State v. Benenati

• Decision Date: 03 September 2002
• Docket Number: No. 2 CA-CR 1999-0064.,2 CA-CR 1999-0064.
• Citation: 203 Ariz. 235,52 P.3d 804
• Parties: The STATE of Arizona, Appellee, v. Marc Anthony BENENATI, Appellant.
• Court: Arizona Court of Appeals

52 P.3d 804

203 Ariz. 235

The STATE of Arizona, Appellee, v. Marc Anthony BENENATI, Appellant.

No. -0064.

Court of Appeals of Arizona, Division 2, Department A.

September 3, 2002.

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and Kerri L. Chamberlin, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Alex Heveri, Tucson, for Appellant.

OPINION

BRAMMER, Presiding Judge.

? 1 A jury found appellant Marc Benenati guilty of two counts of unlawful sale of a narcotic drug. After finding he had three prior convictions and had committed these offenses while on release for a separate felony offense, the trial court sentenced Benenati to concurrent, presumptive, 17.75-year prison terms, including a two-year mandatory enhancement pursuant to A.R.S. ? 13-604(R). Benenati raises three issues on appeal: (1) the trial court erred in responding ex parte to a jury question; (2) the trial court violated his right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in finding, instead of permitting the jury to do so, that he was on release at the time he committed these offenses; and (3) the trial court erred in finding that his out-of-state convictions constituted historical prior felony convictions. We find no merit to his first and third claims but vacate Benenati's two-year sentence enhancement under ? 13-604(R) and remand the case for further proceedings because we agree that Apprendi requires that any fact, other than the fact of a prior conviction, exposing a defendant to a punishment greater than that otherwise permissible must be determined by a jury.

Background

? 2 We view the facts in the light most favorable to sustaining the verdicts. State v. Carlos, 199 Ariz. 273, 17 P.3d 118 (App.2001). On September 16, 1996, an officer of the University of Arizona Police Department assigned to the Tucson Metropolitan Area Narcotics Trafficking Interdiction Squad responded to a message. The officer then met with Benenati and purchased one-sixteenth ounce of cocaine. After receiving another message the next day, the officer purchased a second one-sixteenth ounce of cocaine from Benenati.

Discussion

I. Trial court's communication with jurors

? 3 Benenati contends the trial court erred in responding to a juror's question during deliberations, arguing the communication occurred outside his presence and without his knowledge or consent. "The general rule in Arizona is that reversible error occurs when a trial judge communicates with jurors after they have retired to deliberate, unless defendant and counsel have been notified and given an opportunity to be present." State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56 (1980) (footnote omitted). However, if "it may be said, beyond a reasonable doubt, that there was no prejudice to the defendant, a communication between judge and jury outside the presence of defendant and counsel is harmless error." Id. at 241, 609 P.2d at 56; see also State v. Rich, 184 Ariz. 179, 907 P.2d 1382 (1995)

.

? 4 After deliberations had begun, the trial court received four questions from the jury about the circumstances of the drug sales and the procedures the officers had used to identify Benenati. The court met with counsel and, with their consent, responded as follows: "All the evidence has been presented to you. In reaching your verdict, you must rely on your collective recollection of the evidence." After the jury rendered its verdicts, the court told counsel it had received a fifth question from the jury and, "[s]ince you were in trial," had "answered it the same way as the others." That question also referred to the officer's identification of Benenati.

? 5 In answering the jury's last question as it did, the court neither explicitly nor implicitly commented on the evidence. See State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975)

; State v. Streyar, 119 Ariz. 607, 583 P.2d 263 (App.1978). The communication essentially consisted of a refusal to answer the jury's question and a restatement of the court's instruction that the jury was charged with determining the facts. Although the trial court's action gave the parties "no opportunity to object or voice their concerns regarding the judge's procedure until it [was] too late," Perkins v. Komarnyckyj, 172 Ariz. 115, 118, 834 P.2d 1260, 1263 (1992), we are unable to conclude that Benenati suffered any prejudice from it. See State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983); State v. Davis, 117 Ariz. 5, 570 P.2d 776 (App.1977) (trial court's ex parte communication to jurors not prejudicial because it merely restated jury instruction). Accordingly, any error the court might have committed was harmless. See Mata.

II. Release status finding

? 6 Benenati next claims he is entitled to relief under Apprendi, arguing his right to a jury trial under the Sixth Amendment of the United States Constitution and article II, ? 23, of the Arizona Constitution was violated when the trial court, not the jury, determined his release status at the time he committed these offenses. We agree.

? 7 Benenati relies on State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App.2001), in which Division One of this court held that, pursuant to Apprendi, a defendant's release status must be determined by a jury for purposes of enhancement under ? 13-604(R).¹ In doing so, Division One concluded that Apprendi had effectively overruled a contrary rule announced by our supreme court in State v. Hurley, 154 Ariz. 124, 741 P.2d 257 (1987). But see State v. Cox, 201 Ariz. 464, 37 P.3d 437 (App.2002)

(suggesting Hurley remains good law). Although we are not bound by Gross, we may find it persuasive "`unless we are convinced that [it is] based upon clearly erroneous principles, or conditions have changed so as to render [it] inapplicable.'" Danielson v. Evans, 201 Ariz. 401, ? 28, 36 P.3d 749, ? 28 (App.2001), quoting Castillo v. Industrial Comm'n, 21 Ariz.App. 465, 471, 520 P.2d 1142, 1148 (1974) (alterations in Danielson). Citing Hurley, the state urges us to reject Gross and hold that a defendant's release status is suitable for a trial court's determination because it is merely a sentence-enhancing factor.² If, however, Apprendi governs, release status must be found by the fact-finder. Whether Benenati's release status should have been determined by a jury is a question of law subject to our de novo review. See Gross.

? 8 In Apprendi, the Supreme Court addressed New Jersey's "hate crime" law, which increased the maximum sentencing range for certain offenses if the sentencing court found, by a preponderance of the evidence, that the offense had been racially motivated. The defendant there admitted he had fired several bullets into the home of an African American family in his neighborhood. He later pleaded guilty to offenses that carried penalties of three to ten years in prison. After an evidentiary hearing, the trial court concluded that the crime had been racially motivated and sentenced Apprendi to concurrent prison terms, the longest of which was twelve years.

? 9 In reversing the judgment, the Supreme Court found that Apprendi's sentence enhancement had been based only on his motivation in firing the bullets, a fact "perhaps as close as one might hope to come to a core criminal offense `element.'" Apprendi, 530 U.S. at 493, 120 S.Ct. at 2364, 147 L.Ed.2d at 457. The Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. The Court further stated: "`[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" Id. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455, quoting Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 1228, 143 L.Ed.2d 311, 332 (1999) (Stevens, J., concurring)

.

? 10 To the extent differing views have emerged about Apprendi's reach, the Court has now settled the matter in Ring v. Arizona, ___ U.S. ____, ____, 122 S.Ct. 2428, 2439, 153 L.Ed.2d 556, ____ (2002), in which it reiterated that, "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact?€”no matter how the State labels it?€”must be found by a jury beyond a reasonable doubt." In fact, the Court emphasized that "the Sixth Amendment does not permit a defendant to be `expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.'" Id. at ____, 122 S.Ct. at 2432, quoting Apprendi, 530 U.S. at 483,

120 S.Ct. at 2359,

147 L.Ed.2d at 450.

? 11 The Court's decisions in Apprendi and Ring rested not on the ultimate imposition of a sentence greater than otherwise permissible, but, rather, on the effect a factual finding has on a defendant's exposure to such a sentence. For example, in finding unconstitutional Arizona's capital sentencing scheme, the Court in Ring noted that, under that scheme, "[i]n effect, `the required finding [of an aggravating circumstance] expose[d Ring] to a greater punishment than that authorized by the jury's guilty verdict."' ___ U.S. at ___, 122 S.Ct. at 2440, quoting Apprendi, 530 U.S. at 494,

120 S.Ct. at 2365,

147 L.Ed.2d at 457. Moreover, the Court made no distinction between a sentencing judge's determination of aggravating factors related to the commission of the offense and those factors wholly unrelated to it. Compare A.R.S. ? 13-703(G)(3), (4), and (5) with ? 13-703(G)(1), (2), and (7). Accordingly, we must be mindful to not unduly restrict defendants' rights to a jury determination of any facts that expose them to sentences greater than otherwise prescribed.

? 12 We therefore disagree with the state that our discussion is...