State v. Grant

Annotate this Case

Download PDF

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. DOUGLAS D. GRANT, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0384 DIVISION ONE FILED: 02/17/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-032986-001 DT The Honorable Margaret R. Mahoney, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Tyrone Mitchell, PC by Tyrone Mitchell Attorneys for Appellant Phoenix Douglas D. Grant Appellant Douglas P O R T L E Y, Judge ¶1 This is appeal under Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel for Defendant Douglas Grant has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. supplemental appealing subject brief from matter the in which sentence jurisdiction he specifically only. 1 to Defendant filed a Thus, review declares although the he is we have conviction for fundamental error, we limit our review to the sentence imposed. See State v. Smith, 171 Ariz. 501, 502, 831 P.2d 877, 878 (App. 1992); State v. Delgadillo, 174 Ariz. 428, 430 n.1, 850 P.2d 141, 143 n.1 (App. 1993). 2 Finding no reversible error, we affirm. 1 On page 8 of his supplemental brief, Defendant states Appellant Grant is not appealing his conviction. He is only appealing the aggravators. Three pages later, he states that [h]e only concedes no error of trial conviction occurred. There are also other statements in his brief which clearly reflect his desire to only challenge his sentence. Thus, we only address the Blakely v. Washington, 542 U.S. 296 (2004) claim. 2 The jury was unable to agree on the first and second degree murder verdicts. If asked, and if we addressed the merits of the conviction and reverse his manslaughter conviction, Defendant could be tried again for first degree murder. See Lemke v. Rayes, 213 Ariz. 232, 141 P.3d 407 (App. 2006). He, however, only challenges his sentence. 2 FACTS 3 ¶1 Defendant s wife, F.G., drowned in a bathtub on September 27, 2001, and Defendant was indicted and charged with first degree murder. After a lengthy jury trial, the jury found Defendant guilty of the lesser included offense of manslaughter in March 2009. ¶2 The jury then heard evidence of three aggravating factors: (1) Defendant committed the offense in an especially cruel manner; (2) he committed the offense for pecuniary gain; and (3) the offense caused emotional or financial harm to the victim s immediate family. 4 the victim s sister, The state presented testimony from brother, Defendant also testified. father, daughter, and mother. The jury found the State proved all three aggravators. ¶3 Prior to the mitigation hearing, the adult probation department submitted a presentence report which recommended a sentence greater than the presumptive. were numerous interested letters parties from the requesting victim s the 3 Attached to the report judge relatives to impose and other a prison We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 4 Counsel suggests that because the jury did not convict Defendant of first degree murder, the pecuniary gain factor was improperly considered by the jury. Although there was no objection below, Arizona law permits inconsistent verdicts. See Lemke, 213 Ariz. at 241, ¶ 26, 141 P.3d at 416. 3 sentence and, in several of these letters, to the maximum term allowed. Defendant submitted a mitigation packet which included letters from some of the victim s relatives and other interested parties in support of Defendant and requesting the judge to place Defendant on probation. ¶4 At the start of the mitigation hearing, the trial court noted that it had read and considered all of the materials submitted. Defendant then presented supportive testimony from relatives and friends. At the conclusion of the hearing, the court found that Defendant s notable contributions to various people and to the community, and Defendant s convictions were mitigating factors. lack of prior The court, however, found that the tremendous pain and loss suffered by the victim s family was an aggravating factor. the mitigators and aggravators The court further stated that were balanced, and sentenced Defendant to five years imprisonment, the presumptive term for a class two felony, with credit for sixty-six days of pursuant to presentence incarceration. ¶5 We have jurisdiction over this appeal Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and -4033(A)(1) (2010). 4 DISCUSSION ¶6 We have read and considered counsel s brief and Defendant s supplemental brief, and have reviewed the evidence presented at the aggravation trial, the mitigation hearing, and all the sentencing proceedings for reversible error. 104 Ariz. at 300, 451 P.2d at 881. See Leon, Defendant was given the opportunity to present mitigating evidence, both documentary and through the testimony of witnesses, and he was given an opportunity to be heard prior to the imposition of sentence. The presumptive sentence imposed is the presumptive sentence for this crime, a class two, non-dangerous, non-repetitive felony. See A.R.S. §§ 13-701, -702(D). The aggravating factors were found by the jury, A.R.S. §§ 13-701(D)(5), (6), and (9), 5 and the trial court weighed the aggravating circumstances against the mitigating circumstances as required. ¶7 A.R.S. § 13-701(C). Defendant raises one cognizable argument. 6 Relying on Blakely, he contends that the aggravating circumstances were not properly re-alleged by the State after his motion to remand was 5 The Arizona criminal sentencing code was renumbered. See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120. Because the renumbering included no substantive changes, we refer to the current section numbers. 6 Defendant also raises a claim of ineffective assistance of appellate counsel, but claims of ineffective assistance of counsel cannot be raised on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) (claims of ineffective assistance of counsel cannot be presented in a direct appeal); State v. Spreitz, 202 Ariz. 1, 3, ¶ 19, 39 P.3d 525, 527 (2002) (same). 5 granted and the grand jury returned another indictment. he argues, the aggravating submitted to the jury. factors should not Thus, have been If the aggravating factors had not been considered and found by the jury, his argument continues, the court would have imposed a mitigated sentence. Defendant did not object at trial to the lack of a second allegation, the submission of the aggravating factors to the jury, or to the court s consideration of the aggravating factors at sentencing. Therefore, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); Clark, 196 Ariz. at 537, ¶ 30, 2 P.2d at 96. ¶8 At presumptive the outset, sentence, we and note thus Defendant Blakely is received not the applicable. Blakely established the right to a jury trial on any fact that increases the punishment beyond the presumptive. Because Defendant s sentence was not increased beyond the presumptive, no error occurred. ¶9 Even correct, there if is we assume nothing for in argument the record that Defendant is that supports his argument that the trial court would have sentenced him to the mitigated trial, term. heard presumptive The the term trial testimony of judge was present throughout and was free to imprisonment even with only impose the the the trial testimony, the presentence report and the mitigation hearing. 6 Defendant s counsel concedes such in his brief when he notes that the court relied on the emotional harm to the victim s family aggravating factor. State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005). Consequently, the failure to re-allege the aggravating factors was not fundamental error. See State v. Johnson, 210 Ariz. 438, 441-42, ¶¶ 12-13, 111 P.3d 1038, 1041-42 (App. 2005) (judicial factfinding when selecting presumptive sentence does not implicate indictment or jury trial right). 28, ¶ See also State v. Miranda-Cabrera, 209 Ariz. 220, 22734, 99 Amendment P.3d 35, violation compliant 42-43 when aggravating circumstances and (App. trial 2004) court no Sixth weighs sentence non-Blakely against circumstances resulting (finding mitigating is not above the presumptive). ¶10 Nevertheless, aggravating the circumstances, State filed Defendant an had allegation notice prior of the to the aggravation phase of the trial, and testified before the jury determined the aggravators. satisfied due process. Thus, the notice Defendant received See State v. Jenkins, 193 Ariz. 115, 121, ¶ 21, 970 P.2d 947, 953 (App. 1998). ¶11 and Having having addressed searched the Defendant s entire reversible error, we find none. conducted in compliance with the 7 supplemental record of argument, sentencing for All of the proceedings were Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. CONCLUSION ¶12 After obligation to this decision represent has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, counsel s to the See State v. 157 (1984). Defendant can, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶13 Accordingly, we affirm Defendant s sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.