State v. Pitre

107 P.3d 939

210 Ariz. 93

STATE of Arizona, Appellee, v. Dwayne Alvin PITRE, Appellant.

No. -0526.

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

March 4, 2005.

As Corrected March 8, 2005.

Terry Goddard, Arizona Attorney General, by Randall M. Howe, Chief Counsel, and Jon G. Anderson, Assistant Attorney General, Kerri l. Chamberlin, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Susan Sherwin, Office of the Legal Advocate, by Thomas J. Dennis, Phoenix, Attorneys for Appellant.

OPINION

KESSLER, Judge.

¶ 1 Defendant Dwayne Alvin Pitre appeals from his convictions and sentences for fourteen crimes, arguing the superior court erred in admitting into evidence prior convictions for purposes of impeachment. During the pendency of the appeal, this Court ordered Pitre and the State to file supplemental briefs discussing the propriety of Pitre's sentences under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). For the reasons stated below, we affirm Pitre's convictions but vacate the sentences and remand for resentencing.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Pitre was charged with five counts of armed robbery, five counts of kidnaping, three counts of aggravated assault and one count of theft of means of transportation. Prior to the commencement of a jury trial, the State requested a hearing to determine whether it could impeach Pitre with four alleged prior felony convictions¹ pursuant to Arizona Rule of Evidence 609. The superior court considered the Rule 609 motion before Pitre decided whether he would testify.² The court decided that the State could use all four felony convictions to impeach Pitre if he chose to testify. The court refused to sanitize the nature of the crimes. Pitre elected not to testify.

¶ 3 The jury found Pitre guilty on all fourteen counts. The court sentenced Pitre to a total of 160 years' imprisonment. He timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001) and 13-4033(A) (2001).

DISCUSSION

A. Admission of Prior Convictions for Impeachment Purposes

¶ 4 Pitre first argues the superior court erred by ruling that it would admit his prior convictions for impeachment purposes. While we review for an abuse of discretion a court's decision to admit or sanitize prior felony convictions for impeachment purposes, Pitre waived this issue by failing to testify at trial. See State v. Green, 200 Ariz. 496, 498, ¶ 7, 29 P.3d 271, 273 (2001) (reviewing for an abuse of discretion a trial court's ruling allowing admissibility of prior felony convictions); see also State v. Montano, 204 Ariz. 413, 426, ¶ 66, 65 P.3d 61, 74 (2003) (it is within the trial court's discretion to sanitize prior convictions), supplemented on different grounds by 206 Ariz. 296, 77 P.3d 1246 (2003); State v. Smyers, 207 Ariz. 314, 318, ¶ 15, 86 P.3d 370, 374 (2004) (a defendant must testify at trial to preserve a challenge to the trial court's ruling regarding the admissibility of prior convictions for impeachment purposes).

¶ 5 The longstanding rule in Arizona has been that "a defendant must take the stand before he can challenge an adverse pretrial ruling allowing prior convictions to be admitted for impeachment purposes." State v. Allie, 147 Ariz. 320, 327, 710 P.2d 430, 437 (1985). The rationale behind the rule is that "[w]ithout defendant's testimony, a reviewing court cannot properly weigh the probative value of the testimony against the impact of the impeachment." State v. Conner, 163 Ariz. 97, 102, 786 P.2d 948, 953 (1990). Absent a record of a defendant's testimony, cross-examination, and an assessment of the impact of the impeachment on the jury, it is too speculative for a reviewing court to determine if the trial court erred. Id.

¶ 6 Pitre filed an appeal based on the decision of this Court in State v. Smyers, which held that, if a trial court's decision to admit prior convictions for the purpose of impeachment is erroneous, the defendant is prejudiced by his or her inability to make an informed decision about the potential consequences of his testimony. 205 Ariz. 479, 484, ¶ 22, 73 P.3d 610, 615 (App.2003), vacated by Smyers, 207 Ariz. at 318, ¶ 16, 86 P.3d at 374.

¶ 7 However, as recognized by Pitre, the Arizona Supreme Court vacated in relevant part that portion of this Court's decision in Smyers that formed the basis for his appeal. Smyers, 207 Ariz. at 318, ¶ 15, 86 P.3d at 374. The supreme court found this Court erred because it reviewed the trial court's Rule 609 ruling even though the defendant did not testify at trial. Id. at 316, ¶ 5, 86 P.3d at 372. The court held that the defendant's "decision not to testify at trial preclude[d] him from challenging the trial court's [Rule 609] pretrial ruling on appeal." Id. at 318, ¶ 15, 86 P.3d at 374.

¶ 8 Pitre did not testify at trial. Therefore, he waived his right to challenge the superior court's ruling to admit prior convictions pursuant to Rule 609.

B. Propriety of Sentencing under Blakely

¶ 9 Pitre contends his aggravated sentences run afoul of Blakely. At a voluntariness hearing Pitre admitted four prior non-dangerous felony convictions. The superior court used two of these convictions to designate Pitre as a repeat offender pursuant to A.R.S. § 13-604(V)(1)(d) (2001). The court found no mitigating factors and the following aggravating factors for each count: the remaining two prior non-dangerous felony convictions, "[t]he presence of armed accomplices, the extent of the trauma suffered by the victims and the use of gratuitous violence...."

¶ 10 The court imposed aggravated sentences for all fourteen counts. The court sentenced Pitre as a repeat offender on all counts in exchange for the State treating all the dangerous offenses as non-dangerous. On each of the five armed robbery counts, class 2 felonies, the court sentenced Pitre to twenty-eight years' imprisonment. The presumptive sentence is 15.75 years' imprisonment. A.R.S. § 13-604(D) (Supp.2004). On each of the five kidnaping counts, class 4 felonies, the court imposed a twelve-year sentence. The presumptive sentence is ten years. Id. § 13-604(C). For theft of means of transportation and three counts of aggravated assault, all class 3 felonies, Pitre received twenty-year sentences rather than the presumptive 11.25-year sentences. Id. § 13-604(D). The court ordered all crimes committed against each individual victim to run concurrently. The court then ordered the count with the highest imprisonment time for each victim to run consecutively. The end result is that Pitre has an effective 160-year sentence.

¶ 11 The State contends that Pitre has waived his Blakely argument because he did not raise the issue at trial. Just because Pitre did not raise this issue below does not preclude us from considering it. See State v. Munninger, 209 Ariz. 473, 477-78, ¶¶ 8-12, 104 P.3d 204, 208-09 (App.2005); State v. Martinez, 209 Ariz. 280, 283, ¶ 9, 100 P.3d 30, 33 (App.2004), review granted (Feb. 8, 2005); State v. Resendis-Felix, 209 Ariz. 292, 294, ¶ 6, 100 P.3d 457, 459 (App.2004). See also State v. Tschilar, 200 Ariz. 427, 432, ¶ 15, 27 P.3d 331, 336 (App.2001) ("Apprendi had not been decided when Tschilar was sentenced, but, because it presents a new rule of constitutional law, its rationale is applied to cases pending on direct review."). We review issues raised for the first time on appeal for fundamental error. State v. Hernandez, 191 Ariz. 553, 560, ¶ 28, 959 P.2d 810, 817 (App.1998). Imposition of a sentence in violation of Blakely may be fundamental error. Resendis-Felix, 209 Ariz. at 294, ¶¶ 5-6, 100 P.3d at 459.

¶ 12 For a court to impose a sentence longer than the statutory presumptive sentence, "[o]ther than the fact of a prior conviction," the court may consider only those facts "reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2536, 2537 (citations and quotations omitted). Any other aggravating factors must be determined by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.") (emphasis added).

¶ 13 Pitre's sentences are invalid under Blakely. The State correctly notes that the superior court properly used one of the factors to aggravate Pitre's sentences: two prior non-dangerous felony convictions to which Pitre admitted. See Blakely, 124 S.Ct. at 2536, 2537 (a court may consider facts admitted by a defendant and prior convictions to aggravate a sentence). However, we disagree with the State's contention that a sole valid factor under Blakely opens the door and allows a court without a jury to consider any other factors that do not fit within Blakely's confines.

¶ 14 Arizona case law mandates that we reject this "one valid factor is sufficient" approach. In applying Apprendi to Arizona's capital sentencing scheme, unless the error is otherwise harmless, our supreme court will reverse death sentences in which the trial court relied on the presence of aggravating factors not admitted by defendants and not found by juries even though there were other aggravating factors that did not need to be found by a jury. See State v. Murdaugh, 209 Ariz. 19, 30, ¶ 51, 97 P.3d 844, 855 (2004). Indeed, in State v. Ring, 204 Ariz. 534, 561-62, ¶¶ 87-90, 65 P.3d 915, 942-43 (2003) ("Ring III"), our supreme court rejected the argument that if one aggravating factor is established beyond a reasonable doubt the trial court's consideration of other aggravating...