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Newkirk v. Nothwehr6/23/2005
encing enhancement does not create a separate offense calling for a separate penalty). Petitioner's attempt to liken an allegation of a prior conviction to a common-law offense that retains the right to a jury trial under Derendal - because it enjoyed the right to jury trial before Arizona's statehood - fails.
According to petitioner, because Quinonez acknowledges that prior convictions were tried to juries from 1887 to 1996, 194 Ariz. at 19, 5, 976 P.2d at 268, and Derendal holds that a defendant is entitled to a jury if the crime was jury eligible at the time of statehood, 209 Ariz. at 425, 36, 104 P.3d at 156, defendants retain the right to a jury determination of prior convictions. Derendal, however, did not address sentencing enhancements or whether an allegation of prior conviction is jury eligible. Rather, it only directed trial courts in determining whether a misdemeanor offense is jury eligible. Id. at 425-26, 40, 104 P.3d at 156-57.
As Quinonez and the cases that court cites make clear, the right to a jury trial on an allegation of prior conviction was statutory under both the territorial penal code and Arizona Revised Statutes until 1996. Thus, an allegation of prior conviction has no common-law antecedent that would require a jury under Derendal.
In Blakely v. Washington, 124 S.Ct. 2531, 2536 (2004) (citing Apprendi, 530 U.S. 466), the United States Supreme Court reaffirmed that "the fact of a prior conviction" need not be found by a jury to satisfy the United States Constitution. Apprendi notes that, when the sentencing enhancement is the fact of prior conviction, "the certainty that procedural safeguards attached to any 'fact' of prior conviction . . . mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a 'fact' increasing punishment beyond the maximum of the statutory range." 530 U.S. at 488 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
Petitioner has not established the right to a jury trial on an allegation of a prior conviction, and the trial court did not err in denying his request for a jury trial on that basis.
CONCLUSION
For the foregoing reasons, we accept special action jurisdiction and deny relief.
JON W. THOMPSON, Judge
CONCURRING:
DONN KESSLER, Presiding Judge
PATRICK IRVINE, Judge
The above-entitled matter was duly submitted to the Court. The Court has this day rendered its opinion.
IT IS ORDERED that the opinion be filed by the Clerk. IT IS FURTHER ORDERED that a copy of this order together with a copy of the opinion be sent to each party appearing herein or the attorney for such party and to The Honorable Richard Nothwehr, Commissioner.
DATED this day of _________, 2005.
JON W. THOMPSON, Judge
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