State v. Manning

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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. SHAWN NELSON MANNING, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0783 1 CA-CR 09-0784 (Consolidated) DIVISION ONE FILED: 02/10/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-048501-001 SE CR 2007-153667-001 SE The Honorable Emmet J. Ronan, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Shawn Nelson Manning appeals from his sentences for burglary in the second degree, a class three felony in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1507 (2001), and theft of means of transportation, a class three felony in violation of A.R.S. § 13-1814 (2001). court should not have sentenced He argues the superior him to aggravated sentences under A.R.S. § 13-702.02 (2001) because a jury did not determine the aggravating circumstances. We disagree and affirm his sentences. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 In August 2007, a grand jury indicted Manning for two class three felonies -- burglary in the second degree and theft of property of $4000 or more but less than $25,000. Further, in September 2007, a grand jury indicted Manning for theft of means of transportation. Manning waived his right to a trial by jury, and after a four-day bench trial on the consolidated charges, 2 the court found Manning guilty of burglary in the second degree, committed on or between August 11 and 16, 2007; the lesserincluded offense of theft, a class one misdemeanor, committed on or between August 11 and 16, 2007; and theft of means of transportation, committed on or about August 17, 2007. ¶3 At the sentencing hearing, the court considered evidence on Manning s prior felony convictions and mitigating 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Manning. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 The court consolidated both cause numbers for trial but not for sentencing. 2 and aggravating latent prior print circumstances. examiner convictions, After testified the court at the the found State s hearing Manning had on forensic Manning s three prior felony convictions in Florida for offenses committed in 1990. 3 The court used these Florida felony convictions as two or more not historical prior felony convictions as defined in § 13-604 (Supp. 2006) A.R.S. § to bring Manning 13-702.02(B)(4) offenses. for within both of the his enhanced class range three of felony A.R.S. § 13-702.02(B)(4); see State ex rel. Romley v. Hauser, 209 Ariz. 539, 541, ¶ 9, 105 P.3d 1158, 1160 (2005) (a prior felony conviction that falls outside the § 13-604 definition of historical prior felony conviction may be used for sentence enhancement under § 13-702.02). Under § 13- 702.02(B), the presumptive sentence is 6.5 years, and the court may aggravate the sentence up to 13 years pursuant to § 13702(B)-(D) (Supp. 2006). ¶4 Before sentencing Manning, the court noted it had considered the written presentence report, trial testimony 4 and 3 Manning s Florida felony convictions are as follows: (1) Dealing in Stolen Property, committed on August 31, 1990, and convicted on August 20, 1992, (2) Uttering a Forged Instrument, committed on August 29, 1990, and convicted on August 20, 1992, and (3) Fraudulently Obtaining a Motor Vehicle Title, committed on August 29, 1990, and convicted on August 20, 1992. 4 During the State s cross-examination, Manning stated he had been arrested and imprisoned in Florida for receiving stolen property and fraud check schemes, had been arrested and 3 evidence, both the State s and Manning s sentencing memoranda, and correspondence Manning filed. The court then found the following aggravating factors: 5 The offenses were committed for pecuniary gain. The defendant has a lengthy criminal history. It does appear that much of it is from 15 years ago, but they are all offenses that are similar in nature. Past efforts at probation and other prison terms have not changed the behavior. The Court also [found] that the defendant s conduct caused emotional and financial harm to the victims. The court mitigating found factor the of aggravating strong family factors support, outweighed and the sentenced Manning to an aggravated term of 12 years for each class three felony -- to run concurrently -- with 669 days of presentence incarceration credit, and to 180 days for the misdemeanor theft offense with 180 days of presentence incarceration credit. DISCUSSION ¶5 Manning argues the superior court improperly aggravated his sentences because a jury, not the court, should imprisoned in Ohio for robbery, and was currently incarcerated in California for [b]eing accused of being a driver in a bank robbery. 5 We note the court did not identify the specific authority it relied on for each aggravating circumstance. This makes appellate review very difficult, especially when the court speaks in general terms. Our supreme court has repeatedly encouraged trial courts to indicate the statutory subsection for each aggravating circumstance. See, e.g., State v. Price, 217 Ariz. 182, 184 n.3, ¶ 4, 171 P.3d 1223, 1225 n.3 (2007). 4 have found the aggravating factors beyond a reasonable doubt. As we explain below, we disagree. ¶6 We review for fundamental error because, as Manning concedes, he did not object at trial to the court finding the aggravating factors. Thus, Manning must establish both that fundamental error exists and that the error in his case caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). ¶7 Under the Sixth Amendment, a defendant has the right to have a jury determine, [o]ther than the fact of a prior conviction, any fact that increases the beyond the prescribed statutory maximum. 6 Ariz. 182, 184, ¶ 8, 171 P.3d 1223, penalty for a crime State v. Price, 217 1225 (2007) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)). An aggravating circumstance can constitutionally increase a maximum sentence in three ways: first, a jury can find the aggravator beyond a reasonable doubt; second, a defendant can stipulate to relevant facts or consent to judicial fact-finding; and third, either the judge or a jury 6 [T]he statutory maximum sentence for Apprendi purposes in a case in which no aggravating factors have been proved to a jury beyond a reasonable doubt is the presumptive sentence established [by statute]. State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 115 P.3d 618, 623 (2005). 5 can find the fact of a prior conviction. Id. at 185, ¶ 10, 171 P.3d at 1226. ¶8 For the court to sentence Manning to an aggravated sentence, the State is aggravating circumstance. only required to establish A.R.S. § 13-702(B). one The finding of one Blakely-exempt 7 factor is enough to allow the trial court to consider other aggravating factors. State v. Burdick, 211 Ariz. 583, 586, ¶ 13, 125 P.3d 1039, 1042 (App. 2005) (citing State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005)); see A.R.S. § 13-702(D) ( If the trier of fact finds at least one aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. ). ¶9 Here, the court cited Manning s history as one aggravating circumstance. lengthy criminal Based on our review of the record, we conclude the court relied, at least in part, on the previously established Florida felony convictions 8 when listing Manning s circumstance. 9 criminal history as an aggravating A finding of prior convictions is a Blakely- 7 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). 8 See supra note 3 and accompanying text. 9 Although distinct from the enumerated aggravating circumstance of A.R.S. § 13-702(C)(11), this circumstance would fall within the catch-all of § 13-702(C)(24). 6 exempt aggravating circumstance. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004); see Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d 435. Thus, convictions to circumstance, once find it the his could court relied criminal consider on history any Manning s as an Florida aggravating other aggravating circumstances in imposing an aggravated sentence. 10 Accordingly, we hold the superior court s aggravation of Manning s sentences without a jury determination of aggravating circumstances did not constitute fundamental error. 10 The court did not use the catch-all aggravating circumstance as the sole factor to increase Manning s sentence because it also relied on the fact that Manning committed the offense for pecuniary gain, A.R.S. § 13-702(C)(6), and that Manning s conduct caused emotional and financial harm to the victims. A.R.S. § 13-702(C)(9). Furthermore, the State timely alleged several aggravating circumstances other than prior convictions, providing Manning with notice that it might use those circumstances to aggravate his sentence. Accordingly, the court s use of aggravating circumstances does not implicate the same concerns that were present in State v. Schmidt. See State v. Schmidt, 220 Ariz. 563, 566, ¶¶ 8-11, 208 P.3d 214, 217 (2009). 7 CONCLUSION ¶10 For the foregoing reasons, we affirm Manning s sentences. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Judge /s/ ____________________________________ PATRICIA A. OROZCO, Judge 8

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