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State v. Hopkins8/18/2003
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Moreover, in questioning the prospective jurors, the trial court informed them of the charges against Hopkins, including the allegations that he had been driving while his license was suspended or revoked. A prospective juror readily would have suspected that Hopkins's license had been suspended or revoked for a reason and that the reason was some sort of unlawful conduct, including driving while under the influence of an intoxicant. Hopkins therefore failed to sustain his burden of showing the remarks had prejudiced the panel. See Doerr.
Hopkins next argues the trial court erred by considering improper sentencing aggravating factors. After hearing from both the prosecutor and defense counsel at sentencing, the court stated:
Pursuant to the terms of the law the Court finds that probation is not appropriate. The Court, however, has considered the following factors which the Court viewed as aggravating.
First, that the defendant had three felony prior, excuse me, three felony convictions in 14 years. He would have had four but for the fact that it had been vacated due to apparently ineffective assistance of counsel. That many contacts[;] besides[,] those are DUI related. He's had seven DUI's over a 15 year period.
The Court is also concerned about what the presentence report indicated as to the defendant's disagreement with the statement of the offense, and his apparent inability to accept the consequences of his actions. That someone could have, indeed, been injured, or worse, been killed as a result of his driving under the influence .
Hopkins contends that the trial court erred in considering his vacated conviction as an aggravating factor and claimed the court's comment misstated what was in the presentence report and led to the court's imposing a sentence based on false premises. He argues the court would have imposed a mitigated sentence if it were not for these errors. A trial court has broad discretion in sentencing, and if the sentence imposed is within statutory limits, the appellate court will not disturb the sentence unless there is a clear abuse of discretion. State v. Ward, 200 Ariz. 387, 26 P.3d 1158 (App. 2001).
The record is unclear whether the court, in commenting on the vacated conviction, actually relied on it in concluding that the presumptive term was appropriate. But even assuming it did, Hopkins has not shown that the court would otherwise have reached a different conclusion, in view of Hopkins's extensive record of criminal conduct. See State v. Bradley, 99 Ariz. 328, 409 P.2d 35 (1965).
As for the presentence report, the trial court did not misstate its contents. The probation officer who prepared the report noted that Hopkins had disagreed with the report's statement of the offenses. Hopkins claimed he had not been swerving from lane to lane and said he did not know why he had been stopped. In his summary, the probation officer stated that Hopkins had allowed alcohol to control his life and that he minimized his behavior in the crimes. In any event, the trial court found that his "remorse and contrition" were mitigating factors. We conclude that the trial court did not abuse its discretion in sentencing Hopkins.
The convictions and sentences are affirmed.
J. WILLIAM BRAMMER, JR., Presiding Judge
CONCURRING:
M. JAN FLUREZ, Judge
JOSEPH W. HOWARD, Judge
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