State v. Stokes

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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. ) ) ) DAVID LEON STOKES, II, ) ) Appellant. ) ) DIVISION ONE FILED: 04-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0453 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 1999-007812 The Honorable Rosa Mroz, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 David Leon Stokes, II ( Appellant ), appeals from his sentences for one count of attempted kidnapping and one count of attempted robbery, both class three dangerous and repetitive felonies. Appellant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the record on appeal he finds no arguable question of law. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 738. 386 U.S. This court afforded Appellant the opportunity to file a supplemental brief in propria persona, but he did not do so. Counsel now asks this court to search the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). After reviewing the entire record, we affirm Appellant s sentences. FACTS AND PROCEDURAL BACKGROUND ¶2 attempted On November 16, 1999, a jury found Appellant guilty of kidnapping and attempted armed robbery, both class three dangerous offenses. After trial to the court concerning Appellant s convictions, prior felony the court determined Appellant had previously been convicted of three felonies. The court sentenced Appellant as a repetitive nondangerous offender, found additional aggravating factors, 1 and imposed concurrent, super-aggravated sentences of twenty five years on each count. 1 The court found three aggravating factors: (1) physical emotional harm to the victim; (2) Appellant was convicted felonies within ten years immediately preceding the date of offense; and (3) Appellant s 1981 convictions for kidnapping 2 and of the and ¶3 This sentences. July 20, District habeas court s court affirmed Appellant s convictions and See State v. Stokes, 1 CA-CR 99-1040 (Ariz. App. 2000) Court corpus (mem. for the relief, sentencing decision). After District the of Ninth decision in the Arizona Circuit part United denied affirmed and States Appellant the trial in part, reversed determining (1) the sentencing court did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), by disregarding the jury s dangerousness finding in opting to sentence Appellant under the repeat offender statute with a longer maximum sentence than the dangerousness offender statute; and (2) the sentencing court violated Apprendi by finding aggravating circumstances not found by the jury and using them to enhance Appellant s sentence above the statutory maximum of twenty years. 465 F.3d 397, 404 (9th Cir. 2006). this matter for resentencing. ¶4 See Stokes v. Schriro, The Ninth Circuit remanded Id. At resentencing, the court found three prior felony convictions were proved at the original sentencing hearing. It considered two of the prior convictions for sentence enhancement purposes and the third as the sole aggravating factor. The court sentenced Appellant to an aggravated term of twenty years aggravated offenses. assault were strikingly 3 similar to the instant on each count to run concurrently, with 3457 days of presentence incarceration credit. ¶5 Appellant filed a delayed notice of appeal in this matter. 2 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) section 12-120.21 (2003). ANALYSIS ¶6 Appellant s counsel raises two issues at Appellant s request, which we review in turn. novo. We review questions of law de Arizona Water Co. v. Arizona Corp. Comm n, 217 Ariz. 652, 655, ¶ 10, 177 P.3d 1224, 1227 (App. 2008). ¶7 violated Appellant his Constitution first Sixth by argues Amendment failing to that rights submit prior conviction, to the jury. the the sentencing under the aggravating We disagree. court Federal factor, a In Apprendi, the Supreme Court of the United States held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. U.S. at 490. Apprendi, 530 The only aggravating factor that the sentencing court considered was a prior conviction, and, under Apprendi, 2 Appellant s notice of appeal was filed one day late, at which point he filed a Rule 32 petition for post-conviction relief requesting a delayed appeal. This petition was granted and Appellant filed a timely delayed notice of appeal. 4 prior convictions are excluded from the requirement that sentencing court aggravating factors be submitted to a jury. ¶8 Second, Appellant argues that the erred by using his three prior convictions duplicatively two as enhancement factors and the third as an aggravating factor. Again, we disagree. [D]ouble punishment principles do not preclude the trial court from using prior convictions to impose an enhanced sentence under the recidivist statute, . . . and to find aggravating circumstances[.] State v. Ritacca, 169 Ariz. 401, 403, 819 P.2d 987, 989 (App. 1991) (citing former versions of A.R.S. §§ 13-604 and 13-702); State v. LeMaster, 137 Ariz. 159, 166, 669 P.2d 592, 599 (App. 1983). not err in its treatment of The trial court did Appellant s prior felony convictions. ¶9 Further, we have reviewed reversible error and find none. the entire record for See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The sentences was were within the statutory limits. Appellant represented by counsel and was offered the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. 5 CONCLUSION ¶10 this We affirm Appellant s sentences. After the filing of decision, defense counsel s obligations pertaining Appellant s representation in this appeal have ended. to Counsel need do no more than inform Appellant of the status of the appeal and reveals an of his issue future options, appropriate Arizona Supreme Court. for unless petition counsel s for review review to the See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. _____________/S/_____________ LAWRENCE F. WINTHROP, Judge CONCURRING: _______________/S/_____________ PETER B. SWANN, Presiding Judge ______________/S/______________ MICHAEL J. BROWN, Judge 6

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