State v. Almendarez
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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: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
RAYMOND ALMENDAREZ,
)
)
Appellant. )
)
__________________________________)
No. 1 CA-CR 11-0018
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Coconino County
Cause No. CR2010-00119
The Honorable Charles D. Adams, Judge Pro Tempore
AFFIRMED AND REMANDED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And
Liza-Jane Capatos, Assistant Attorney General
Attorneys for Appellee
H. Allen Gerhardt, Coconino County Public Defender
Attorney for Appellant
Phoenix
Flagstaff
S W A N N, Judge
¶1
imposed
Raymond Almendarez (“Defendant”) appeals the sentences
after
his
conviction
of
two
class
2
felonies.
He
contends the trial court erred in considering two aggravating
factors during sentencing and in imposing a presumptive term in
the absence of any aggravating factors.
We affirm Defendant’s
sentences for the reasons set out below.
But as we explain, we
remand for the trial court to correct its sentencing minute
entry.
FACTS AND PROCEDURAL HISTORY
¶2
On
January
21,
2010,
Defendant
arranged
to
sell
methamphetamine to an undercover police officer, and on January
25 the sale occurred.
Defendant was arrested and indicted for
conspiracy to commit sale of dangerous drugs (“Count 1”) and
sale of dangerous drugs (“Count 2”).
¶3
Before trial, the state disclosed to Defendant five
certified document packets containing his Arizona Department of
Corrections (“ADOC”) records, including the ADOC “master file”
summarizing various convictions and sentences.
The state also
filed a motion alleging six prior felony convictions it intended
to
use
at
trial
to
enhance
Defendant’s
sentence,
and
the
indictment was amended to add those felonies “as to all Counts.”
The state also filed a motion to admit six previous drug-related
offenses as “other . . . acts” pursuant to Ariz. R. Evid. 404(b)
and a motion to impeach Defendant with seven specific felony
convictions committed from 1994 through 2008.
The state also
alleged as an aggravating factor that Defendant had acted for
pecuniary gain.
2
¶4
A jury convicted Defendant of both counts and found
the aggravating factor of pecuniary gain proved.
At a trial on
his priors, the trial court found that the state had proved
beyond
a
reasonable
doubt
that
Defendant
had
committed
five
previous felonies.
¶5
court
In
to
its
sentencing
consider
sentencing.1
four
memorandum,
additional
the
state
aggravating
urged
factors
the
during
At sentencing, the court used two historical priors
to enhance Defendant’s sentence on both counts.2
On Count 2, the
court also found three aggravating and three mitigating factors.
The court imposed a presumptive term of 15.75 years for Count 1
to run concurrently with an aggravated term of 18 years for
Count 2.
¶6
Defendant
timely
appeals
his
sentence.
We
have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A).
1
The proposed factors were: (1) three felony convictions that
the court found beyond a reasonable doubt; (2) Defendant’s
involvement in multiple drug transactions; (3) the sentence’s
deterrent effect; and (4) the danger to the community created by
Defendant’s drug sales.
2
The convictions were two separate charges of possession of drug
paraphernalia, both class 6 felonies, committed in 2006 (CR
2006-1130) and 2008 (CR 2008-0611).
3
DISCUSSION
¶7
Because Defendant failed to object to his sentences at
the time of sentencing, we review only for fundamental error.3
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601,
607 (2005).
An illegal sentence is a form of fundamental error,
and therefore is not waived by the failure to raise it in the
trial court.
See State v. Alvarez, 205 Ariz. 110, 116, ¶ 18, 67
P.3d 706, 712 (App. 2003).
To prevail under fundamental error
review, “a defendant must establish both that fundamental error
exists and that the error in his case caused him prejudice.”
Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
3
In his opening brief, Defendant generally asserts that the
sentencing process violated his due process rights, but he does
not further develop this issue.
See ARCAP 13(a)(6), (b)(1)
(requiring opening briefs to present significant arguments,
supported by authority, setting forth a party’s position on the
issues raised).
Defendant therefore waives any due process
argument. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94
P.3d 1119, 1147 n.9 (2004) (stating that the failure to
appropriately argue a claim on appeal usually constitutes
abandonment and waiver of that claim).
Regardless, as we
explain above, we find no error in the sentences imposed.
We
also note that the state’s pre-trial motions notified Defendant
that the state would use his prior criminal history to affect
sentencing, as did its sentencing memorandum.
See State v.
Jenkins, 193 Ariz. 115, 121, ¶ 21, 970 P.2d 947, 953 (App. 1998)
(stating that the notice of aggravating factors in the state’s
presentence memorandum satisfied due process); State v. Ford,
125 Ariz. 8, 9, 606 P.2d 826, 827 (App. 1979) (finding no due
process violation when trial court sua sponte finds aggravating
factors in the presentence report).
4
I.
COUNT 1
¶8
Defendant
contends
that
the
trial
court
committed
fundamental error when it imposed a presumptive term on Count 1,
asserting that “[o]nce mitigation is found, some reduction from
the presumptive [term] is justified when no aggravating factor
exists.”
¶9
“In
determining
what
sentence
to
impose,
the
court
shall take into account the amount of aggravating circumstances
and
whether
the
amount
of
mitigating
circumstances
sufficiently substantial to justify the lesser term.”
13-701(F).
is
A.R.S. §
A trial court has considerable discretion to decide
whether mitigating factors do or do not justify a mitigated
sentence.
State v. Olmstead, 213 Ariz. 534, 535, ¶ 6, 145 P.3d
631, 632 (App. 2006).
¶10
(1)
Here, the trial court found three mitigating factors:
Defendant’s
incapacity
to
conform
his
conduct
to
the
requirements of the law due to drug impairment; (2) Defendant’s
“low functioning . . . fourth to sixth grade” reading and math
level; and (3) the presence of Defendant’s family in court.
the
court
concluded
that
those
factors
did
not
“carry
But
much
weight” because: (1) Defendant’s conduct was affected by “selfinduced” addiction for which he had “years of opportunity to
seek
help”;
(2)
evidence
demonstrated
that
Defendant
“consciously participated” in the drug buys and “knew at the
5
time . . . they were against the law”; and (3) “the potential of
methamphetamine and drugs” were part of Defendant’s family life.
¶11
Defendant
recognizes
that
Olmstead
upheld
the
imposition of a presumptive term even though mitigating factors
were found, but nevertheless asks us to reconsider that holding.
We decline to do so, continuing to apply a fundamental error
analysis when the sentence imposed is within the statutory range
and supported by the record.
See State v. Dungan, 149 Ariz.
357, 361, 718 P.2d 1010, 1014 (App. 1985) (“The principle of
stare decisis dictates that previous decisions of this court are
considered
convinced
highly
that
conditions
persuasive
the
have
prior
changed
so
and
decision
as
to
binding,
is
unless
clearly
render
the
we
are
erroneous
prior
or
decision
inapplicable.”).
II.
COUNT 2
¶12
Defendant contends that this case must be remanded for
new
sentencing
because
the
court
applied
inappropriate
aggravating factors.
¶13
As
a
category
three
repetitive
offender,
the
court
could have sentenced Defendant to a presumptive term of 15.75
years, a 28-year maximum term, or a 35-year aggravated term for
each of the class 2 felony convictions.4
4
A.R.S. § 13-703(J).
To
Defendant does not challenge the factors the trial court used
to enhance his sentence, i.e., the jury’s finding of guilt or
6
impose a sentence greater than the presumptive, the jury or the
court must find aggravating circumstances, and the court must
determine
that
circumstances.
111
P.3d
those
aggravators
outweigh
any
mitigating
See State v. Johnson, 210 Ariz. 438, 441, ¶ 10,
1038,
1041
(App.
2005)
(“[T]he
maximum
punishment
authorized by a jury verdict alone, without the finding of any
additional facts, is the presumptive term.”); Alvarez, 205 Ariz.
at 112 n.1, ¶ 4, 67 P.3d at 708 n.1 (“Sentence enhancement
elevates
the
entire
range
of
permissible
punishment
while
aggravation and mitigation raise or lower a sentence within that
range.”).
¶14
Here, the court imposed an “aggravated” term of 18
years for Count 2 -- a term slightly greater than the 15.75
years the sentencing statute allowed for the presumptive term,
but significantly less than either the 28-year “maximum” term or
35-year “aggravated” term.
That sentence is supported in this
case by the jury’s finding that Defendant committed Count 2 for
pecuniary gain.
See A.R.S. § 13-701(C) (allowing “maximum” term
to
“only
be
imposed
if
one
or
more”
alleged
aggravating
the court’s use of two prior historical felonies. See A.R.S. §
13-703(C) (defining a category three repetitive offender as one
who “stands convicted of a felony and has two or more historical
prior felony convictions”), -703(J) (prescribing a mandatory
sentencing range for category three repetitive offenders).
Those issues are therefore waived.
See Schabel v. Deer Valley
Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47
(App. 1996) (“Issues not clearly raised and argued in a party’s
appellate brief are waived.”).
7
circumstances is found to be true beyond a reasonable doubt)
(emphasis
added),
(D)(6)
(defining
pecuniary
gain
as
an
aggravating factor).
A.
¶15
Additional Aggravators
Defendant concludes that “no other” aggravating factor
could be found except pecuniary gain because no other factor was
alleged by the state.
We disagree.
¶16
circumstances
Aggravating
evidence
or
court . . .
trial.”
information
before
may
introduced
sentencing
A.R.S. § 13-701(C).
or
or
any
be
found
submitted
evidence
aggravating
(“If
the
trier
circumstance,
preponderance
of
of
the
the
to
the
presented
at
State v. Marquez, 127
Ariz. 3, 5-6, 617 P.2d 787, 789-90 (App. 1980).
13-703(F)
any
A trial judge may “sua sponte find
aggravating circumstances in the record.”
§
“on
fact
trial
evidence
See also A.R.S.
finds
court
at
may
least
find
additional
one
by
a
aggravating
circumstances.”); cf. Ford, 125 Ariz. at 12, 606 P.2d at 830
(finding no due process violation when trial court sua sponte
finds aggravating factors in the presentence report).
¶17
allowed
Here,
the
the
court
jury
to
found
find
one
aggravating
additional
factor,
factors.
The
which
state’s
sentencing memorandum -- filed before sentencing –- suggested
additional aggravators for the court’s consideration.
8
¶18
Defendant asserts that the use of the terms “alleged”
and
“alleges”
“demonstrates
in
a
A.R.S.
legislative
aggravating factors.”
¶19
§
13-701(C)
intent
to
-701(D)(24)5
and
require
allegations
of
We disagree.
“The minimum or maximum term . . . may be imposed only
if one or more of the circumstances alleged to be in aggravation
of the crime are found to be true by the trier of fact beyond a
reasonable doubt . . . on any evidence or information introduced
or submitted to the court or the trier of fact before sentencing
or any evidence presented at trial, and factual findings and
reasons in support of such findings are set forth on the record
at
the
time
of
sentencing.”
A.R.S.
§
13-701(C)
(emphasis
added).
¶20
The language at issue here mirrors that discussed in
State
v.
assertion
Marquez.
that
legislative
the
There,
use
intention
of
that
we
disagreed
the
word
in
the
with
“alleged”
absence
appellant’s
indicated
of
a
“a
specific
allegation by the prosecutor charging aggravating circumstances,
the
trial
judge
would
not
have
5
jurisdiction
to
find
such
Defendant cites § 13-701(D)(22) as “the ‘catch-all’ provision
that relates to ‘[a]ny other factor that the state alleges is
relevant.’” But it is actually § 13-701(D)(24) that “catches
all” potential aggravating factors not enumerated in 701(D)’s
list and that contains the disputed term “alleges.”
9
circumstances
sentence.”6
¶21
for
the
purpose
of
increasing
the
presumptive
127 Ariz. at 5, 617 P.2d at 789.
As we pointed out in Marquez, nothing in A.R.S. § 13-
701(C)
places
the
burden
on
the
allegation of an aggravating factor.
789-90.
prosecution
to
raise
any
Id. at 5-6, 617 P.2d at
Additionally, A.R.S. § 13-701(C), like the statute at
issue in Marquez, requires that the aggravating factor be proved
by “evidence or information introduced or submitted . . . before
sentencing
or
.
.
.
at
trial.”
We
therefore
adopt
the
principles expressed in Marquez and hold that A.R.S. § 13-701(C)
allows the trial court, in its discretion, to deviate from the
presumptive term within the statutory limits if aggravating or
mitigating circumstances appear in the evidence.
127 Ariz. at
6, 617 P.2d at 790.
¶22
Finally, Defendant asserts that the trial court erred
because the third aggravating circumstance it found (the “need
6
The relevant language from A.R.S. § 13-702(C) (1980) quoted in
Marquez is:
The upper or lower term . . . may be imposed only
if the circumstances alleged to be in aggravation
or mitigation of the crime are found to be true
by
the
trial
judge
upon
any
evidence
or
information introduced or submitted to the court
prior to sentencing or any evidence previously
heard by the judge at the trial, and factual
findings and reasons in support of such findings
are set forth on the record at the time of
sentencing.
127 Ariz. at 5, 617 P.2d at 789 (emphasis added).
10
to deter Defendant from committing additional crimes”) is not a
true aggravating circumstance.
¶23
We find no error.
See State v. LeMaster, 137 Ariz.
159, 166, 669 P.2d 592, 599 (App. 1983) (“The trial court should
specifically
consider
sentence.”).
need
record
The
the
for
here
deterrence
demonstrates
in
that
imposing
the
court
considered Defendant’s individual need for deterrence based on
his significant criminal history.
The need to deter Defendant,
therefore, was an appropriate factor for the court to consider
in reaching its sentencing decision within the range already
permitted
by
aggravators.
and
character
the
existence
of
statutorily
enumerated
See id. (“In light of the past criminal history
of
appellant,
the
trial
court
did
not
err
in
considering the need for deterrence as an aggravating factor.”).
B.
¶24
We
Defendant’s
Prior Criminal History
also
prior
find
no
criminal
error
in
the
history
as
court’s
an
use
of
aggravating
circumstance.
¶25
For the purpose of determining the sentence, A.R.S. §
13-701(D)(11) states that the court shall consider “[t]he [fact
that the] defendant was previously convicted of a felony within
the ten years immediately preceding the date of the offense,” as
an aggravating circumstance.
11
¶26
court
Here,
to
the
state’s
use
three
prior
aggravating factor.7
statutory
time
sentencing
felonies
as
memorandum
a
single
urged
the
additional
One of those felonies occurred outside the
frame.
But
using
that
older
aggravating factor does not constitute error.
felony
as
an
See State v.
Romero, 173 Ariz. 242, 243, 841 P.2d 1050, 1051 (App. 1992)
(holding that language identical to that found in A.R.S. § 13701(D)(11) does not “mean that the judge cannot consider any
felony
that
is
more
than
ten
years
old”)
(emphasis
added).
Although the age of the older conviction could “diminish its
force as an aggravating factor,” id., the record here evidences
that the court considered that conviction in conjunction with
the two more recent felonies.
III.
SENTENCING MINUTE ENTRY
¶27
Defendant
correctly
points
out
that
the
sentencing
minute entry inappropriately includes A.R.S. § 13-709.03 as a
legal basis for both sentences.
sentencing
provisions
methamphetamine.
for
Although
That statute sets out special
drug
the
drug
offenses
involving
at
here
issue
was
methamphetamine, the state chose to prosecute Defendant as a
repetitive offender.
We therefore remand so that the trial
court can modify its minute entry to remove its reference to
7
These are additional felonies from the two used to enhance
Defendant’s sentence.
12
A.R.S. § 13-709.03.
See Ariz. R. Crim. P. 31.17(b) (allowing
appellate court to modify actions of the trial court); State v.
Sands,
145
Ariz.
(correcting
an
269,
278,
“inadvertent
700
P.2d
error”
1369,
in
a
1378
(App.
sentencing
1985)
minute
entry).
CONCLUSION
¶28
For
the
foregoing
reasons
we
affirm
Defendant’s
sentences but remand so that A.R.S. § 13-709.03 can be deleted
from the sentencing minute entry.
/s/
___________________________________
PETER B. SWANN, Presiding Judge
CONCURRING:
/s/
___________________________________
JON W. THOMPSON, Judge
/s/
____________________________________
JOHN C. GEMMILL, Judge
13
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