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State v. Shuler9/19/1989
The principal issue on appeal in this case concerns whether the trial court may properly consider prior arrests as an aggravating circumstance in determining a defendant's sentence. We hold that the court may not consider mere arrests which are unsupported by evidence of bad acts or illegal conduct. The record here reveals that most of the arrests considered by the trial court resulted in convictions and were therefore properly considered. We are convinced from our review of the entire record that even if the trial judge had drawn the distinction between mere arrests and convictions that he should have drawn, the sentence would not have been different. We therefore affirm.
The defendant, David Allen Shuler, was charged with possession of a dangerous drug and felony flight. He later pled guilty to felony flight, and was sentenced to the maximum term of two-and-one-half years' imprisonment. He appealed, and after the briefs were filed the appeal was stayed to allow the defendant to complete proceedings on his petition for post conviction relief. In that petition, he asserted that he had been denied his right to allocution and that his counsel had been ineffective for not asserting defendant's right to allocution. The trial court denied the petition without a hearing, and the defendant timely filed a petition for review, which has been consolidated with this appeal. We grant review of the petition for post conviction relief but deny relief, and otherwise affirm the judgment and conviction.
FACTORS CONSIDERED BY THE TRIAL COURT AT SENTENCING
At the time the defendant was sentenced, the trial judge said, "The reason for this [aggravated sentence] is that you have been granted leniency by the state, and also because you have an extensive arrest record. These are treated as aggravating factors." (Emphasis added.) The defendant argued that his past criminal record, which appeared in the presentence report, should not have been considered as an aggravating factor "since the record is old, he has paid his debts to society, and has in recent years stayed out of serious trouble." There is no merit to this claim. Under the relevant sentencing statute, the trial court may consider as an aggravating circumstance any "factor[ ] which the court may deem appropriate to the ends of justice." A.R.S. § 13-702(D)(13)(Supp.1988). " he court should take into account both . . . the past conduct and moral character of the defendant so that the punishment may fit the offense and the offender." State v. Gray, 122 Ariz. 445, 448, 595 P.2d 990, 993 (1979). Information in presentence reports taken from police records is generally admissible to show aggravating or mitigating circumstances. State v. Marquez, 127 Ariz. 3, 6, 617 P.2d 787, 790 (App.1980). It is within the trial court's discretion to consider the defendant's past criminal conduct, whenever it occurred.
The case, however, presents another question not initially raised by the defendant. After examining the record for fundamental error, we asked the parties to brief the question of whether the trial court improperly considered the defendant's prior arrests as an aggravating circumstance. They have now done so.
The trial court may consider a defendant's criminal character and history. State v. Ellis, 117 Ariz. 329, 334-35, 572 P.2d 791, 796-97 (1977). This is true even if the defendant's conduct has not resulted in a conviction. In State v. Cawley, 133 Ariz. 27, 29, 648 P.2d 142, 144 (A
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