State v. Balli ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TYLER RAY BALLI, Appellant.
No. 1 CA-CR 20-0502
FILED 7-8-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201800084
The Honorable Richard D. Lambert, Judge
VACATED AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. BALLI
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.
G A S S, Judge:
¶1 Tyler Ray Balli appeals his sentence for burglary in the first
degree following a resentencing. Because Balli has shown fundamental
error and prejudice, we vacate the sentence and remand for resentencing
consistent with this decision.
FACTUAL AND PROCEDURAL HISTORY
¶2 Balli was convicted after a jury trial of burglary in the first
degree and aggravated harassment. The superior court found the burglary
count to be a dangerous offense and sentenced Balli to a slightly mitigated
term of 9 years in prison to run concurrent with the 1-year aggravated
harassment sentence. On appeal, this court affirmed Balli’s convictions and
the aggravated harassment sentence. State v. Balli, 1 CA-CR 18-0904, 2020
WL 1274612, at *1, ¶ 1 (Ariz. App. Mar. 17, 2020) (mem. decision). This court
then vacated and remanded the burglary sentence because a jury did not
make a separate dangerousness finding and burglary in the first degree—
as charged in this case—is not an inherently dangerous offense. Id. at *9, ¶¶
38–39.
¶3 At resentencing, the State urged the superior court to impose
the same sentence of 9 years in prison. The superior court found 2
aggravators—the victim was over 65 years old and a prior felony conviction
within the past 10 years—and no mitigators, and resentenced Balli as a first-
time offender to an aggravated term of 9 years. Balli timely appealed. This
court has jurisdiction under article VI, section 9, of the Arizona
Constitution, and A.R.S. §§ 13-4031, and 13-4033.A.
ANALYSIS
I. Aggravated Sentence
¶4 Balli argues the superior court erred by sentencing him to an
aggravated term of imprisonment when no aggravators were proven to a
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STATE v. BALLI
Decision of the Court
factfinder. See Blakely v. Washington, 542 U.S. 296, 301–05 (2004); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000).
¶5 Because Balli failed to object below, he bears the burden to
prove fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005). Under fundamental-error review, the defendant must establish
an error exists and the error was fundamental by showing: “(1) the error
went to the foundation of the case, (2) the error took from the defendant a
right essential to his defense, or (3) the error was so egregious that he could
not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142,
¶ 21 (2018). If the defendant establishes fundamental error under prongs 1
or 2, the defendant also must show prejudice. Id.¶6 When a judge, not a jury, applies improperly considered
aggravators to enhance a defendant’s sentence, the error goes to the
foundation of the case. Henderson, 210 Ariz. at 568, ¶ 25. The State concedes
fundamental error. We must only determine if Balli has demonstrated
prejudice.
¶7 Prejudice exists if, absent the improperly considered
aggravating factors, the superior court “could have reasonably imposed a
lighter sentence.” State v. Trujillo, 227 Ariz. 314, 318, ¶ 16 (App. 2011); see
State v. Hardwick, 183 Ariz. 649, 656–57 (App. 1995) (“When a trial court
relies on both proper and improper factors in aggravating a sentence, this
court will uphold its decision only [when] the record clearly shows the trial
court would have reached the same result even without consideration of
the improper factors.”) (citation omitted) (internal quotation marks
omitted). When “deprived . . . of the opportunity to require that a jury find
facts sufficient to expose him to an aggravated sentence, [the defendant]
must show that a reasonable jury, applying the appropriate standard of
proof, could have reached a different result than did the trial judge.”
Henderson, 210 Ariz. at 569, ¶ 27. Determining prejudice “involves a fact-
intensive inquiry.” Id. at 568, ¶ 26.
¶8 First, the sentencing judge, not the jury, found the victim’s
age—over 65 years old—was an aggravating factor. See A.R.S. § 13-
701.D.13. The evidence at trial was undisputed: the victim was 83 years old.
Balli does not contest this point. See State v. Angulo-Chavez, 247 Ariz. 255,
260, ¶ 15 (App. 2019) (“It is not enough to simply assert that the jury could
have rejected the state’s evidence; [the defendant] must demonstrate that
there was evidence upon which a reasonable jury could have based a
contrary decision.”). No reasonable jury could have failed to find the
existence of this aggravator beyond a reasonable doubt.
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STATE v. BALLI
Decision of the Court
¶9 Next, the sentencing judge applied the incorrect standard to
determine Balli had a prior felony conviction within the past 10 years. See
A.R.S. § 13-701.C, .D.11. The State failed to present any evidence at trial or
in a presentencing hearing to support the finding. Instead, the superior
court based its finding on the criminal history in the presentence report. The
State concedes insufficient evidence supported this aggravator and the
superior court improperly considered it during sentencing.
¶10 Absent the prior felony conviction aggravator, we cannot say
the record “clearly shows that the trial court would have reached the same
result.” Trujillo, 227 Ariz. at 318, ¶ 13 (citation omitted). During Balli’s first
and second sentencings, the superior court emphasized Balli’s “extensive”
criminal history contained within the presentence report. During both
sentencings, the superior court appeared very concerned with Balli’s prior
felony and misdemeanor convictions, his earlier probation, his prior
incarceration, and his earlier conviction for a violent offense. These
observations were not “mere passing comments.” See id. at 319, ¶ 20. Balli
has shown prejudice because we cannot determine the sentencing judge
would aggravate Balli’s sentence to the same degree if the improperly
considered aggravating factor were subtracted from the balance. See State
v. Pena, 209 Ariz. 503, 509, ¶ 23 (App. 2005) (“The reversal of a single
aggravating factor may mean that the sentencing calculus . . . has
changed.”) (citation omitted) (internal quotation marks omitted).
Accordingly, we vacate Balli’s sentence and remand for further
proceedings.
II. Prosecutorial Vindictiveness
¶11 Balli next argues the prosecutor acted vindictively because,
on remand, the prosecutor asked for an aggravated sentence of 9 years
when originally the prosecutor asked for the presumptive of 10.5 years. The
State violates a defendant’s due process rights by acting vindictively after a
defendant exercises a constitutional right. Blackledge v. Perry, 417 U.S. 21,
28–29 (1974). Here, Balli exercised his right to appeal. We need not engage
in an analysis of prosecutorial vindictiveness because Balli’s sentence
stayed the same. See United States v. Kinsey, 994 F.2d 699, 701 (9th Cir. 1993)
(“But the doctrine of vindictive prosecution does not apply, when, as here,
there has been no increase in the severity of . . . the sentence imposed.”).
Because Balli received the same sentence at his resentencing, he cannot
show he was punished for exercising his right to appeal. His due process
rights were not violated.
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STATE v. BALLI
Decision of the Court
III. Judicial Vindictiveness
¶12 Balli argues the superior court acted vindictively and violated
his due process rights by imposing an aggravated sentence on remand.
Because Balli failed to object in the superior court, this court reviews for
fundamental, prejudicial error. Henderson, 210 Ariz. at 567, ¶ 19.
¶13 A superior court cannot impose a more severe sentence on
resentencing if the increase is the product of actual vindictiveness. Ariz. R.
Crim. P. 26.14(c); see North Carolina v. Pearce, 395 U.S. 711, 725 (1969). The
superior court does not violate due process if the superior court can provide
a non-vindictive rationale for an increased sentence. State v. Thomas, 142
Ariz. 201, 203 (App. 1984) (citation omitted). When the sentence is not
increased, no due process violation occurs. State v. Towns, 136 Ariz. 541, 543
(App. 1983).
¶14 Here, no due process violation occurred because Balli
received the same sentence. See id. Towns is instructive. See id. There, the
defendants originally received 7.5 years in prison, the then-presumptive
sentence for a class 3 felony dangerous offense. Id. at 542. On appeal, the
sentence was vacated and remanded because the jury’s verdict did not
necessarily include a dangerous finding as required by statute. Id. On
remand, the superior court found the aggravated sentence of 7.5 years for
the same offense, now non-dangerous, to be appropriate. Id. This court held
the sentence was not a judicial penalty because the final sentence did not
increase. Id. at 543; see also State v. Mincey, 130 Ariz. 389, 413–14 (1981)
(defendant did not receive a harsher sentence when superior court imposed
the same sentence on remand but for a lesser offense); State v. Robertson, 163
Ariz. 504, 505 (App. 1990) (rejecting argument “that the proportionally
greater degree of aggravation constituted an increase in [the defendant’s]
sentence within the meaning of either Pearce or Ariz. R. Crim. P. 26.14”).
¶15 The same logic applies here because Balli received the same
9-year sentence on remand. The maximum sentence for a non-dangerous
class 2 offender is 10 years. A.R.S. § 13-702.D. The new sentence is not more
severe than the original because Balli will serve the same amount of time in
prison. Moreover, the superior court did not make comments expressing a
departure from its judicial role. See State v. Mendoza, 248 Ariz. 6, 20–21, ¶¶
32–37 (App. 2019) (superior court’s expression of comments deviating from
its role as a neutral arbiter can raise the specter of judicial vindictiveness).
Though the sentence is now aggravated instead of mitigated, Balli’s due
process rights are not implicated.
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STATE v. BALLI
Decision of the Court
CONCLUSION
¶16 We vacate Balli’s sentence for burglary in the first degree and
remand to the superior court for further proceedings.
AMY M. WOOD • Clerk of the Court
FILED: AA
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