State v. Prentiss, CR-88-0148-PR

• Decision Date: 09 November 1989
• Docket Number: No. CR-88-0148-PR,CR-88-0148-PR
• Citation: 786 P.2d 932,163 Ariz. 81
• Parties: STATE of Arizona, Appellee, v. Suzanne M. PRENTISS, Appellant.
• Court: Arizona Supreme Court

Page 932

786 P.2d 932

163 Ariz. 81

STATE of Arizona, Appellee, v. Suzanne M. PRENTISS, Appellant.

No. CR-88-0148-PR.

Supreme Court of Arizona, In Banc.

Nov. 9, 1989.

Reconsideration Granted in Part and

Denied in Part and Opinion Modified

Feb. 15, 1990. ^*

Frederick S. Dean, Tucson City Atty. by Christopher L. Straub, M.J. Raciti and R. William Call, Asst. City Prosecutors, Tucson, for appellee/respondent.

Law Office of John A. O'Brien, P.C. by Russell E. Hughes, Tucson, for appellant/petitioner.

Roderick G. McDougall, Phoenix City Atty. by David A. Winsten and Samuel K. Lesley, Asst. City Prosecutors, Phoenix, for amicus curiae.

CLABORNE, Court of Appeals Judge, Department A.

We review a decision of the court of appeals which affirmed defendant's conviction and sentence. State v. Prentiss, 161 Ariz. 65, 775 P.2d 1129 (App.1988). We have jurisdiction in accordance with article 6, section 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 and Rule 31.19, Arizona Rules of Criminal Procedure.

The facts are not in dispute. Ms. Suzanne Prentiss (defendant) was charged in Tucson City Court with operating a motor vehicle on August 7, 1986, while she was under the influence of intoxicating liquor pursuant to A.R.S. § 28-692(A) or while there was 0.10% or more alcohol concentration in her blood pursuant to A.R.S. § 28-692(B).

On November 6, 1986, Prentiss was tried before a jury and found guilty of operating a motor vehicle while there was 0.10% or more of alcohol concentration in her blood or breath (A.R.S. § 28-692(B)).

On November 21, 1986, Prentiss was sentenced to serve nine months unsupervised probation; pay a fine in the amount of $250.00; enroll in an impaired driver's program and pay the fee for that program in the amount of $75.00. Her driver's license was suspended for ninety days.

The prosecutor did not allege "alternative sentencing provisions" (mitigating circumstances) at the time of sentencing pursuant to A.R.S. § 28-692.01(C) which provides:

Notwithstanding subsection B of this section, the judge may sentence a person who is convicted of a violation of § 28-692 pursuant to subsection D of this section instead of pursuant to subsection B of this section if the prosecutor alleges the provisions of this subsection and the judge finds that such alternative sentencing will serve the best interests of the state, and that the person:

1. Has not been convicted of one or more violations of § 28-692 within sixty months of the date of commission of the acts out of which the charges arose. The dates of commission of the offense are the determining factor in applying this paragraph.

2. Was not driving with 0.20 or more alcohol concentration in his blood or breath. In this paragraph "alcohol concentration" means grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of breath.

3. Did not cause serious physical injury, as defined in § 13-105, paragraph 30, to another person during the same event or course of conduct which resulted in the conviction for which the person is to be sentenced.

(emphasis added).

Although Prentiss had not been convicted of an A.R.S. § 28-692 violation within sixty months of the date of the charge, had not been driving with 0.20% or more by weight of alcohol in her blood, and caused no personal injury as a result of her driving The prosecutor refused to "allege" the provisions of A.R.S. § 28-692.01(C) because Prentiss rejected the state's plea and elected to exercise her right to a trial. See appendix. The policy of the city prosecutor's office was to allege the statutory mitigating circumstances only if a guilty plea agreement had been executed or agreed to by the defendant. Both the prosecutor and the amicus curiae City of Phoenix take the position that the statute's intent is to facilitate favorable prosecutorial plea bargaining. They contend this policy provides for prosecutorial and judicial economy because a trial on the merits is avoided.

[163 Ariz. 83] the prosecutor refused to "allege" these circumstances. A prosecutorial allegation is required before the court may apply A.R.S. § 28-692.01(D). ¹

The defendant appealed her conviction to the superior court. Judge Fahringer affirmed the conviction and remanded the matter to the municipal court for resentencing. The superior court said:

With respect to the Appellee's Cross Appeal, State vs. Jones, 142 Az. 302 [sic] (App.1984), makes clear that it is unconstitutional to limit a judge's ability to impose a mitigated sentence to instances in which the prosecutor makes a post-trial "recommendation." Jones is not, however, dispositive of the difficult question presented in this case--the constitutionality of a statute requiring a prosecutorial "allegation" of the applicability of A.R.S. § 28-692.01(C) before a mitigated sentence may be imposed. If the word "allegation" is interpreted as meaning a formal pretrial pleading, which is the interpretation this Court places on it, this Court is unable to find any meaningful distinction between such a procedure and the well established procedure of the prosecutorial filing of pretrial allegations of dangerous nature, prior convictions, and the commission of offenses while on bond....

The Trial Court abused its discretion in sentencing the defendant pursuant to A.R.S. § 28-692.01(D) absent an appropriate allegation by the prosecutor.

Minute entry dated 8/27/87.

The defendant appealed, and division two of the court of appeals affirmed the superior court. The appellate court said:

We see no distinction between allegations of prior convictions or of the dangerous nature of an offense which, if proven, mandate a prison sentence and the failure to allege mitigating circumstances which then mandates a one-day jail sentence. That form of prosecutorial power is not unconstitutional. State v. Jones, [sic] supra, stands for no more than that a prosecutor cannot control sentencing after conviction, not that his charging decision may not control sentencing discretion.

State v. Prentiss, 161 Ariz. 65, 66, 775 P.2d 1129, 1130 (App.1988). It is with this characterization that we disagree.

The issues raised by defendant concern whether A.R.S. § 28-692.01(C) violates the constitutional concepts of separation of powers, equal protection and/or substantive due process. We believe the essence of the argument concerns the division of the power to make law and the power to execute that law once made.

A.R.S. § 28-692.01(C) limits the use of mitigating circumstances in criminal sentencing by the judicial branch (municipal judge) to those instances when the specific mitigating circumstances have been exclusively alleged by the executive branch (the We believe there is a substantial difference between the legislature's right to fix a sentencing range, and thereby limit sentencing discretion, and the legislature's right to forbid the court's examination of the nature of the act committed and the person committing it once judicial discretion is allowed. See State v. Garcia, 141 Ariz. 97, 104, 685 P.2d 734, 741 (1984) (Feldman, J. dissenting).

[163 Ariz. 84] prosecutor). This statute prohibits a judge from using those mitigating circumstances when sentencing a first offense violator of A.R.S. § 28-692 unless alleged by the prosecutor.

The constitutional provision which governs the allocation of governmental power in our state is set forth in article 3 of the Arizona Constitution. It provides:

The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.

At least two views may be advanced concerning our constitution and the separation of powers provision. One view is that the provision performs two functions: allocation of power among several (three) components of government which compete for power and, secondly, the protection of individual liberties. The second view is simply that article 3 is part of an overall constitutional scheme to protect individual rights and that the "power allocation" is but a part of that overall objective. We seem to follow this latter view. Mecham v. Gordon, 156 Ariz. 297, 751 P.2d 957 (1988). See Lee, Preserving Separation of Powers: A Rejection of Judicial Legislation Through the Fundamental Rights Doctrine, 25 Ariz.L.Rev. 805 (1983).

As we have previously recognized, sentencing power has been divided among the three branches of government.

The court in Pakula, supra, pointed out that control of the sentencing process was balanced among the legislative, executive, and judicial branches of government:

" * * * The legislature sets the sentencing limits and distributes the authority to control the sentence, within those limits, in the courts, correctional authority, and the parole board. When a trial court attempts to mix periods of state imprisonment followed by probation it places the court in possible conflicts with the executive department since the control of the length and type of confinement has been granted to that department. The parole board can grant parole with supervision in the corrections department, and the efforts of the executive department in a rehabilitation effort may not be in harmony with the objectives of the court's probation department. * * * "

State v. Jones, 124 Ariz. 24, 26, 601 P.2d 1060, 1062 (1979) (quoting State v. Pakula, 113 Ariz. 122, 125, 547 P.2d 476, 479 (1976)) (citation omitted).

Although article 3 seems to require a strict compartmentalization of the use of power, practicality clearly dictates otherwise. For example, when the legislature was faced with creating a new groundwater code, it provided for procedural rules, the appointment of masters, and other procedural requirements to...