State v. Sainz
| Decision Date | 28 November 2012 |
| Docket Number | 2 CA-CR 2011-0401 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ROBERT CONRAD SAINZ, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.
MEMORANDUM DECISIONNot for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
and Amy Pignatella Cain
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Tanya N. Miller
Tucson
Attorneys for Appellant
¶1 After a jury trial, Robert Sainz was convicted of manslaughter, a dangerous-nature offense, and the trial court sentenced him to a partially aggravated prison term of eighteen years. On appeal, Sainz argues the sentence imposed was illegal because the state failed to give notice of its intent to allege aggravating factors before trial. He also contends the court abused its discretion by imposing a partially aggravated sentence. For the reasons stated below, we affirm.
¶2 We view the facts in the light most favorable to sustaining Sainz's conviction and sentence. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In August 2010, Sainz and M.M. drove from California to Tucson to help a mutual friend move and to collect M.M.'s belongings. During the drive, both men consumed alcohol and smoked marijuana. After arriving in Tucson and helping their friend, Sainz and M.M. drove to an apartment complex where M.M. planned to pick up his belongings. Upon arriving at the apartment complex, however, Sainz became "agitated" when M.M. was slow in exiting the vehicle, and a physical altercation ensued. The altercation continued from the car into the courtyard. During the struggle, Sainz stabbed M.M. fifteen times. Sainz received a single superficial cut to his arm. Leaving M.M. sitting hunched over on the ground, Sainz fled the scene in the car, which he later abandoned at a nearby drugstore. By the time police officers arrived, M.M. had died from the stab wounds.
¶3 Despite returning to California and altering his appearance, Sainz eventually was arrested and indicted for first-degree murder. The state also filed anallegation that Sainz had a prior conviction for aggravated driving under the influence (DUI) while his license was suspended, revoked, or restricted and that it intended to use the conviction to enhance Sainz's sentence. Sainz admitted the prior conviction while testifying at trial. He was convicted of the lesser-included offense of manslaughter, which the jury found to be a dangerous-nature offense. At sentencing, the court found the prior conviction and the impact of M.M.'s death on his family to be aggravating factors. The court also found five mitigating factors, but concluded the aggravating factors outweighed the mitigating factors and imposed a partially aggravated prison term. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).
¶4 Sainz argues that "because the state gave no notice of aggravating factors prior to trial, imposition of a partially aggravated sentence was illegal." Although Sainz suggests he raised this argument below in his sentencing memorandum, the record reflects Sainz's objection to the imposition of an aggravated sentence was based only upon the trial court having found additional aggravating factors beyond the prior conviction. Because Sainz failed to raise the notice argument in the trial court, we agree with the state that he has forfeited this issue absent fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Nevertheless, theimposition of an illegal sentence constitutes such error.1 State v. Lewandowski, 220 Ariz. 531, ¶ 4, 207 P.3d 784, 786 (App. 2009).
¶5 Contrary to Sainz's argument, aggravating factors need not be included in an indictment in either non-capital or capital cases. State v. Aleman, 210 Ariz. 232, n.7, 109 P.3d 571, 578 n.7 (App. 2005). Even in capital cases, a defendant is only entitled to sufficient notice of aggravating factors to "'have a reasonable opportunity to prepare a rebuttal.'" State v. Scott, 177 Ariz. 131, 141-42, 865 P.2d 792, 802-03 (1993), quoting State v. Ortiz, 131 Ariz. 195, 207, 639 P.2d 1020, 1032 (1981), disapproved on other grounds by State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983). And this court has held in non-capital cases that notice of aggravating factors in the state's sentencing memorandum provides sufficient notice for due process purposes, State v. Jenkins, 193 Ariz. 115, ¶ 21, 970 P.2d 947, 953 (App. 1998), and that a trial court does not err by sua sponte finding aggravating factors based upon the record, State v. Marquez, 127 Ariz. 3, 5-6, 617 P.2d 787, 789-90 (App. 1980).
¶6 Sainz nevertheless claims that, in light of Ring v. Arizona, 536 U.S. 584 (2002), the state must provide pretrial notice of the aggravating factors upon which itintends to rely. In Ring, the United States Supreme Court held that a defendant's Sixth Amendment right precludes a sentencing judge, sitting without a jury, from finding an aggravating factor necessary for imposition of the death penalty. 536 U.S. at 609. The decision effectively declared our capital sentencing scheme unconstitutional. But post-Ring, our supreme court has confirmed that "aggravators [need] not [be] specified in the indictment . . . because the defendant will have been given ample notice under the Arizona Rules of Criminal Procedure." McKaney v. Foreman, 209 Ariz. 268, ¶ 16, 100 P.3d 18, 21 (2004).2
¶7 Sainz points to Rule 13.5(a), Ariz. R. Crim. P., which applies to non-capital cases, and claims that it requires the state to give notice of all sentencing allegations— including aggravating factors—within the time limits of Rule 16.1(b), Ariz. R. Crim. P. But Sainz largely relies on cases involving notice requirements for sentencing enhancement rather than aggravating factors. See, e.g., State v. Waggoner, 144 Ariz. 237, 238-39, 697 P.2d 320, 321-22 (1985) (); State v. Guytan, 192 Ariz. 514, ¶ 28, 968 P.2d 587, 595 (App. 1998) (). These cases are inapplicable here. And, contrary to Sainz's assertion, State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 10, 98 P.3d 881, 884 (App. 2004), stands for the proposition that the state may add an allegation of aggravating factors to an indictment prior to trial, not that it must.
¶8 Read together, Rules 13.5(a) and 16.1(b) permit the state to amend an indictment to include "an allegation of one or more prior convictions or other non-capital sentencing allegations that must be found by a jury" at least twenty days before trial. However, neither the Sixth Amendment nor Arizona law requires a prior conviction to be "found by a jury." See A.R.S. § 13-701(C); State v. Martinez, 210 Ariz. 578, ¶ 26, 115 P.3d 618, 625 (2005). And when one aggravating factor has been established, the court may consider additional factors without presenting them to a jury. See Martinez, 210 Ariz. 578, ¶ 27, 115 P.3d at 625-26. Before trial, the state alleged Sainz had a prior conviction for purposes of sentence enhancement. Once the court found the prior conviction to be an aggravating circumstance, the other circumstances did not require a jury's determination. Thus, Rules 13.5(a) and 16.1(b) do not apply here.3
¶9 Even assuming a non-capital defendant is entitled to notice of aggravating factors, Sainz received sufficient notice. Sainz received notice of the state's intent to use his prior conviction to enhance his sentence more than one year before trial. His indictment also included a reference to § 13-701, which enumerates certain aggravating and mitigating factors.4 At trial, the state made clear that it intended to use the prior conviction as an aggravator. And Sainz received further notice in the state's sentencingmemorandum regarding its intent to use both the prior conviction and the impact of M.M.'s death on his family as aggravating factors. We therefore find no error, let alone fundamental error, warranting a reversal of Sainz's sentence.
¶10 Sainz next contends the trial court abused its discretion by imposing a partially aggravated sentence. More specifically, he claims the court erred by failing to find his remorse to be a mitigating factor; by aggravating his sentence based upon an implicit finding that the offense was especially heinous, cruel, or depraved; and by awarding a disproportionate weight to the aggravating factors. "A trial court has broad discretion in determining the appropriate penalty to impose upon conviction, and we will not disturb a sentence that is within the statutory limits . . . unless it clearly appears that the court abused its discretion." State v. Cazares, 205 Ariz. 425, ¶ 6, 72 P.3d 355, 357 (App. 2003). We will find an abuse of discretion if the court acted arbitrarily or capriciously or failed to adequately investigate the facts relevant to sentencing.5 State v. Ward, 200 Ariz. 387, ¶ 6, 26 P.3d 1158, 1160 (App. 2001).
¶11 Because Sainz was convicted of manslaughter, a dangerous-nature offense and class-two felony, he was subject to a minimum of seven and a maximum of twenty-one years' imprisonment. See A.R.S. § 13-704(A). At sentencing, the trial court found Sainz's prior conviction and the impact of M.M.'s death on his family to be aggravating circumstances. The court also found the following mitigating circumstances: Sainz's physical and emotional abuse by his father; his family's support; his alcohol and drug abuse; his chaotic childhood; and his age....
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