State v. Covey

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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. TODD WILLIAM COVEY, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0278 DIVISION ONE FILED: 06-22-010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200800068 The Honorable Andrew W. Gould, Judge CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART AS CORRECTED; REMANDED IN PART FOR RESENTENCING Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee Sharmila Roy Attorney for Appellant Laveen N O R R I S, Judge ¶1 sentences. Todd William Covey timely appeals his convictions and ¶2 A grand jury indicted Covey on one count each of attempted second degree murder, a class two felony; aggravated assault with a deadly weapon or dangerous instrument, a class three felony; and hindering prosecution in the first degree, a class five felony, alleging these offenses offenses ) occurred on or about May 25, 2007. (the three The State later amended the indictment to allege four prior felony convictions. 1 A jury convicted Covey of the three offenses. 2 ¶3 the After a trial on the priors, the superior court found State convictions had proven beyond a Covey s four reasonable doubt. alleged The prior felony superior court sentenced Covey as a repetitive offender to aggravated terms on each count. See Ariz. Rev. Stat. ( A.R.S. ) §§ 13-604(C), (D) (Supp. 2006) (this section (2010)) and -702(B), (C) is now (Supp. A.R.S. 2006) § (this 13-703(C), section is (J) now A.R.S. § 13-701(C), (D) (2010)). ¶4 Covey first contends the superior court improperly imposed an aggravated sentence because it did not consider Covey s prior convictions as an aggravator and considered 1 Covey was convicted of these felonies on December 28, 2004; June 21, 2001; October 30, 2000; and October 23, 2000. These crimes were committed on November 20, 2004; October 23, 2000; During the Month of August, 2000; and August 19, 2000, respectively. 2 We view the facts in the light most favorable to sustaining Covey s convictions and sentences. State v. HaightGyuro, 218 Ariz. 356, 357, ¶ 2, 186 P.3d 33, 34 (App. 2008). 2 instead the presence of an accomplice and physical and emotional harm to the victim (the additional factors ) as aggravators. Covey then argues the additional factors should have been found explicitly or implicitly by a jury beyond a reasonable doubt, and we should remand for resentencing. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We disagree. ¶5 Because Covey failed to object to his sentences in the superior court, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error goes to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the possibly have received a fair trial. defendant could not Id. (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Once a defendant shows fundamental error occurred, he must demonstrate the error caused him prejudice. Id. at 568, ¶ 26, 115 P.3d at 608. ¶6 The superior court sentenced Covey as a repetitive offender with two prior felony convictions under the enhanced sentencing provisions of A.R.S. § 13-604(C) and (D) for his three offenses; it then imposed aggravated sentences for these offenses, citing the additional 702(B), (C)(4), (C)(9). factors. See A.R.S. § 13- The superior court, however, did not 3 specify which sentences. of the felonies it used to enhance Covey s Covey s two most recent felonies, see supra note 1, would have qualified to enhance his sentence pursuant to either A.R.S. § 13-604(W)(2)(c) committed within excluding time conviction that conviction). five (class years of incarcerated) is four, or date five, of third or six present subsection defendant s or (d) more felony offense, (any felony prior felony Thus, two felonies remained to aggravate Covey s sentence beyond the presumptive term pursuant to A.R.S. § 13702(C)(11) (defendant previously convicted of felony within ten years of date of current offense). 3 ¶7 Although Covey correctly notes the superior court did not explicitly state it used the remaining felonies to aggravate his sentences above the presumptive term, the court explicitly found these priors beyond a reasonable doubt. This finding by itself exposed Covey to a penalty above the presumptive term under A.R.S. § 13-702(B) and (C)(11). This finding also permitted the superior court to find additional factors relevant to the exercise of its discretion in determining the specific sentence to impose on a defendant 3 within a given statutory We also note Covey s 2004 and 2001 convictions could be used for both sentence enhancement and aggravation purposes. See State v. Ritacca, 169 Ariz. 401, 403, 819 P.2d 987, 989 (App. 1991) (double jeopardy or double punishment principles do not preclude court from using prior convictions to impose enhanced sentence under A.R.S. § 13-604 and to find aggravating circumstances under § 13-702). 4 sentencing range by a preponderance of the evidence. State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005) (emphasis in original). Accordingly, we reject Covey s argument the jury was required to find the additional factors. 4 ¶8 imposed Covey an conviction next argues aggravated because the sentence the on additional superior his court improperly hindering prosecution factors -- use of an accomplice and harm to the victim -- did not apply to this crime. The State correctly concedes error. Covey has demonstrated prejudice by the imposition of an illegal sentence. Thus, we vacate Covey s sentence on this conviction and remand for resentencing. See State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002) (imposition of illegal sentence is fundamental error appellate court must vacate). 5 4 Covey also argues the superior court did not articulate the standard of proof it used to find the additional factors. We need not reach this argument because, as discussed above, the superior court was only required to find the additional factors by a preponderance of the evidence. 5 We decline the State s request we reduce Covey s sentence to the presumptive term rather than remand for resentencing. When a trial court relies on an improper factor, and we cannot be certain that it would have imposed the same sentence absent that factor, we must remand for resentencing. . . . The exercise of sentencing discretion is the trial court s, not ours. State v. Munninger, 213 Ariz. 393, 396, ¶ 9, 142 P.3d 701, 704 (App. 2006) (internal quotations omitted). 5 ¶9 Covey also argues we should vacate his sentences and remand because aggravators the the superior State failed court to improperly allege before considered trial, thus depriving him of advance notice of the full extent of potential punishment, in violation of Arizona Rule of Criminal Procedure 13.5(a), and of his right to a fundamentally fair trial. We disagree. ¶10 Assuming the State should have provided notice of the additional factors, 6 Covey must demonstrate he was prejudiced. See supra ¶ 5. As discussed above, see supra ¶¶ 6-7, the State alleged Covey s four prior felony convictions, qualifying him for the enhanced sentencing range pursuant to A.R.S. § 13-604, and an aggravated sentence, above the presumptive, under § 13702(B) and (C)(11). Once the superior court found Covey s four priors, it was entitled to find the additional factors under Blakely. See State v. Lamar, 210 Ariz. 571, 577, ¶ 26, 115 P.3d 611, 617 (2005) (once prior felony conviction found, court is then free to consider additional aggravating factors in determining the actual sentence to impose, up to the maximum sentence prescribed by the sentencing statute ). 6 Because the Pretrial notice enables a defendant to know the full range of potential punishment he faces upon conviction; fundamental fairness and due process require that allegations that would enhance a sentence be made before trial so that the defendant can evaluate his options. State v. Benak, 199 Ariz. 333, 336-37, 18 P.3d 127, 130-31 (App. 2001). 6 additional factors were not required to be found by a jury, under a literal reading of Rule 13.5(a), the State did not need to allege them. amend an See Ariz. R. Crim. P. 13.5(a) ( prosecutor may indictment, information or complaint to add an allegation of . . . other non-capital sentencing allegations that must be found by a jury (emphasis added)). has failed to demonstrate the State s failure Thus, Covey to allege the order as additional factors prejudiced him. ¶11 Finally, we note the signed sentencing amended and the minute entry for the sentencing hearing recited Covey s attempted second degree murder and aggravated assault convictions as dangerous offenses pursuant to A.R.S. § 13-604. The jury found these offenses to be dangerous although neither the grand trial. jury nor the State made this allegation prior to Citing State v. Laughter, 128 Ariz. 264, 268-69, 625 P.2d 327, 331-32 (1980), the superior court did not sentence Covey as a dangerous offender, see A.R.S. § 13-604(I), but as a repetitive offender because Covey s prior convictions were not dangerous. See A.R.S. § 13-604(D). Thus, we correct the sentencing order and minute entry to reflect Covey was sentenced for attempted second degree murder and aggravated assault as a repetitive offender. State v. Sands, 145 Ariz. 269, 278, 700 P.2d 1369, 1378 (App. 1985) (error in sentencing minute entry requires modification). 7 CONCLUSION ¶12 For convictions; 7 the foregoing affirm Covey s reasons, sentences we for affirm Covey s attempted second degree murder and aggravated assault; vacate Covey s sentence for hindering prosecution in the first degree and remand for resentencing; and correct the superior court s sentencing order and minute entry to reflect Covey was sentenced for attempted second degree murder and aggravated assault as a repetitive offender. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ MAURICE PORTLEY, Judge 7 Although Covey s notice of appeal also challenged his convictions, he presented no argument on appeal contesting them. 8

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