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State v. Roqumore12/4/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant was charged with aggravated driving while under the influence of an intoxicant (DUI) while his driver's license was suspended, canceled, revoked, or refused and driving with an alcohol concentration of.08 or greater while his license was suspended, canceled, revoked, or refused. The state alleged that appellant had one prior felony conviction. A jury found him guilty of both charges, and after a bench trial, the court found he had a prior felony conviction. The trial court sentenced appellant to concurrent, partially mitigated prison terms of four years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Appellant has filed a document that we have regarded as his supplemental brief.
As an arguable issue, counsel contends appellant was entitled to have a jury determine whether he had a prior felony conviction for the purpose of sentence enhancement. Counsel concedes that trial of prior convictions by a judge is permitted by A.R.S. § 13-604(P), but relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Castillo v. United States, 530 U.S. 120, 120 S. Ct. 2090, 147 L. Ed. 2d 94 (2000); and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), to question the constitutionality of that statute. Counsel argues that certain aspects of Apprendi call into question whether a judge may determine a prior conviction because it affects the range of sentence applicable to a defendant's case. Notwithstanding language in Apprendi suggesting that the Court believed its decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), might have been incorrectly decided, the Court ultimately made it clear that the existence of prior convictions need not be determined by a jury. Nevertheless, counsel suggests that " Apprendi dictates, minimally, a return to Arizona's practice of alleging and trying recidivist charges to the jury, the procedure that antedates Section 13-604(P)." We disagree.
As our supreme court recently noted in State v. Ring, 204 Ariz. 534, , 65 P.3d 915, (2003), in Apprendi, " he Court carefully distinguished its view that prior convictions are not elements of an offense and structured its holding to exclude prior convictions from its reach." The court further noted that the " Apprendi Court found no need to submit the question of prior convictions to the jury because, unlike other factors, prior convictions already had been established through proceedings incorporating procedural safeguards." Id. at . Indeed, the court in Ring addressed counsel's argument that Apprendi raises questions about the continued validity of Almendarez-Torres, stating:
Courts consistently have implemented both Apprendi and Almendarez-Torres. In cases decided after Apprendi, many defendants facing prior conviction sentence enhancements argued that Apprendi had either overruled or cast doubt upon Almendarez-Torres. Courts universally reject this argument and recognize that the two cases can be harmonized by construing Almendarez-Torres as the exception to Apprendi 's general rule.
Id. at . We have no authority for adopting a divergent view. Appellant was not entitled to a jury trial on the allegation of prior conviction.
In his supplemental brief, appellant asserts primarily a number of queries rather than cognizable claims on appeal. At times, appellant appears to be explaining the circumstances of his life that resulted in his
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