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State v. Dewakuku6/29/2004
We hold that a defendant charged with a dangerous offense alleged to have been committed while the defendant was on release from confinement after being convicted of a felony offense pursuant to Arizona Revised Statutes (A.R.S.) section 13-604.02(A) (2001) is entitled to a trial by jury on the issue of release. For the following reasons, we affirm the defendant's conviction. Because we find that his admission to his release status was not knowing and voluntary, we vacate the defendant's sentence and we remand for further proceedings consistent with this decision.
FACTUAL AND PROCEDURAL HISTORY
2 "We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant." State v. Fontes, 195 Ariz. 229, 230, 2, 986 P.2d 897, 898 (App.1998) (quoting State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App.1997)).
*439 3 The defendant and a companion approached two women, R.N. and E.O., who were sitting in a neighborhood park. The women were relaxing after playing basketball. The lights on the court were off, but there were lights on in other areas of the park. The defendant asked the women if either knew a man named Kerwin. R.N. said she did. However, when asked by the defendant about Kerwin's whereabouts, R.N. said she did not know. After several failed attempts to obtain Kerwin's location from R.N., the defendant pulled out a knife and held it to R.N.'s neck. After several seconds, the defendant let her go and he and his companion left. R.N. and E.O. left the park and contacted the police. The defendant was promptly arrested and charged by information with aggravated assault, a class 3 felony. See A.R.S. § 13- 1203(A)(2) (2001), -1204(A)(2), (B) (Supp.2003). [FN1] The State further alleged that the offense was dangerous. See A.R.S. § 13-604(P) (Supp.2003).
FN1. Wherever possible, this decision cites to the current versions
of the Arizona Revised Statutes, which are essentially the same as those in effect at the time the offense was committed.
4 Prior to trial, the State amended the information to allege three historical prior felony convictions for aggravated assault, misconduct involving weapons, and possession of drug paraphernalia. Pursuant to A.R.S. § 13-604.02(A), the State also alleged that the defendant committed the present assault while on release from the prior felony conviction for possession of drug paraphernalia. The jury found the defendant guilty of aggravated assault and also found that the offense was dangerous. In exchange for the State's agreement to withdraw its allegation of the defendant's three historical prior felony convictions, the defendant agreed to admit the State's allegation that he was on release at the time of the assault. There was no written agreement in compliance with Rule 17.4(b) of the Arizona Rules of Criminal Procedure. The defendant admitted that he had been released to community service and that he had absconded. The trial court accepted the defendant's admission in open court, found that he was on release at the time he committed the assault, and sentenced him to ten years' "flat time" imprisonment. See A.R.S. §§ 13- 604(I) (Supp.2003), -604.02(A). The defendant filed a timely notice of appeal. This Court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and -4033 (2001).
ISSUES
5 The defendant raises the following issues on appeal:
1) Whether the sentencing provision contained in A.R.S. § 13-604.02(A), which allows a twenty-five percent increase in the statutory maximum based on the trial court finding two substantial aggravating circumstances, violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (
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