State v. Allie

• Decision Date: 15 November 1985
• Docket Number: No. 6233,6233
• Citation: 147 Ariz. 320,710 P.2d 430
• Parties: STATE of Arizona, Appellee, v. John Tim ALLIE, Appellant.
• Court: Arizona Supreme Court

Page 430

710 P.2d 430

147 Ariz. 320

STATE of Arizona, Appellee, v. John Tim ALLIE, Appellant.

No. 6233.

Supreme Court of Arizona, In Banc.

Nov. 15, 1985.

Robert K. Corbin, Atty. Gen. by Bruce Ferg, Asst. Atty. Gen., Tucson, for appellee.

D. Jesse Smith, Tucson, for appellant.

HAYS, Justice.

After a jury trial, defendant, John Tim Allie, was convicted of one count of burglary in the first degree, A.R.S. § 13-1508, and one count of armed robbery, A.R.S. § 13-1904. Because defendant committed these crimes while on probation, the trial court sentenced defendant to life imprisonment without possibility of parole for twenty-five years on each count, A.R.S. § 13-604.01. The sentences were to run concurrently with each other, but consecutively to the sentence reimposed upon revocation of his probation. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4035. We affirm.

The facts follow. On March 5, 1983, at approximately 11:45 pm, defendant and his accomplice, James Bushey, robbed a Shakey's Pizza Parlor in Tucson, Arizona. Both men wore masks. Defendant was armed with a knife and Bushey had a gun. The two men forced the employees to lie on the floor and then bound them with tape. Defendant and his accomplice proceeded to take between $2,000 and $2,500 before fleeing the restaurant.

After several weeks of investigation, the police obtained the confession of Michael Hart, an employee working at the restaurant that night. Hart admitted that he had been the "inside man" in the robbery and had only pretended to be a victim. Hart also identified defendant and Bushey as the two men who robbed the restaurant.

Defendant raises several issues on appeal.

I. CONSTITUTIONALITY OF A.R.S. § 13-604.01

Defendant raises numerous issues regarding the constitutionality of A.R.S. § 13-604.01.

A. Ex Post Facto

Defendant claims that A.R.S. § 13-604.01, ¹ in its application to the present case, violates the ex post facto clause of the United States Constitution, art. I, § 9. A.R.S. § 13-604.01 mandates a life sentence for a person convicted of a felony involving the use of a deadly or dangerous instrument while on probation for a felony conviction. This statute was enacted after the defendant was placed on probation, but prior to his committing the crimes herein. Defendant thus argues that application of this statute, to him, retroactively increases his sentence of probation to life imprisonment. We recently considered the same allegation and concluded that A.R.S. § 13-604.01 does not constitute an ex post facto law.

We recognize that the Arizona Legislature may not enact a law which imposes any additional or increased penalty provided for a crime after its commission. (Citations omitted). A.R.S. § 13-604.01, however, does not increase defendant's sentence on his first conviction. His probationary sentence did not become more onerous. The probationary period did not increase, the conditions of his probation were not changed and his compliance with the conditions was not made more difficult. Additionally, no increased or additional penalty on the crime underlying his probation was imposed due to § 13-604.01 (footnote omitted). The enactment of A.R.S. § 13-604.01 in 1982 merely put defendant on notice of the consequences of any further criminal convictions. See State v. Pendergraft, 124 Ariz. 449, 604 P.2d 1160 (App.1979) (A.R.S. § 13-604 did not punish defendant for past conduct but merely notified him of increased punishment for future felony); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (enhanced punishment for repeat offenders, not additional penalty for earlier crime but stiffened penalty for latest crime).... We find no ex post facto violations.

State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985). Defendant has presented nothing to warrant reassessment of our position.

B. Equal Protection

Defendant also argues that A.R.S. § 13-604.01 violates his right to equal protection by mandating a life sentence for those criminals within the statute, but not imposing equal punishment upon those persons outside the scope of the statute who commit similar crimes. To accept the defendant's argument, we must find that this particular legislative classification "bears no rational relationship to a legitimate state purpose." State v. Noriega, 142 Ariz. 474, 487, 690 P.2d 775, 788 (1984). This court has repeatedly found otherwise:

The legislature could rationally conclude that a felon who commits an armed offense recently after release from confinement for another felony, and in violation of the conditions of this release from confinement, has simply not been rehabilitated. ... It is also rational to protect the public by deterring felons on release from confinement from committing armed offenses.

Id., State v. Williams, 144 Ariz. 433, 444, 698 P.2d 678, 689 (1985). Therefore, we find that the statute does not violate the basic concepts of equal protection.

C. Cruel and Unusual Punishment

Defendant also maintains that his sentence constitutes cruel and unusual punishment under the eighth and fourteenth amendments to the United States Constitution. In determining whether a sentence is unconstitutionally excessive, the Supreme Court set out a four-part test in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637, 649 (1983). This court must consider: (1) the gravity of the offense; (2) the harshness of the penalty; (3) the sentence imposed on others in the same jurisdiction; and (4) the sentence imposed on similarly situated defendants in other jurisdictions. See State v. Cocio, 147 Ariz. at 282, 709 P.2d at 1341.

It should be noted that this court recently engaged in such an analysis in two similar cases and upheld the sentence in each instance. State v. McNair, 141 Ariz. 475, 687 P.2d 1230 (1984); State v. Noriega, supra.

First, as to the gravity of the offense, we find that defendant's crimes were sufficiently serious to warrant increased punishment. Appellant places emphasis on the fact that this was an "inside job" so that the "ordinary dangers attendant on a garden variety armed robbery were not present." Specifically, appellant claims that he and his accomplice, knowing there would be no resistance from the employees, never actually placed the victims in any danger. Furthermore, appellant claims that he carried only a knife, not a gun (his accomplice carried a gun). He maintains that since "guns are more dangerous than knives," the punishment should be less severe. We find defendant's attempt to distinguish the crime herein from a "garden variety" armed robbery unpersuasive. This court has repeatedly held that the "absence of actual injury is scarcely an accurate measure of the danger appellant poses to society." State v. Noriega, 142 Ariz. at 487, 690 P.2d at 788. Even though no physical injuries were suffered and defendant claims the victims were in no actual danger, we cannot foresee how he would have reacted had any of the victims refused to cooperate. Defendant's threatening conduct could very easily have led to serious injury or death. State v. Garcia, 141 Ariz. 97, 100, 685 P.2d 734, 737 (1984). As to defendant's assertion that his use of a knife as opposed to a gun should somehow affect his sentence, this court has held such a distinction to be irrelevant. State v. Williams, 144 Ariz. at 445, 698 P.2d at 690.

Second, the sentence imposed upon defendant is not unconstitutionally harsh. Where there is a legislatively prescribed penalty, we do not determine whether it is fair in our eyes; rather, we need only consider if it violates the eighth amendment as being unduly harsh. State v. Garcia, 141 Ariz. at 100, 685 P.2d at 737. In both McNair and Noriega, supra, we did not find the life sentences imposed to be excessive where both defendants were repeat offenders convicted of dangerous crimes while on probation. These same factors are present here. Defendant was convicted of armed robbery and burglary and was on probation from two prior felony convictions at the time he committed the crimes herein.

Third, we compare defendant's sentence to those for other or similar crimes in this jurisdiction. Life sentences imposed under A.R.S. § 13-604.01 have consistently survived eighth amendment scrutiny in Arizona. E.g., Cocio, supra, and cases cited therein. We see no reason to repeat the analysis found in these cases. We conclude that defendant's sentence is not disproportionate in comparison to other sentences for similar crimes in Arizona.

Fourth, defendant's sentence is proportional to sentences imposed on similarly situated criminals in other jurisdictions. For example, a first conviction for armed robbery may result in a six to forty year sentence in Arkansas (Ark.Stat.Ann. § 41-2102, 41-901); thirty years to life in Florida (Fla.Stat.Ann. §§ 775.082, 812.13); ten to thirty years, or life in Missouri (Mo.Rev.Stat. § 558.011, 569.020); ten years to life in Tennessee (Tenn.Code Ann. § 39-2-501); and five to ninety-nine years or life in Texas (Tex.Penal Code Ann. § 29.03, 12.32). These statutes do not take into account the existence of prior convictions or the fact that a defendant was on probation at the time he committed the offense. Thus, we find that defendant's sentence is not disproportionate to what he might have received in another jurisdiction.

Finally, defendant raises two other points in connection with his eighth amendment argument. First, defendant maintains that A.R.S. § 13-604.01 punishes him because of his probationary status, and therefore constitutes cruel and unusual punishment in violation of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Robinson, the United States Supreme Court held that a state law punishing a person solely because he was a narcotics addict was unconstitutional. Previously, this court has distinguished Robinson from cases where "status" arguments were made by prisoners...