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State v. Colindres8/27/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Jose Orlando Colindres was convicted after a jury trial of aggravated driving with a blood alcohol concentration of.10 or more while his license was suspended and the lesser-included offense of driving with a blood alcohol concentration of.10 or more, a misdemeanor. At a hearing on the state's allegation that he had prior felony convictions, he admitted having a previous conviction for aggravated driving under the influence of an intoxicant (DUI). He was sentenced to the presumptive term of 4.5 years in prison and to time served on the misdemeanor conviction.
Appellant contends that the trial court's instruction on reasonable doubt denied him due process of law in violation of the United States and Arizona Constitutions and that the court erred by refusing to impose a mitigated sentence. We disagree and affirm.
The instruction the court gave on reasonable doubt was exactly the one mandated by our supreme court in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). Our supreme court reaffirmed its commitment to that instruction in State v. Lamar, ___ Ariz. ___, 72 P.3d 831 (2003). The trial court did not err in giving the instruction.
We also reject appellant's challenge of the sentence. Appellant contends the mitigating factors in this case clearly outweighed any aggravating factors and that the trial court erred by imposing the presumptive term instead of a mitigated term. A trial court's imposition of a sentence that is within the statutory range will not be disturbed absent an abuse of discretion. See State v. Gannon, 130 Ariz. 592, 638 P.2d 206 (1981). A trial court has discretion to weigh the aggravating and mitigating circumstances. State v. Harvey, 193 Ariz. 472, 974 P.2d 451 (App. 1998). An appellate court presumes that the trial court considered all relevant mitigating circumstances in making its sentencing decision. State v. Cid, 181 Ariz. 496, 892 P.2d 216 (App. 1995). It is the quality and strength of the various factors that count, not simply the number of aggravating and mitigating factors presented. State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998).
At sentencing, defense counsel cited as mitigating factors appellant's alcohol problem, the support and presence of his wife and children, his realization that he had a drinking problem and his desire to address it while in jail, and the counseling he had received while in the Pima County Jail. On appeal, appellant has pointed to other factors he claims are mitigating circumstances, including the contention that his alcohol addiction should be a mitigating circumstance with respect to the offense of driving under the influence of an intoxicant.
Based on appellant's admission, the trial court found that he had one historical prior felony conviction. Under A.R.S. § 13-604(A), appellant could have been imprisoned for six years. Instead, although noting that this was appellant's fourth DUI offense, the trial court imposed a presumptive sentence. The record reflects that the trial court weighed the aggravating and mitigating circumstances and did not abuse its discretion in imposing the presumptive sentence. We also reject appellant's request for a mitigated sentence pursuant to A.R.S. § 13-4037(B).
Affirmed.
M. JAN FLOREZ, Judge
CONCURRING:
PETER J. ECKERSTROM, Judge
JOSEPH W. HOWARD, Judge
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