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People v. Martinez9/22/2005
ort of aggravated sentence); Freeze v. State, 827 N.E.2d 600 (Ind. Ct. App. 2005)(under Apprendi, trial court could rely on prior juvenile adjudications and misdemeanor convictions as an aggravator); State v. Kendall, 58 P.3d 660, 668 (Kan. 2002)(use of two prior DUI convictions to change classification of instant DUI from misdemeanor to felony fell "squarely within the prior conviction exception of Apprendi"); State v. Weldele, 69 P.3d 1162 (Mont. 2003) (enhanced sentence for DUI based solely on three prior misdemeanor DUIs did not violate Apprendi); State v. Clarke, 103 P.3d 262 (Wash. Ct. App. 2004)(review granted July 12, 2005) (basing enhanced sentence on prior misdemeanor convictions did not violate Blakely or Apprendi).
Cases that have declined to allow sentence enhancement based on prior misdemeanor convictions have focused on the fact that the prior convictions were unrelated to the offense for which the defendant was being sentenced. See Edwards v. State, 822 N.E.2d 1106 (Ind. Ct. App. 2005)(reliance on defendant's prior criminal history insufficient to satisfy Apprendi and Blakely where criminal history consisted of only one unrelated misdemeanor battery conviction); Traylor v. State, 817 N.E.2d 611 (Ind. Ct. App. 2004) (single misdemeanor battery conviction five years before instant conviction for drug dealing and nuisance was insufficient to enhance sentence).
Here, the convictions on which the trial court relied in imposing an aggravated sentence were a 1994 conviction for driving while ability impaired, for which defendant was sentenced to 90 days in jail; an October 1999 conviction for driving while ability impaired; and a February 2000 conviction for driving under the influence , for which defendant was sentenced to 180 days in jail. These offenses all involved the same type of conduct as that underlying the offense for which defendant was being sentenced. In these circumstances, reliance on prior misdemeanor convictions to enhance defendant's sentence did not violate his rights under Apprendi and Blakely.
Further, contrary to defendant's contention, the fact that the offenses resulting in the last two convictions were committed after he committed the present offense did not preclude the trial court from relying on them. See Lopez, supra, 113 P.3d at 730 (sentencing court could properly rely on defendant's vehicular homicide conviction in imposing discretionary aggravated sentence, even though the vehicular homicide itself occurred after the possession offense, where convictions for the homicide were entered before the possession sentencing). The statutory subsections on which defendant relies, § 18-1.3-401(8)(a)(II)-(VI), C.R.S. 2005, do not warrant a contrary conclusion. These provisions refer to mandatory aggravators that apply if they occurred "at the time of the commission of the felony" for which the defendant is being sentenced. There is no such limitation in regard to factors on which a sentencing court may rely in imposing a discretionary aggravated sentence under § 18-1.3-401(6).
Thus, the sentencing court did not violate defendant's constitutional rights by relying on defendant's misdemeanor convictions in support of an aggravated range sentence. We therefore affirm the order denying post-conviction relief, although we do so on grounds other than those relied on by the trial court. See People v. Huynh, 98 P.3d 907 (Colo. App. 2004)(appellate court may affirm based on reasoning different from that of trial court).
The order is affirmed.
JUDGE GRAHAM and JUDGE ROMÁN concur.
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