State v. Risco

• Decision Date: 23 September 1985
• Docket Number: Nos. 2-CA-CR,s. 2-CA-CR
• Parties: The STATE of Arizona, Appellee/Cross-Appellant, v. Jose Albeja RISCO, Appellant/Cross-Appellee. The STATE of Arizona, Appellee, v. Jose Albeja RISCO, Appellant, The STATE of Arizona, Appellant/Cross-Appellee, v. Ruben Arvizu MORENO, Appellee/Cross-Appellant. 3508, 3509-2, 3510-2 and 3536-3.
• Court: Arizona Court of Appeals

Page 454

712 P.2d 454

147 Ariz. 607

The STATE of Arizona, Appellee/Cross-Appellant, v. Jose Albeja RISCO, Appellant/Cross-Appellee.

The STATE of Arizona, Appellee, v. Jose Albeja RISCO, Appellant, The STATE of Arizona, Appellant/Cross-Appellee, v. Ruben Arvizu MORENO, Appellee/Cross-Appellant.

Nos. 2-CA-CR 3508, 3509-2, 3510-2 and 3536-3.

Court of Appeals of Arizona Division 2, Department A.

Sept. 23, 1985.

Robert K. Corbin, The Atty. Gen. by Bruce M. Ferg, Tucson, for the State of Arizona.

Antonio F. Riojas, Jr., Tucson, for Jose Albeja Risco.

James P. Watts, Tucson, for Ruben Arvizu Moreno.

OPINION

FERNANDEZ, Judge.

These appeals, involving totally separate defendants and offenses, were consolidated upon motion of the state for our consideration of the issue of the scope of the trial court's authority with respect to findings of mitigating circumstances. For the reasons set forth below, we affirm the convictions and sentences in both cases.

In CR-11480, appellant Moreno was convicted of one count of second-degree burglary by a jury which also found the state's allegation of four prior felony convictions to be true. The trial court sentenced appellant to the presumptive enhanced term of 11.25 years' imprisonment. Counsel for appellant has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969); appellant has not filed a supplemental brief. Counsel has raised no arguable issues nor, apart from the issue raised in its cross-appeal, has the state. Our own review of the record reveals no fundamental or reversible error, and we therefore affirm the conviction. The issues raised by the state with respect to sentencing will be discussed below.

In CR-10601, appellant Risco was indicted on four counts of attempted trafficking, seven counts of second-degree trafficking and one count of first-degree trafficking, with each count alleged as a prior to the other counts. Pursuant to a plea agreement, appellant pled guilty to two counts of second-degree trafficking and one count of first-degree trafficking, and admitted the first two charges as priors to the latter charge. The parties agreed that the sentences would be concurrent with each other and with the sentence imposed in CR-11551, and that appellant would receive a 15-year sentence in CR-10601 and would be required to serve at least ten years. The state dismissed the other charges. The court accepted the plea, and appellant was sentenced to five and 7.5 years on the second-degree trafficking convictions and 15 years on the first-degree trafficking conviction. Counsel has filed a brief in accordance with Anders v. California, supra, and State v. Leon, supra; appellant has not filed a supplemental brief. Although counsel argues that issues "may" exist with respect to competence of counsel and the voluntariness of appellant's plea, no basis for such claims is presented nor do we find any. Our own review of the record has revealed no error, and the state has not challenged the sentencing in this case. The judgments of conviction and sentences are therefore affirmed.

In CR-11551, four and one-half months after the indictment in CR-10601, Risco was indicted on one count of fraudulent scheme or artifice, three counts of theft over $1,000 and one count of second-degree trafficking (subsequently dismissed), arising out of events which occurred while Risco was on release in CR-10601. Risco was convicted on all four counts. He was sentenced to the presumptive term of seven years on the fraudulent scheme conviction and mitigated terms of five, ten and ten years, respectively, on the theft convictions, all terms to run concurrently. In the sole issue raised on appeal, appellant argues that the trial court erred in denying his motion for a mistrial on the ground that some of the jurors had witnessed him in handcuffs. Appellant presented no competent evidence to the trial court establishing that any jurors had in fact seen him in handcuffs, see State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983), nor has he demonstrated any prejudice, even assuming he was so seen. On this record we find no error, much less reversible error. See State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (App.1980); State v. Galioto, 126 Ariz. 188, 613 P.2d 852 (App.1980).

The central issue raised by the state's appeal concerns the authority of the trial court to consider certain matters as mitigating factors for purposes of sentencing. In the Moreno appeal, the state argues that the trial court erred in offsetting the aggravating factor of Moreno's lengthy criminal history against the fact that Moreno had two young children and against the nonviolent nature of the crimes to impose a presumptive sentence. The state contends that neither of these facts may properly be considered as mitigating circumstances and that, having found one legitimate factor in aggravation, the court erred in imposing the presumptive sentence. Following the pronouncement of guilt at sentencing, the court stated as follows:

"I was--it is the further judgment and sentence of the court that the presumptive sentence of eleven-point-two-five years is imposed. That requires basically a seven-year behind-bars situation.

"I was torn between that an [sic] giving you an aggravated sentence. I decided against that considering the fact that you do have a small--two small daughters, not that you contributed much to their lifestyle or--but hopefully after seven years in prison you would see that they are [p]robably your two most valuable possessions.

"So--but like Mr. Owen said, it was--to me it was a very difficult decision as to whether to impose an aggravated sentence based upon your--an aggravated sentence based upon your activities. The only reason I didn't was also bec[au]se of the fact that I've not found any violent acts involved, but hoping that seven years will be sufficient to establish that this kind of behavior just is not going to be accepted."

We note initially that, in imposing the presumptive sentence, the trial court was not required to set forth its reasons for refusing to find aggravating or mitigating circumstances. State v. Winans, 124 Ariz. 502, 605 P.2d 904 (App.1979). The state argues that, having chosen to state his reasons for imposing the presumptive term, those reasons are subject to scrutiny by this court. Further, the state argues, since it was apparent that the presumptive sentence resulted from balancing aggravating and mitigating circumstances and since the trial court could not properly consider the nonviolent nature of the crime and the fact that Moreno had two children as mitigating factors, only the aggravating factor remained and the trial court was obliged to impose an aggravated sentence. We disagree.

First, we do not agree that the presumptive term was imposed solely as a result of balancing aggravating and mitigating factors. Although the trial court's reasoning is somewhat imprecisely stated, we believe that the primary factor behind its decision to impose the presumptive term was its conclusion--or its hope--that seven years' imprisonment would be sufficient to change both Moreno's attitude and his behavior. Further, even assuming that the sentence was the result of a balancing process and that the factors considered in mitigation were impermissible, we nevertheless find no error. Under A.R.S. § 13-604(D), the trial court was required to impose a sentence somewhere between ten and 20 years' imprisonment. The statute also provides that the trial court "shall impose as a presumptive term three-fourths of the median of the allowable range," but that the presumptive term "may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E." (Emphasis added.) The latter statute provides:

"C. The upper or lower term imposed pursuant to § 13-604 or 13-710 or subsection A or B of this section may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the...