of the defendant. 2081. Since arises, Pearce, it is identifiable rebuttable conduct with on the Pearce, 395 U.S. at 726, 89 S. Ct. at the Supreme Court has clarified this objective information is not limited to the defendant s conduct occurring after proceeding, id., the but time of can also the original include sentencing any objective information . . . justifying the increased sentence. Texas v. McCullough, 475 U.S. 134, 142, 106 S. Ct. 976, 981, 89 L. Ed. 2d 104 (1986) (quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 2489, 73 L. Ed. 2d 74 (1982)); see also Nulph v. Cook, 333 F.3d 1052, 1059 n.3 (9th Cir. 2003). The Arizona Supreme limited Court codified the Pearce 4 presumption as by Alabama v. Smith in Arizona Rule of Criminal Procedure 26.14(1) and (3). 1 ¶8 Prosecutorial vindictiveness: the vindictiveness rebuttable is similar presumption in to judicial Pearce also applies when the prosecutor argues for a harsher sentence on remand. 2 See Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S. Ct. 2098, 2102-03, 40 L. Ed. 2d 628 (1974); State v. Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App. 1997). We review a superior court s disposition of a claim of prosecutorial vindictiveness for an abuse of discretion, id., and we review the decision of a superior court to impose a harsher sentence after remand for sufficiency of the evidence. See State v. Smith, 162 Ariz. 123, 126, 781 P.2d 601, 604 (App. 1989). ¶9 Here, the State advanced objective information concerning McCrae s criminal record and the circumstances of his 1 When a sentence has been set aside on appeal, the court may not impose a sentence for the same offense . . . which is more severe than the prior sentence unless (1) it concludes, on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is inappropriate . . . or (3) other circumstances exist under which there is no reasonable likelihood that the increase in the sentence is the product of actual vindictiveness by the sentencing judge. Ariz. R. Crim. P. 26.14. 2 On appeal, the State argues the presumption of prosecutorial vindictiveness is restricted to charging decisions after remand. We disagree, and note the State cites no case stating the presumption is inapplicable to a prosecutor s argument for a greater sentence on remand. Further, this argument contradicts the Pearce line of cases. 5 criminal act that warranted the presumptive term. first sentencing, the State stipulated to a At McCrae s supermitigated sentence because the victim did not want to see [McCrae] go to prison for sentencing, 11 years the or State possibly argued more. the At first the third sentence was inappropriate because [t]here [were] aggravating factors, in addition to McCrae s two prior felony convictions that support the presumptive term, such as an additional prior felony, the age of the victim, the presence of an accomplice, and the offense was done the explanation, rebutted Contrary objective part of the to for pecuniary court found presumption McCrae s the not sentencing proceeding. For of similar needed limited gain. State and as by either of had to to rebut We this agree. above, conduct the conduct on sufficiently discussed identifiable on the the presumption after the of original See Ariz. R. Crim. P. 26.14(3). reasons, the court harsher sentence out of vindictiveness. upset Based vindictiveness. concerning defendant is the assertion information vindictiveness ¶10 a Mr. McCrae s did not impose a It stated it was not appeals, and at the first sentencing, it fully intended to . . . follow the presentence report and impose the presumptive sentence because of . . . the severity of the acts and the disregard for [the victim s] life 6 and/or well-being. Regarding the first sentencing, the court stated, I was astonished when defense counsel and the prosecutor told me they reached a deal for the supermitigated sentence. At that time I didn t realize that I didn t have to accept that deal. . . . So it wasn t that I approved that sentence. I was kind of dragged into that sentence against my will and I very reluctantly, but without comment, applied the sentence that had been stipulated to. 3 ¶11 The court then explained, the presumptive sentence is more than warranted in this case because of the severity of the crime, McCrae s previous violation of probation, his previous felony convictions, including an assault and property crime, and the presentence report assessment he was a risk to the community s safety and the likelihood that [he] would reoffend is high. ¶12 Although imposing the sentencing, the third the information sentence superior was court the court available judge did not relied at on the rely on in first this objective information in imposing the first sentence because he believed -- incorrectly -- he was bound by the sentencing stipulation. At the third sentencing, 3 however, the court The court expressed skepticism at the first sentencing when the State described the stipulation, asking the prosecutor, Tell me why the state was agreeing to that if the victim was hurt so badly, Mr. Rhude, and you went though all the trouble to have the trial in this case? 7 concluded and his the circumstances criminal justified the circumstances, record surrounding made presumptive the him a danger term. presumptions of McCrae s Under both criminal to act society and these unique prosecutorial and judicial vindictiveness were rebutted because the explanations by the State and the superior court judge reflected objective reasons justifying McCrae s increased sentences. CONCLUSION ¶13 For the foregoing reasons, we affirm McCrae s sentences. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ _________________________ DANIEL A. BARKER, Judge /s/ _________________________ PETER B. SWANN, Judge 8

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