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State v. Lutz6/30/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
REVIEW GRANTED; RELIEF DENIED
While driving under the influence of alcohol with a blood alcohol content of.13, petitioner Robert P. Lutz, Jr., struck three pedestrians, killing a two-year-old child. He then fled from the scene of the accident. Pursuant to a plea agreement in two causes, he was convicted of manslaughter, aggravated driving under the influence of alcohol, and disorderly conduct. After an aggravation/mitigation hearing, the trial court sentenced him to an aggravated prison term of eight years on the manslaughter conviction; a presumptive, concurrent prison term of one year on the disorderly conduct charge; and a consecutive, eight-year term of probation on the aggravated driving under the influence conviction. He filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S., in which he claimed that the trial court had abused its sentencing discretion by failing to give sufficient weight to the mitigating circumstances and that trial counsel had been ineffective because counsel had misinformed him of the potential sentence he faced by accepting the plea. The trial court denied relief without an evidentiary hearing, and petitioner seeks review of that order. Absent an abuse of discretion, we will not disturb the trial court's order. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986).
Petitioner contends first that there were significant mitigating circumstances to which the trial court did not give adequate weight when determining the appropriate sentence. As petitioner points out and as the record reflects, at the sentencing hearing he urged the court to consider in mitigation the testimony of an accident reconstructionist who had described the difficulty petitioner would have had seeing that evening because of the curvature in the road; that the pedestrians had been crossing from north to south in the middle of the street, in violation of a law requiring them to cross in a marked crosswalk; that the father of the victim had crossed the street even after he had seen the headlights of petitioner's oncoming vehicle; that the father and the thirteen-year-old who was carrying the two-year-old victim were intoxicated; and that their intoxication would have affected their ability to judge the distance of the oncoming car and its speed. The expert also testified about petitioner's driving, concluding he had not been driving in excess of the speed limit and that he had taken evasive action. In his petition for post-conviction relief, petitioner relied on this evidence and what he implicitly characterizes as his partial responsibility for this tragic accident in support of his claim that, had the trial court given the mitigating circumstances adequate weight in determining the appropriate sentence, it would not have imposed an aggravated, eight-year term.
As the court pointed out in its thorough minute entry denying relief, the sentencing judge had found that the aggravating factors included facts that petitioner had left the scene; had used a dangerous instrument (the car); had caused serious physical injury and death; had acted recklessly; has a criminal history, including fifteen criminal misdemeanors; has exhibited a tendency to violate DUI and other driving laws and regulations. Additionally, the effect of the crime on the family was an aggravating factor. But as the court also pointed out in its order denying post-conviction relief, the sentencing judge had found there were mitigating circumstances: petitioner's remorse, his community and family support, and the needs of his family. Balancing the relevant factors an
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