State v. Hurley

Decision Date02 July 1987
Docket NumberNo. 6674,6674
Citation154 Ariz. 124,741 P.2d 257
PartiesSTATE of Arizona, Appellee, v. Darcy Dale HURLEY, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.

FELDMAN, Vice Chief Justice.

Darcy Dale Hurley (defendant) was convicted by a jury of seven counts armed robbery and one count aggravated assault. Hurley was sentenced under the enhancement provisions of A.R.S. § 13-604.02(A) 1 because the trial court determined that he was on release from confinement when he committed the offenses. Hurley contends that § 13-604.02(A) is unconstitutional unless interpreted to require proof beyond a reasonable doubt and trial to a jury, rather than a judge, to determine release status. He also contends that his sentence--three consecutive life terms--is unconstitutionally excessive.

We have jurisdiction of Hurley's direct appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4035.


On the evening of February 26, 1985, Hurley and an accomplice, William Alford Elliott, robbed three separate groups of people in east Phoenix hotel parking lots. Shortly before 8:00 p.m., the two men robbed an elderly couple. Brandishing a handgun, Hurley took the man's wallet, the woman's purse and jewelry, and then ordered the two to lie face-down between two vehicles on the asphalt as he and Elliott left. During the next hour, Hurley and Elliott robbed two businessmen as they were leaving their car. Hurley twice used the gun to strike one of the men in the face. After 9:00 p.m., Hurley, unaccompanied, robbed a different group of three men. Shortly following the third robbery, the police arrested Hurley and Elliott.

A jury convicted Hurley of seven counts armed robbery and one count aggravated assault. A.R.S. §§ 13-1904, -1902, -1901, -1204(A)(1) and (2), -1203(A)(1). The jury found all eight offenses dangerous because Hurley had used or exhibited a deadly weapon. A.R.S. § 13-604(F) and (G). 2 Following the conviction, the trial court convened to determine whether Hurley was on release from confinement for conviction of a felony offense on the date of the robberies. If so, the special sentencing provision of § 13-604.02(A) would apply. This would require mandatory life imprisonment without possibility of parole for twenty-five years. 3 Hurley objected to this procedure, arguing that release status should be determined by the jury, rather than by the trial judge. The state persuaded the court that it could determine release status. See State v. Turner, 141 Ariz. 470, 687 P.2d 1225 (1984).

The state then introduced certified copies of official documents showing that Hurley had prior convictions for endangerment, burglary, and escape and was on "mandatory release" 4 status from the Arizona Department of Corrections (DOC) when he committed the robberies. In addition, a parole officer testified that Hurley was to be on mandatory release status until June 20, 1985.

Finding that the state had proved beyond a reasonable doubt that Hurley committed the robberies while on release, the trial court imposed life sentences for each robbery count. § 13-604.02(A). The judge then found each robbery to be a discrete event and imposed the terms consecutively, stating that she had determined that Hurley is a danger to society and should be punished separately for each separate robbery. A.R.S. § 13-708. Therefore, Hurley, now 32 years old, received three consecutive life sentences and will not be eligible for parole until he is over one hundred years old. A.R.S. § 13-604.02(A).

Hurley has alleged a potpourri of federal constitutional violations. First, he contends that as interpreted by this court, § 13-604.02(A) violates the due process and equal protection clauses of the fourteenth amendment, the eighth amendment prohibition against cruel and unusual punishment, and the jury trial guarantee of the sixth amendment. In addition, he claims that the manner in which the sentencing statute and other criminal statutes were applied to him created an unconstitutionally excessive sentence. We address these issues in turn.

I. Constitutionality of A.R.S. § 13-604.02(A)
A. Statutory Background and Interpretation

Arizona's penal code creates a tiered system of punishment: courts in some cases may, and in other cases must, sentence offenders to longer prison terms based on specified conduct or status while committing an offense. See A.R.S. §§ 13-604, -604.01, -604.02. For instance, Arizona courts may sentence a first-time, "run-of-the-mill," unarmed robber to a maximum of five years with parole eligibility at half-time. A.R.S. §§ 13-1902, -701, -702, 41-1604.06(D). If that same person either uses or exhibits a deadly weapon or dangerous instrument or has a prior felony conviction, the court must sentence him from seven to twenty-one years with parole eligibility only after serving two-thirds time. A.R.S. §§ 13-1904, -604(B) and (G), -701, -702. If the person uses or exhibits a deadly weapon and has previously been convicted of a class 1, 2, or 3 felony involving the use or exhibition of a deadly weapon, the court may impose a sentence of up to twenty-eight years with parole eligibility at two-thirds time. A.R.S. § 13-604(G). Under the statute at issue in this case, if a person on probation, parole, work furlough, or any other release or escape from confinement for a felony conviction commits a felony while using or exhibiting a deadly weapon or dangerous instrument, the court must sentence him to life imprisonment without possibility of parole for twenty-five years. § 13-604.02(A).

Repeat offenders have been punished more severely in Arizona since the turn of the century. See 1901 Revised Statutes of Arizona Territory Title XVII §§ 618, 630, 631. Since then, unless a defendant admitted a prior conviction, this state required that prior convictions be found by a jury before punishment could be enhanced. Id. § 618. Our research did not reveal any constitutional basis for this requirement in Arizona; apparently the procedure was commonly accepted by many states, some believing that it was constitutionally mandated. 5

When the Arizona Legislature overhauled the penal code in 1978, it increased the punishment for felony offenders who intentionally or knowingly inflicted serious physical injury or used or exhibited a deadly instrument 6 during the commission of a felony. See A.R.S. § 13-704 (Supp.1978) (now § 13-604). At that time, the legislature combined all of the aggravating factors--being armed, seriously injuring someone, and having prior convictions--in § 13-704, which retained the traditional requirement that the trier of fact find the aggravating circumstance. A.R.S. § 13-704(K) (Supp.1978) (now § 13-604(K)). 7

In 1982, the legislature added the statute at issue here. The new special sentencing provision applied to those convicted of dangerous offenses while on probation, parole, work furlough, other release from confinement, or escape. A.R.S. § 13-604.02(A). Unlike § 13-604(K), the new statute did not expressly require that a jury make the factual determination as to release status. We therefore held that the status determination necessary to invoke § 13-604.02(A) could be made by the trial judge, using a preponderance of the evidence standard. See Turner, 141 Ariz. at 475, 687 P.2d at 1229; State v. McNair, 141 Ariz. 475, 485, 687 P.2d 1230, 1240 (1984); see also State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985). We concluded that the statuses enumerated in § 13-604.02(A) were not elements of a new offense, but rather aggravating factors; they were not used to determine guilt, but only to enhance the sentence once a defendant was found guilty of an underlying offense. Turner, 141 Ariz. at 475, 687 P.2d at 1229. Although a court may make the status determination necessary to invoke § 13-604.02(A), a jury still must make the determination of dangerousness. § 13-604(K); State v. Caldera, 141 Ariz. 634, 637-38, 688 P.2d 642, 645-46 (1984); see also State v. Hudson, 152 Ariz. 121, 126, 730 P.2d 830, 835 (1986).

Defendant raises an issue not considered in Turner or its progeny. He claims that our interpretation of § 13-604.02(A) is unconstitutional in light of the recent United States Supreme Court decision of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Basing his argument on the guarantees of jury trial and due process, defendant contends that the release status determination required to invoke A.R.S. § 13-604.02(A) substantially changes and increases the penalty, thereby creating a new crime so that the state is constitutionally required to prove release status to a jury beyond a reasonable doubt. 8

B. McMillan v. Pennsylvania

McMillan and other petitioners challenged the constitutionality of a Pennsylvania statute that provided for a mandatory minimum sentence of five years if the trial court found by a preponderance of the evidence that a defendant visibly possessed a firearm while committing one of seven enumerated felonies. 477 U.S. at ----, 106 S.Ct. at 2414. The statute did not authorize a greater maximum sentence than that otherwise allowed for the underlying offenses, but only increased the minimum sentence allowable. Id. The McMillan petitioners all were sentenced by trial courts to terms of less than five years on the ground that the statute was unconstitutional. In the United States Supreme Court, the petitioners argued that because the state was increasing their sentences solely because they visibly possessed firearms, possession became an element of the crime which the state had to prove to a jury beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (state must prove beyond a reasonable doubt every fact necessary to constitute the crime).


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