State v. Valencia, 3989-3
| Decision Date | 13 April 1982 |
| Docket Number | No. 3989-3,3989-3 |
| Citation | 645 P.2d 239,132 Ariz. 248 |
| Parties | STATE of Arizona, Appellee, v. Frank James VALENCIA, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.
Thomas G. Martin, Tucson, for appellant.
On 17 July 1980, defendant Frank James Valencia was resentenced to death pursuant to A.R.S. § 13-703. Defendant appeals this sentence. We have jurisdiction pursuant to A.R.S. § 13-4031.
We must answer two questions on appeal:
1. Must the matter be returned for retrial because the sentencing judge was not the same judge who tried the matter as required by A.R.S. § 13-703(B)?
2. Was the death sentence mandated in this case?
The facts necessary for a determination of these questions are as follows. On 13 April 1977, defendant was adjudged guilty of first degree murder for the death of Karen Louise Tweedy. After the requisite aggravation-mitigation hearing, he was sentenced to death. We affirmed the judgment of conviction but vacated the death sentence pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and remanded the case for resentencing. State v. Valencia, 121 Ariz. 191, 589 P.2d 434 (1979). The defendant again received the death penalty, and on his appeal he urged this court to overturn his sentence because of the trial judge's admission that he had spoken with the victim's brother concerning the family's wishes that the defendant receive the death penalty. We agreed with the defendant and held that because "the fundamental rights of the defendant to a fair hearing (had) been impinged," the sentence was set aside and remanded for resentencing before a different judge. State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979).
Upon remand, as directed by this court, the aggravation-mitigation hearing was conducted before a judge other than the one who tried the defendant. The judge found as aggravating circumstances that the defendant had been convicted of offenses in the State of Arizona involving the use or threat of violence and for which the sentence of life imprisonment was imposable. See A.R.S. § 13- 703(F)(1) & (2). The convictions arose from a single set of events where the defendant had kidnapped, robbed and raped a victim at gunpoint. Defendant was sentenced to 40 to 60 years for the rape, 20 to 30 years for the kidnapping, both counts to be served concurrently, and 10 to 15 years for the robbery, to run consecutively to the first two sentences. The facts surrounding this incident can be found in State v. Valencia, 118 Ariz. 136, 575 P.2d 335 (App.1977). The crimes were committed prior to the instant murder, and the convictions were obtained before the defendant was tried and sentenced in this case. The trial judge also found that the defendant's age (16 at the time of the murder) was the only mitigating factor, but not sufficiently substantial to overcome the two aggravating circumstances based upon the prior convictions.
The defendant urges that because the judge who resentenced him was not the same judge who presided at the trial, the resentencing was improper as violative of A.R.S. § 13-703, Arizona's death penalty statute. Under that statute, sentencing in a death penalty case must be done by the same judge who tried the case or accepted the plea of guilty. Subsection B of A.R.S. § 13-703 reads:
Upon remand for sentencing the second time, State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979), we ordered that the sentencing be before a different judge. Later we had occasion to consider subsection B of A.R.S. § 13-703, stating:
"The statute is unambiguous in this requirement that the judge who heard the trial or accepted the plea preside at the aggravation-mitigation hearing and, by inference, impose the sentence." State v. McDaniel, 127 Ariz. 13, 16, 617 P.2d 1129, 1132 (1980).
Insofar as State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979) holds that a different judge may sentence a defendant to death after another judge has tried the case, it was overruled by State v. McDaniel, supra.
Defendant contends that because the judge who tried the case is no longer able to sentence him, there must be a new trial, citing McDaniel, supra. If the death penalty were still imposable, we would agree. The statute, A.R.S. § 13-703, is limited to first degree murders, the only crime for which the death penalty may be imposed, and the judge has discretion only to impose either life imprisonment with no possibility of parole for 25 years or death. A.R.S. § 13-1105(C). Since we have decided below that the death penalty may not be imposed in this case, there is no necessity for a new sentencing hearing by the trial court. The evidence supports a conviction for first degree murder, and we have affirmed that judgment. We have reduced the punishment from death to life imprisonment, and there is no discretion to be exercised by the trial judge. We need not return the matter for resentencing or retrial.
The defendant had been previously convicted of rape and armed robbery, offenses for which life sentences were then imposable and which involved the uses or threats of violence upon another person. The court correctly found the existence of two aggravating circumstances pursuant to A.R.S. § 13-703(F)(1) & (2).
The defendant's age at the time of the murder (16) was properly found to be a mitigating circumstance. Our statute provides:
" * * * the court * * * shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection F of this section and that there...
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