State v. Simmons

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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. CURTIS GRAYLIN SIMMONS, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 05/17/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0180 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-005426-029 DT The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals Section/Capital Litigation Division Adriana M. Zick, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant J O H N S E N, Judge Phoenix ¶1 or Curtis Graylin Simmons appeals his convictions of sale transfer of narcotic drugs and conspiracy, felonies, and the resulting sentences. both Class 2 We affirm. FACTS AND PROCEDURAL HISTORY ¶2 After a three-day trial, a jury found Simmons guilty of one count of conspiracy and one count of sale or transfer of narcotic drugs. 1 sentencing hearing, The superior then found court Simmons heard had evidence 11 prior at the felony convictions, which it concluded constituted the two or more prior felony convictions required to bring Simmons within the enhanced sentencing range of Arizona Revised Statutes ( A.R.S. ) section 13-703(J) (West 2012). 2 The court further found that one of the prior felonies constituted an aggravating circumstance. The court then continued: Having made that determination, I believe I am free to consider other aggravating circumstances in the matter that were not necessarily determined by the jury . . . . In so doing I find based upon the evidence presented at trial, find beyond a reasonable doubt that these matters with respect to both counts involve the presence 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Simmons. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 Absent material revisions after the date offense, we cite a statute s current version. 2 of an alleged of an accomplice, pecuniary gain. and were committed for Finding Simmons s health issues to be mitigating circumstances, the superior court sentenced him to aggravated terms of 20 years imprisonment on each count, to be served concurrently. ¶3 Simmons timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033 (West 2012). DISCUSSION ¶4 Simmons contends the superior court erred by imposing aggravated sentences based on its own findings of presence of an accomplice circumstances. and for pecuniary gain as aggravating As Simmons did not object at trial, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail, Simmons must show that fundamental error occurred and that he was prejudiced as a result. ¶5 Id. at ¶ 20. The Sixth Amendment requires that [o]ther 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. State v. Price, 217 Ariz. 182, 184, ¶ 8, 171 P.3d 1223, 1225 (2007) (alteration in original) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Absent any additional findings, the 3 statutory presumptive sentence purposes of Apprendi analysis. is the maximum term for See State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 115 P.3d 618, 623 (2005); see also Blakely v. Washington, 542 U.S. 296, 303-04 (2004). ¶6 The presumptive sentence for a Class 2 felony with two or more historical prior felony convictions is 15.75 years. A.R.S. § 13-703(C), (J). See Accordingly, for the superior court to impose sentences on Simmons beyond the presumptive 15.75 years, at least one aggravating circumstance defined by A.R.S. § 13701(D) must be found. (K) (West 2012). A.R.S. §§ 13-701(C), (D), -703(G), (J), With the sole exception of a prior felony conviction and absent a stipulation by the defendant, the jury must find the existence of an aggravating circumstance beyond a reasonable doubt. at 1226. felony See Price, 217 Ariz. at 185, ¶ 10, 171 P.3d Either the court or the jury may determine a prior conviction to be an aggravating circumstance. Id.; A.R.S. § 13-701(D). ¶7 The superior court in this case properly found as an aggravating circumstance that Simmons had been previously convicted of a felony within the ten years immediately preceding the date of the offense. See A.R.S. § 13-701(D)(11). does not contest this finding. Simmons As noted, the court also cited, as a basis for its decision to impose aggravated sentences, its finding of two additional aggravating circumstances, presence of 4 an accomplice and commission for pecuniary gain. On appeal, Simmons argues the court lacked the power to find these two additional aggravating circumstances. ¶8 The superior court plainly did not violate Simmons s Sixth Amendment circumstances. rights Once by finding any single the additional aggravating aggravating circumstance is found pursuant to A.R.S. § 13-701(D), the constitution permits the court to find and consider additional circumstances in making its sentencing decision. aggravating See State v. Burdick, 211 Ariz. 583, 586, ¶ 13, 125 P.3d 1039, 1042 (App. 2005) (citing Martinez, 210 Ariz. at 585, ¶ 26, 115 P.3d at 625) ( one Blakely-compliant or Blakely-exempt factor is enough to allow the trial court to consider other aggravating factors in sentencing the properly found defendant ). a prior Thus, once conviction the as superior an court aggravating circumstance, the constitution permitted the court to determine additional aggravating circumstances. ¶9 not Simmons argues, however, that A.R.S. § 13-701(F) did permit the superior aggravating circumstances. fact finds at least one court to determine the additional The statute states, If the trier of aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. Id. It further defines trier of fact to mean a jury, unless the defendant and the state waive 5 a jury in which case the trier of fact means the court. 701(J). § 13- Simmons contends that because the jury, as the trier of fact, did not find any aggravating circumstances, the superior court lacked the power pursuant to § 13-701(F) to determine any aggravating circumstances other than a prior conviction. ¶10 Under Simmons s argument, § 13-701 would forbid the superior court from exercising a sentencing granted it by the United States Constitution. authority, nor proposition have that we by been able enacting to power otherwise Simmons offers no any, amending and find the for the relevant sentencing statutes, the Arizona Legislature intended to grant greater protection to defendants in sentencing than that granted by the constitution, as set out in Apprendi and Blakely. See Senate Fact Sheet, S.B. 1050, 47th Leg., 2d Reg. Sess. (Jan. 6, 2006); Final Amended Senate Fact Sheet, H.B. 2522/S.B. 1093, 47th Leg., 1st Reg. Sess. (Apr. 12, 2005). ¶11 We do not have Simmons s appeal, however. once a factor, jury a implicitly defendant is or to decide the issue Ariz. at 584, ¶ explicitly exposed 21, resolve Under Arizona s sentencing scheme, to a finds one sentencing extends to the maximum punishment available . . . . 210 to 115 P.3d at 624. In aggravating range that Martinez, this case, commission for pecuniary gain was implicit in the jury verdicts finding Simmons guilty of the sale or transfer of a narcotic 6 drug and conspiracy to commit the sale or transfer of a narcotic drug. Thus, even under Simmons s interpretation of § 13-701(F), because the jury implicitly found the aggravating circumstance that Simmons superior court committed had the his crimes power to for find pecuniary the third gain, the aggravating circumstance, presence of an accomplice. ¶12 Simmons does not argue that insufficient evidence existed to establish any of the three aggravating circumstances the court relied on in sentencing him. Accordingly, because the aggravating circumstances were determined in compliance with the constitution and Arizona law, the superior court did not err in sentencing Simmons. CONCLUSION ¶13 For the foregoing reasons, we affirm the convictions and sentences. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge 7

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