STATE OF ARIZONA v. MELVIN EMERSON RIVERA
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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. MELVIN EMERSON RIVERA, Appellant. No. 2 CA-CR 2015-0265 Filed May 16, 2016 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County No. S1100CR201300990 The Honorable Bradley M. Soos, Judge AFFIRMED COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant STATE v. RIVERA Decision of the Court MEMORANDUM DECISION Judge Espinosa authored the decision of the Court, in which Presiding Judge Howard and Judge Staring concurred. E S P I N O S A, Judge: ¶1 After a jury trial, Melvin Rivera was convicted of sexual assault pursuant to A.R.S. § 13-1406(A). The trial court sentenced him to a presumptive, seven-year prison term pursuant to § 131406(B). No aggravating factors were presented to the jury. In imposing the presumptive seven-year prison term, however, the court found one aggravating factor—harm to the victim—and one mitigating factor—that Rivera had no criminal history. On appeal, Rivera contends he is entitled to resentencing because the aggravating factor was not found by the jury.1 We affirm. ¶2 Rivera argues that, pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), 1 Rivera did not raise this argument below, and the state asserts we should review his claims for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (“defendant who fails to object at trial forfeits the right to obtain appellate relief” unless defendant shows fundamental, prejudicial error). The trial court imposed sentence immediately after finding the aggravating factor and, thus, whether Rivera was required to object to preserve this issue could be subject to this court’s analysis in State v. Vermuele, 226 Ariz. 399, ¶ 6, 249 P.3d 1099, 1101 (App. 2011) (defendant did not waive ordinary appellate review by failing to object during or following imposition of sentence). However, because we find no error, fundamental or otherwise, we need not decide whether Rivera forfeited his rights as contemplated in Henderson or whether Vermuele applies. 2 STATE v. RIVERA Decision of the Court “it was incumbent upon the state to prove any aggravating factors prior to sentencing” and that “it was improper for the [trial] court to find an aggravating factor of its own accord.” Thus, he concludes, because the court also found a mitigating factor, he is entitled to be resentenced to a prison term less than the presumptive term. ¶3 We rejected a similar argument in State v. Johnson, 210 Ariz. 438, 111 P.3d 1038 (App. 2005). As we explained in that case, Blakely and Apprendi require a jury to find any fact other than a prior conviction that increases the penalty for a crime above the statutory maximum. Johnson, 210 Ariz. 438, ¶ 9, 111 P.3d at 1040-41. The statutory maximum is the presumptive term. Id. ¶ 10. However, if the trial court imposes a sentence no greater than the presumptive term, it may find and consider aggravating factors not found by a jury, even if the aggravating factor “played an essential role in the punishment the trial court chose.” Id. ¶¶ 10-12; cf. State v. Olmstead, 213 Ariz. 534, ¶ 6, 145 P.3d 631, 632 (App. 2006) (trial court not required to make sentencing decision based on “‘mere numbers of aggravating or mitigating circumstances’” but instead has “broad discretion to decide if the mitigating factors were sufficient to justify a mitigated sentence”), quoting State v. Willcoxson, 156 Ariz. 343, 347, 751 P.2d 1385, 1389 (App. 1987). Thus, because the court in this case imposed the presumptive term, it was entitled to find and consider aggravating factors, and no violation of Blakely and Apprendi occurred. ¶4 Rivera’s conviction and sentence are affirmed. 3
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