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STATE v. HURLEY
154 Ariz. 124 (1987)
Supreme Court of Arizona, En Banc.
July 2, 1987.
Finding that the state had proved beyond a reasonable doubt that Hurley committed the robberies while on release, the trial court imposed life sentences for each robbery count. § 13-604.02(A). The judge then found each robbery to be a discrete event and imposed the terms consecutively, stating that she had determined that Hurley is a danger to society and should be punished separately for each separate robbery.
A.R.S. § 13-708. Therefore, Hurley, now 32 years old, received three consecutive life sentences and will not be eligible for parole until he is over one hundred years old. A.R.S. § 13-604.02(A). Hurley has alleged a potpourri of federal constitutional violations. First, he contends that as interpreted by this court, § 13-604.02(A) violates the due process and equal protection clauses of the fourteenth amendment, the eighth amendment prohibition against cruel and unusual punishment, and the jury trial guarantee of the sixth amendment. In addition, he claims that the manner in which the sentencing statute and other criminal statutes were applied to him created an unconstitutionally excessive sentence. We address these issues in turn. DISCUSSION I. Constitutionality of A.R.S. § 13-604.02(A) A. Statutory Background and Interpretation Arizona's penal code creates a tiered system of punishment: courts in some cases may, and in other cases must, sentence offenders to longer prison terms based on specified conduct or status while committing an offense. See A.R.S. §§ 13-604, -604.01, -604.02. For instance, Arizona courts may sentence a first-time, "run-of-the-mill," unarmed robber to a maximum of five years with parole eligibility at half-time. A.R.S. §§ 13-1902, -701, -702, 41-1604.06(D). If that same person either uses or exhibits a deadly weapon or dangerous instrument or has a prior felony conviction, the court must sentence him from seven to twenty-one years with parole eligibility only after serving two-thirds time. A.R.S. §§ 13-1904, -604(B) and (G), -701, -702. If the person uses or exhibits a deadly weapon and has previously been convicted of a class 1, 2, or 3 felony involving the use or exhibition of a deadly weapon, the court may impose a sentence of up to twenty-eight years with parole eligibility at two-thirds time. A.R.S. § 13-604(G). Under the statute at issue in this case, if a person on probation, parole, work furlough, or any other release or escape from confinement for a felony conviction commits a felony while using or exhibiting a deadly weapon or dangerous instrument, the court must sentence him to life imprisonment without possibility of parole for twenty-five years. § 13-604.02(A). Repeat offenders have been punished more severely in Arizona since the turn of the century. See 1901 Revised Statutes of Arizona Territory Title XVII §§ 618, 630, 631. Since then, unless a defendant admitted a prior conviction, this state required that prior convictions be found by a jury before punishment could be enhanced. Id. § 618. Our research did not reveal any constitutional basis for this requirement in Arizona; apparently the procedure was commonly accepted by many states, some believing that it was constitutionally mandated.5
1. Renumbered from § 13-604.01(A) by 1985 Ariz. Sess. Laws, Ch. 364, § 5, effective May 16, 1985. We will use the current designation in this opinion.
2. Sections 13-604(F) and (G) enhance the punishment imposed on a defendant who used or exhibited a deadly weapon. For the first time offender, the maximum sentence is increased and the wait for parole eligibility lengthened. For the repetitive offender, the minimum sentence also is increased. The increases can be quite significant. For instance, under § 13-604(G), a repetitive offender convicted of a class 2 or class 3 felony involving use of a deadly weapon must receive twice the minimum and not more than four times the maximum sentence ordinarily authorized for the crime for which he was convicted and is not parole eligible until he has served two-thirds of the sentence imposed.
3. The relevant portions of § 13-604.02(A) provide:
[A] person convicted of any felony offense involving the use or exhibition of a deadly weapon ... if committed while the person is on probation for a conviction ... or parole, work furlough or any other release or escape from confinement for conviction of a felony offense shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis ... until the person has served not less than twenty-five years.
4. Under this release category, individuals are freed six months before their sentences expire, but remain under jurisdiction of the Department of Corrections for the duration of the sentence. See State v. Caldera,141 Ariz. 634, 638, 688 P.2d 642, 646 (1984).
5. See, e.g., Oyler v. Boles,368 U.S. 448, 452-53, 82 S.Ct. 501, 504, 7 L.Ed.2d 446 (1962) (applying West Virginia law); Chandler v. Fretag,348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954) (applying Tennessee law); People v. Foster, 3 Cal.App.2d 35, 39 P.2d 271 (App. 1934); People v. Casey, 399 Ill. 374, 77 N.E.2d 812 (1948); State v. Livermore, 59 Mont. 362, 196 P. 977 (1921); State v. Janiec,9 N.J.Super. 29, 74 A.2d 605 (1950), aff'd,6 N.J. 608, 80 A.2d 94, cert. denied, 341 U.S. 955, 71 S.Ct. 1007, 95 L.Ed. 1376 (1951); People v. Sickles, 156 N.Y. 541, 51 N.E. 288 (1898); State v. Bruno, 69 Utah. 444, 256 P. 109 (1927).
6. The legislature had been increasing the penalties for committing various specific offenses while armed. See, e.g., A.R.S. § 13-249 (Supp. 1957-78) (increasing penalties for those who committed assault while armed with a deadly weapon and for repeat offenders); A.R.S. § 13-643(B) (Supp. 1957-78) (increasing penalties for those who committed robbery while armed and for repeat offenders). These types of statutes are popularly known as "use a gun — go to prison" laws. See generally Note, California's "Use a Gun — Go to Prison" Laws and Their Relationship to the Determinate Sentencing Scheme, 5 WSU CRIM.JUST.J. 297 (1982); Lizotte & Zatz, The Use and Abuse of Sentence Enhancement for Firearms Offenses in California, 49 LAW & CONTEMP.PROBS. 199 (1986).
7. This court incorporated the statutory procedure into its rules of criminal procedure. See Rules 17.6 and comment, and 19.1(b)(2), Ariz.R. Crim.P., 17 A.R.S. (the rule formalizes the existing practice of Arizona's courts).
8. For the court to invoke the special sentences of § 13-604, a jury must find a prior conviction. § 13-604(K). Obviously, one who falls within any of the enumerated release statuses of § 13-604.02(A) necessarily has a prior felony conviction. Under the statutory scheme, however, if a felon commits an offense while on probation, parole, etc., the prosecutor is relieved of proving the prior conviction to a jury beyond a reasonable doubt. We recognize that this creates an absurd result. However, if our interpretation of § 13-604.02(A) survives McMillan, there is nothing to prevent the legislature from allowing a sentencing court, rather than a jury, to make the determination of prior convictions also.
9. The Arizona courts have published conflicting statements about whether recidivist statutes create a new offense. Compare State v. Allen,111 Ariz. 125, 126, 524 P.2d 502, 503 (1974) (statutes authorizing a more severe penalty for persistent offenders do not create a new, separate, distinct, independent or substantive offense); Valdez v. State, 49 Ariz. 115, 120, 65 P.2d 29, 30-31 (1937) (merely sentence-enhancement provisions) with State v. Ross,107 Ariz. 240, 243, 485 P.2d 810, 813 (1971) (prior conviction is an element of a criminal prosecution that must be proved beyond a reasonable doubt); State v. Pennye,102 Ariz. 207, 208, 427 P.2d 525, 526 (1967) (same); State v. Cobb,2 Ariz.App. 71, 76, 406 P.2d 421, 426 (1965) ("Every fact to be determined by a jury which may be essential to the infliction of legal punishment upon a human being must be proven beyond a reasonable doubt.").
10. A majority of federal courts also have upheld the constitutionality of another similar statute, the armed career criminal act. 18 U.S.C.App. § 1202(a). Under that statute, a person convicted of possession of a firearm, ordinarily punishable by a two-year sentence, must be sentenced to a mandatory prison term of fifteen years if he has three prior convictions for burglary or robbery. The prior convictions are not an element of the offense, but a sentencing factor. See United States v. Hawkins,811 F.2d 210 (3rd Cir.1987); United States v. Gregg,803 F.2d 568, 570 (10th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987). But see United States v. Davis,801 F.2d 754, 755 (5th Cir.1986) (the act is not merely a sentence-enhancement provision but creates a new offense).
11. For instance, to support the armed robbery convictions in this case, the state had to prove that (1) Hurley took another's property from a person or the person's immediate presence, (2) against the person's will, (3) Hurley threatened to use force against the person with intent either to coerce surrender of property or to prevent resistance, and (4) Hurley or an accomplice was armed with a deadly weapon or a simulated deadly weapon or used or threatened to use a deadly weapon or dangerous instrument or a simulated deadly weapon. A.R.S. §§ 13-1902, -1904.
12. This holding is made solely as a matter of state law, and is not based on federal precedent. See Michigan v. Mosley,423 U.S. 96, 120-21, 96 S.Ct. 321, 334-35, 46 L.Ed.2d 313 (1975) (Brennan, J., dissenting).
13. I find myself in an unusual position of not following my own views on this issue. As I have written many times, in my view § 13-604.02(A) violates the eighth amendment and the doctrine of separation of powers. These arguments are covered in State v. Cocio,147 Ariz. 277, 288-89, 709 P.2d 1336, 1347-48 (1985) (Feldman, J., dissenting); State v. McNair,141 Ariz. 475, 487, 687 P.2d 1230, 1243 (1984) (Feldman, J., specially concurring); and State v. Garcia,141 Ariz. 97, 104-07, 685 P.2d 734, 740-43 (1984) (Feldman, J., dissenting). I do not retreat from the views expressed in these opinions. They have not been adopted by this court, however, and nothing in the facts of this case requires the majority to reconsider its analysis. In addition, even in my view, life in prison is not cruel and unusual for this defendant, under these circumstances. This defendant had several prior convictions and had just been placed on mandatory release when he committed the three robberies in question. There comes a time when one becomes a prisoner of one's history and actions.
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