State v. Jaramillo

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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 DIVISION ONE FILED: 07/28/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RAFAEL ANGEL JARAMILLO, ) ) Appellant. ) __________________________________) No. 1 CA-CR 10-0722 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-031235-001 SE The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 court s Rafael Angel Jaramillo ( Defendant ) appeals the trial use of two historical prior felony convictions to enhance his sentence after a jury found him guilty of 13 felony counts. Because we find no error in the sentence, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Defendant was indicted on six counts of armed robbery, class 2 dangerous felonies ( Counts 1 through 6 ); six counts of kidnapping, class 2 dangerous felonies ( Counts 7 through 12 ); and one count of misconduct involving weapons, a class 4 felony ( Count 13 ) for events that occurred February 6, 2008.1 The state two amended the indictment to allege Defendant had historical non-dangerous felony convictions that it would use to enhance sentencing. ¶3 After counts. trial, a jury found Defendant guilty on all The jury also found two aggravating factors for each of Counts 1 through 12. The trial court found that Defendant had two historical prior felony convictions: armed robbery, a class 2 felony committed July 14, 2001; and misconduct involving weapons, a class 4 felony committed May 27, 2007. ¶4 The court sentenced Defendant to 15.75 years for each of Counts 1 through 12, which was the presumptive term for class 2 felonies committed by a defendant with two historical prior 1 The facts of the underlying convictions are not at issue on appeal. 2 See A.R.S. § 13-604(D).2 felony convictions. The court also imposed a presumptive 10-year sentence for Count 13. Defendant raised no objection to this sentence. ¶5 Defendant timely appeals. We have jurisdiction pursuant to A.R.S. §§ 12 120.21(A)(1), 13 4031, and 4033(A). DISCUSSION ¶6 Defendant contends the trial court committed fundamental error when it used his two historical prior felony convictions to enhance his sentence on Counts 1 through 12, pursuant to A.R.S. § 13-604. ¶7 We disagree. We review for fundamental error because Defendant did not object to his sentence at the trial court. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Defendant bears the burden to demonstrate that fundamental error occurred and Imposition error. that of he an was illegal prejudiced sentence by it. Id. constitutes at ¶ 20. fundamental State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002). An unlawful sentence is one that is outside 2 We reference the version of A.R.S. § 13-604 in effect at the time the offense occurred (February 6, 2008). That statute defined historical prior felony conviction to include any prior felony that involved the use or exhibition of a deadly weapon or dangerous instrument; any class 2 or 3 felony that was committed within the ten years immediately preceding the date of the present offense; or any class 4, 5 or 6 felony that was committed within the five years immediately preceding the date of the present offense. See A.R.S. § 13-604(W)(3) (2008). 3 the statutory range. State v. House, 169 Ariz. 572, 573, 821 P.2d 233, 234 (App. 1991). ¶8 604. At issue here are various subsections of A.R.S. § 13The sentencing order does not specify the subsection under which Defendant was sentenced, but it does designate Counts 1 through 12 as [d]angerous and [r]epetitive offenses.3 state s amended indictment alleged historical prior The felony convictions pursuant to A.R.S. § 13-604(A), (B), (C), (D), (G), (H), (U). ¶9 A.R.S. In his opening brief, Defendant variously discusses § 13-604 (D), (G), (I), (D) was noticed (J) in and the (K). state s Of those subsections, only amended indictment.4 Subsection (D) required a 14-year minimum, 15.75- year presumptive, and 28-year maximum sentence for a defendant convicted of a class 2 felony with two or more historical prior felony convictions. This is the exact sentencing range that was suggested by the presentence investigation and accepted by the court. We find no error. 3 In order to facilitate appellate review, trial judges should indicate on the record the specific statutory subsection under which a criminal sentence is imposed. State v. Anderson, 211 Ariz. 59, 61 n.1, ¶ 4, 116 P.3d 1219, 1221 n.1 (2005). 4 Although subsection (G) was noticed, it is not relevant because it discussed conviction of a class 4, 5 or 6 felony, and Counts 1 through 12 here were class 2 felonies. 4 ¶10 We also find no error flowing from the fact that the court could have sentenced Defendant pursuant to subsection (I) because his historical prior convictions were designated nondangerous. 10.5-year See A.R.S. § 13-604(I) (providing a 7-year minimum, presumptive, and 21-year maximum sentence first conviction of a class 2 dangerous felony). for a See also State v. Smith, 171 Ariz. 54, 56, 828 P.2d 778, 780 (App. 1992) (finding no merit to defendant s assertion that the trial court should have sentenced him as a first-time offender and ignore[d] his two prior felony convictions simply because the current conviction was his first dangerous nature conviction ); State v. Laughter, 128 Ariz. 264, 269, 625 P.2d 327, 332 (App. 1980) (finding nothing in A.R.S. § 13-604 that would prevent defendant convicted dangerous of historical armed felony robbery convictions with from two prior receiving nonthe harsher sentence of a repeat offender rather than that imposed for a first dangerous offense). ¶11 Here, it is clear that the state never intended to use subsection (I) for sentence enhancement because the state did not include that subsection in its amended indictment. Instead the state gave Defendant notice of its intent to use subsection (D) and provided the court with a sentencing recommendation in accordance with that section. As such, Defendant was appropriately on notice of the full extent of the potential 5 lawful punishment he faced. See State v. Benak, 199 Ariz. 333, 337, ¶ 14, 18 P.3d 127, 131 (App. 2001) ( [F]undamental fairness and due process require that allegations that would enhance a sentence be made before trial so that the defendant can evaluate his options. ). ¶12 Additionally, Defendant provides no authority to support his conclusion that merely because the court could have sentenced him fundamental pursuant error recommendation. when to it subsection accepted the (I), it state s committed sentencing See State v. Moody, 208 Ariz. 424, 443, ¶ 49, 94 P.3d 1119, 1138 (2004) ( We presume that a court is aware of the relevant law and applies it correctly in arriving at its ruling. ). See also State v. Munniger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) (finding defendant failed to meet burden to demonstrate prejudice when he asked appeals court to speculate that sentence imposed might have been different). ¶13 We also disagree with Defendant s assertion that the court s questions and exchanges with the prosecutor suggest that the court was unfamiliar with the record, the significance of prior convictions, and the pertinent sentencing range. will not statutory disturb range discretion. 263, 266 a sentence absent an that is abuse within of the the We applicable trial court s State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d (App. 2007). However, 6 [e]ven when the sentence imposed is within the trial judge s authority, if the record is unclear whether the judge knew he had discretion to otherwise, the case should be remanded for resentencing. act State v. Garza, 192 Ariz. 171, 176, ¶ 17, 962 P.2d 898, 903 (1998). ¶14 Here, the sentencing minute entry demonstrates that the court was aware the prior convictions were non-dangerous. Contrary to Defendant s assertion, the transcript demonstrates the court questioned the prosecutor because it wanted to ensure a clear record of Defendant s prior convictions and their effect on sentencing. The transcript also clearly demonstrates that the court found all 13 of these crimes are with two prior felony convictions. discussion below Defendant and does findings were erroneous. sentencing not did now not claim object that to the this court s Nor did Defendant offer a different recommendation; instead, he agreed that the presentence investigation report s recommended presumptive term was probably reasons appropriate therein and under requested sentences concurrently. the only circumstances that the court and the run the These facts distinguish the situation at bar from the cases cited by Defendant that required remand because the record revealed a misunderstanding of the law. See State v. Stroud, 209 Ariz. 410, 414, ¶¶ 20-21, 103 P.3d 912, 916 (2005) (finding error where sentencing court erroneously relied on defendant s statement that 7 consecutive sentences were required); Garza, 192 Ariz. at 175, ¶¶ 14, 16, 962 P.2d at 902 (finding error where trial court wrongly felt . . . confined by a non-existent presumption ); State v. LaBar, 148 Ariz. 522, 524, 715 P.2d 775, 777 (App. 1985) ( Had the trial judge in this case decided that a consecutive sentence was discretionary rather than mandatory, it is possible that he would not have imposed it. ); State v. Pena, 140 Ariz. 545, 551, 683 P.2d 744, 750 (App. 1983) ( Obviously the trial judge felt constrained to follow the law in effect at the time . . . . Had he realized a consecutive sentence was discretionary rather than mandatory, it is possible he would not have imposed it. ). CONCLUSION ¶15 For the foregoing reasons, we affirm. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ DANIEL A. BARKER, Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 8

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