State of Arizona v. Peter Damien Keith ( 2005 )

FILED BY CLERK
NOV 10 2005
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2005-0026
Appellee, ) DEPARTMENT A
)
v. ) OPINION
)
PETER DAMIEN KEITH, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20042396
Honorable Frank Dawley, Judge Pro Tempore
AFFIRMED
Terry Goddard, Arizona Attorney General
By Randall M. Howe and Diane Leigh Hunt Tucson
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Stephan J. McCaffery Tucson
Attorneys for Appellant
H O W A R D, Presiding Judge.
¶1 After a jury trial, appellant Peter Keith was convicted of aggravated assault of
a police officer and sentenced to an enhanced, presumptive 3.75-year prison term. On
appeal, he contends he was entitled to a jury trial on his prior convictions and that his
double jeopardy rights were violated because the court found he had prior convictions after
the jury was dismissed. Because he does not have the right to have a jury determine prior
convictions and double jeopardy principles do not apply to the prior conviction
determination, we affirm.
PRIOR CONVICTIONS
¶2 Keith first argues that the trial court erred by enhancing his sentences based
on prior convictions not found by a jury beyond a reasonable doubt, in violation of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Because Keith did not object on this ground below, we review solely for fundamental error.
See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error
is error that deprives a defendant of a right essential to his or her defense and of a fair trial
or that goes to the very foundation of the defendant’s theory of the case. State v. Siddle,
202 Ariz. 512, ¶ 4, 47 P.3d 1150, 1153 (App. 2002).
¶3 Keith argues that the Supreme Court’s analysis in Almendarez-Torres v.
United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), “cannot withstand
Apprendi’s constitutional analysis” and that Apprendi requires that the fact of a prior
conviction be submitted to a jury and found beyond a reasonable doubt. But Apprendi
expressly exempts prior convictions from the requirement of a jury trial: “Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis added);
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see also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004); accord
United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004) (citing
widespread agreement among federal circuit courts that Blakely preserves exception for prior
convictions). In reliance on these cases, our supreme court has recognized the prior
convictions exception in the capital and non-capital contexts. See, e.g, State v. Fell, 210
Ariz. 554, ¶¶ 8-9, 115 P.3d 594, 597 (2005); State v. Ring, 204 Ariz. 534, ¶ 55, 65 P.3d
915, 937 (2003). We are not allowed to anticipate how the Supreme Court may rule in the
future. See Myers v. Reeb, 190 Ariz. 341, 343, 947 P.2d 915, 917 (App. 1997); see also
State v. Eichorn, 143 Ariz. 609, 613, 694 P.2d 1223, 1227 (App. 1984) (“Whether prior
decisions of the Arizona Supreme Court are to be disaffirmed is a question for that court.”).
DOUBLE JEOPARDY
¶4 Keith next argues that the double jeopardy clause of the federal constitution
prohibited the state from proving his prior convictions, which he claims are additional
offense elements under Apprendi, after the jury was dismissed. He argues that the holding
of Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998), which
excepts noncapital sentencing proceedings from double jeopardy clause protection, “cannot
withstand the analysis of Apprendi and its progeny.” Because Keith did not object on this
ground below, we review solely for fundamental error. Henderson, 210 Ariz. 561, ¶ 19, 115
P.3d at 607.
¶5 The Fifth Amendment to the United States Constitution provides that “[n]o
person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”
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U.S. Const. amend. V. This guarantee protects against successive prosecution for the same
offense after acquittal or conviction, and against multiple punishments for the same offense.
United States v. Dixon, 509 U.S. 688, 695-96, 113 S. Ct. 2849, 2855-56, 125 L. Ed. 2d
556, 567-68 (1993).
¶6 In Monge, the United States Supreme Court held that the Double Jeopardy
Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing
context, even after a reversal based on insufficient evidence. 524 U.S. at 728-29, 118 S. Ct.
at 2250-51, 141 L. Ed. 2d at 623-24. The Apprendi court acknowledged Monge and
expressly recognized its continuing validity. See Apprendi, 530 U.S. at 488 n.14, 120 S. Ct.
at 2362 n.14, 147 L. Ed. 2d at 454 n.14; see also United States v. Corrado, 286 F.3d 934,
939 (6th Cir. 2002) (stating that Apprendi did not overrule Monge). Accordingly, Apprendi
did not expressly or impliedly overrule Monge. Furthermore, Keith had no right to a jury
trial on his prior convictions so the dismissal of the jury was irrelevant to any double
jeopardy issue.
¶7 Keith further argues that the “functionalist approach to defining offense
elements,” adopted in Blakely, indicates that the Supreme Court no longer approves of
Monge. But in Blakely, the court continued the exception for proof of prior convictions
based on Almendarez-Torres. Blakely, 542 U.S. at 322, 124 S. Ct. at 2548. In
Almendarez-Torres, the Supreme Court approved of a bifurcated procedure in which the
court accepted the defendant’s guilty plea pursuant to a plea agreement and later determined
the existence of prior convictions. 523 U.S. at 226-27, 118 S. Ct. at 1222, 140 L. Ed. 2d
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at 357. The same principles would apply to this situation in which a jury had determined
guilt. Aragon v. Wilkinson ex rel. County of Maricopa, 209 Ariz. 61, ¶ 7, 97 P.3d 886, 889
(App. 2004) (“[I]f the court accepts the guilty plea, jeopardy attaches . . . .”). Because the
Supreme Court has excepted prior convictions from inclusion as elements of the offense
under Apprendi, we see nothing in Apprendi or Blakely that disapproves of this bifurcated
approach approved in Almendarez-Torres under which the existence of prior convictions
is determined after conviction. Moreover, both the United States Supreme Court and the
Arizona Supreme Court have previously rejected the broader argument that double jeopardy
principles require the state to prove a defendant’s prior felony convictions to the same jury
that determined the underlying substantive offense. Oyler v. Boles, 368 U.S. 448, 452, 82
S. Ct. 501, 503-04, 7 L. Ed. 2d 446, 450 (1962); State ex rel. Neely v. Sherrill, 168 Ariz.
472, 474-75, 815 P.2d 396, 401-02 (1991). Pursuant to controlling precedent, double
jeopardy does not attach to the court’s determination of Keith’s prior convictions. We find
no error, fundamental or otherwise.
¶8 We affirm Keith’s conviction and sentence.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
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____________________________________
PETER J. ECKERSTROM, Judge
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