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State v. Alire1/28/2005
at ___, 124 S.Ct. at 2537, 159 L.Ed. 2d at ___ (articulating right to jury trial as to those facts necessary to trigger sentencing range employed by court); see also Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 2410, 153 L.Ed. 2d 524, __ (2002) (not all facts affecting defendant's punishment are elements subject to Constitution's jury trial requirement).
We therefore conclude that a trial court's consideration of additional aggravating circumstances not found by the jury in determining a defendant's sentence does not violate the Sixth Amendment to the United States Constitution so long as (1) at least one aggravating circumstance is Blakely-compliant or exempt and (2) the court expressly has found that no mitigating circumstances exist. Once those two things occur, the court's consideration of any additional aggravating circumstances becomes irrelevant to the determination of the maximum sentence constitutionally available. Because the trial court found there were no mitigating circumstances and found one Blakely-compliant aggravating factor, Alire was constitutionally eligible for the aggravated sentences he received.
Alire also argues that the trial court erred by awarding him presentence incarceration credit on one count only. The state concedes that Alire is entitled to the credit on both counts of his concurrent sentences, see A.R.S. § 13-709(B); State v. De Passquallo, 140 Ariz. 228, 229, 681 P.2d 380, 381 (1984), and asks that we correct the trial court's determination without remanding the case. We therefore order that the commitment order be amended so as to clarify that Alire is entitled to presentence incarceration credit of 104 days as to both of his concurrent sentences.
Affirmed and amended.
PETER J. ECKERSTROM, Judge
CONCURRING:
JOSEPH W. HOWARD, Presiding Judge
J. WILLIAM BRAMMER, JR., Judge
Page 1 2 3 4 Arizona DUI Attorneys
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