State v. Provenzino

• Decision Date: 26 February 2009
• Docket Number: No. 1 CA-CR 07-0901.,1 CA-CR 07-0901.
• Citation: 212 P.3d 56,221 Ariz. 364
• Parties: STATE of Arizona, Appellee, v. Robby Glen PROVENZINO, Appellant.
• Court: Arizona Court of Appeals

212 P.3d 56

221 Ariz. 364

STATE of Arizona, Appellee, v. Robby Glen PROVENZINO, Appellant.

No. 1 CA-CR 07-0901.

Court of Appeals of Arizona, Division 1, Department D.

February 26, 2009.

Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and William Scott Simon, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

OROZCO, Judge.

¶ 1 Robby Glen Provenzino (Defendant) was charged with two counts of forgery, each a class 4 felony. He was convicted on both counts and sentenced to ten years in prison. On appeal of his convictions and sentences, Defendant contends the trial court: 1) erred in selecting an eight-person jury rather than a twelve-person jury, 2) did not adequately specify that his sentences were to run concurrently, and 3) imposed an illegal sentence because the prior felonies found to be historical prior felony convictions (HPFCs) could not be used to enhance his sentence. We have jurisdiction pursuant to the Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12.120.21.A.1 (2003), 13-4031 (2001) and — 4033.A (2001). We affirm the eight-person jury verdicts and remand for clarification of Defendant's sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2 Defendant attempted to cash a check made out to another individual for $589.33 at a store in Phoenix. He had an Arizona driver's license identifying himself as the other individual. Store employees became suspicious and called police because the check and the ID were "fuzzy" and the logo on the driver's license was off center. Defendant admitted to a police officer who responded that he attempted to cash a forged check because he was down on his luck and needed money for rent. Defendant was not present at trial. His attorney argued that the State produced insufficient evidence of Defendant's intent. An eight-member jury unanimously convicted Defendant after a one-day trial.

¶ 3 Before trial, Defendant's attorney requested a twelve-person jury, reasoning that Defendant faced a possible sentence of thirty years in prison, which would entitle him to a twelve-person jury pursuant to Article 2, Section 23 of the Arizona Constitution. She based this assertion on the fact that Defendant had four prior felony convictions, two of which qualified as HPFCs for sentencing purposes under A.R.S. § 13-604 (Supp 2008)¹, and the other two of which could be considered aggravating factors pursuant to A.R.S. § 13-702.C.11 (Supp.2008)² and § 13-702.01.E (Supp.2008)³. Pursuant to A.R.S. § 13-702.01.E, Defendant would be subject to a term of fifteen years on each charge if two HPFCs and two aggravating factors were found. The State agreed that a twelve-person jury should be seated because Defendant was subject to enhanced sentences because of the two HPFCs and his sentences also could be aggravated by the other two prior felony convictions, resulting in two possible sentences of fifteen years each. The court disagreed, concluding that prior felony convictions cumulatively can constitute only one aggravating factor rather than two. Accordingly, pursuant to A.R.S. § 13-604.C, the maximum sentence Defendant could receive was two twelve-year prison terms, or twenty-four years total. Therefore, the court decided that Defendant was not entitled to a twelve-person jury and selected only nine jurors, which included one alternate.

¶ 4 At the sentencing hearing, the State noted that Defendant had prior felony convictions for possession of dangerous drugs committed in 1994 (CR 1995-010547); possession of dangerous drugs committed in 1995 (CR 1995-003900); possession of drug paraphernalia committed in 1996 (CR 96-002226); and misconduct involving weapons committed in 2001 (CR 2001-015558). The State took the position that of the four prior convictions, only the 1996 and 2001 felonies qualified as HPFCs for purposes of enhancing Defendant's sentence, pursuant to A.R.S. § 13-604.⁴ The court then asked the State whether it was its position that CR 2005-010547 (the court mistakenly combining the year 2005 with the case number from the 1994 crime) and CR 2005-003900 (the court mistakenly combining the year 2005 with the case number from the 1995 crime) were the qualified HPFCs, and the State responded in the affirmative.

¶ 5 The court found that the State "proved beyond a reasonable doubt" the HPFCs of CR 95-003900, possession of dangerous drugs, a class 4 felony, and CR 95-010547, possession of dangerous drugs, a class 4 felony.⁵ The trial court then stated that Defendant was "sentenced to the Department of Corrections for ten years." The court did not specify whether the sentence was ten years for each count and if so, whether the sentences were to run consecutively or concurrently. The court did not set forth reasons for imposing concurrent sentences, if that was what it intended. The court did state that it found no mitigating circumstances to justify reducing the sentence from the presumptive term of ten years. It noted that Defendant had an extensive criminal history.

¶ 6 The minute entry from the sentencing proceeding states that "the State has proved the prior offenses the defendant committed," that Defendant was convicted of two counts of forgery "with One Prior" on each and that he was to serve two concurrent ten-year terms. Only one HPFC is listed in the minute entry — Misconduct Involving Weapons, CR2001-015558. The Order of Confinement lists both counts but only one term of imprisonment of ten years beginning March 5, 2007, with credit for ninety-five days of presentence incarceration.

DISCUSSION

A. Right to a Twelve-Person Jury

¶ 7 The Arizona Constitution requires twelve-member juries in criminal cases in which sentences of thirty years or more are authorized by law. Ariz. Const. Art. 2, § 23. In determining whether a twelve-member panel is necessary, the court considers the possible cumulative sentences in the case, not just the possible sentence for any one charge. State v. Henley, 141 Ariz. 465, 468, 687 P.2d 1220, 1223 (1984). An error in empaneling fewer than twelve jurors when twelve are required is fundamental error because it violates a state constitutional provision. Id. at 469, 687 P.2d at 1224.

¶ 8 If the charges against a defendant are reduced before the case goes to the jury, such that the possible penalty becomes less than thirty years, a twelve-member jury is not required. State v. Thompson, 139 Ariz. 133, 134, 677 P.2d 296, 297 (App.1983). Likewise, if all parties stipulate before trial that if convicted on more than one charge, the defendant must be sentenced to concurrent terms so that the maximum penalty possible is less than thirty years, a twelve-member jury is not required. State v. Thorne, 193 Ariz. 137, 138, 971 P.2d 184, 185 (App.1997).

Notwithstanding, defendant further argues that the maximum sentence was not categorically reduced because, despite the apparent agreement of the parties, unforeseen facts might have been adduced at trial that would have allowed the imposition of consecutive sentences for Counts 1 and 2. Again, we disagree.... The state was bound by that stipulation, and the trial court impliedly agreed by empanelling[empaneling] an eight-person jury.

Id.

¶ 9 However, when the judge merely assures that he will not impose a sentence of greater than thirty years and will order concurrent sentences, such a forfeiture of discretion is not sufficient to eliminate the need for a twelve-person jury. State v. Pope, 192 Ariz. 119, 121, ¶ 10, 961 P.2d 1067, 1069 (App.1998). "[W]hat one judge may think about the circumstances of the crime is not the only consideration that bears on the size of the jury." Id.

¶ 10 Here, both defense counsel and the State expressed concerns about the possibility that the court could find two aggravating factors and sentence Defendant to two fifteen-year consecutive terms. The trial court, however, concluded that as a matter of law, Defendant's two prior felony convictions could collectively constitute only one aggravating factor under A.R.S. § 13-702.C.11, with the consequence that Defendant could be sentenced to no more than twelve years on each count. Questions of law and of statutory interpretation are reviewed de novo on appeal. Wilmot v. Wilmot, 203 Ariz. 565, 569, 58 P.3d 507, 511 (2002).

¶ 11 The issue then is whether, under A.R.S. § 13-702.C.11⁶ and 13-702.01.E,⁷ multiple prior felony convictions may constitute multiple aggravating factors, or whether all proven prior felonies may collectively constitute only one aggravating factor in every case. Section 13-702.C.11 lists among several "aggravating circumstances" that "[t]he defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense." Both parties claim the plain language of the statute supports their interpretation.

¶ 12 Defendant provides no authority to support his contention. He merely asserts that the language of the statute is "unambiguous in deeming each qualifying prior conviction as a separate aggravating factor." Defendant then cites State v. Aguilar, 209 Ariz. 40, 48, ¶ 26, 97 P.3d 865, 873 (2004), for the proposition that this unambiguous language should be "the guide to interpreting the law."

¶ 13 The State cites two cases in which the defendant had multiple prior convictions that were treated collectively as one aggravating circumstance — State v. Estrada, 210 Ariz. 111, 114, ¶ 13, 108 P.3d 261, 264 (App.2005) and State v. Burdick, 211 Ariz. 583, 586, ¶ 13 125 P.3d 1039, 1042 (App.2005). See also State v. Soto-Perez, 192 Ariz. 566, 567, 968 P.2d 1051, 1052 (App.1998) (defendant's five prior felony convictions constituted one aggravating factor). Other jurisdictions with similar statutes also tend to consider a criminal history as one...