Opinion
1 CA-CR 11-0748 1 CA-CR 11-0751 1 CA-CR 11-0755
09-27-2012
STATE OF ARIZONA, Appellee, v. MICHAEL DUKE RATLIFF, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Angela Corinne Kebric, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
(Consolidated)
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2011-115385-001, CR2009-005837-001 and
CR2009-005160-001
The Honorable Robert E. Miles, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Angela Corinne Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix OROZCO, Judge ¶1 Michael Duke Ratliff (Defendant) appeals the sentences for his convictions of attempted burglary in the second degree, a class four felony, and criminal damage, a class two misdemeanor, and the finding of a probation violation. For the following reasons, we affirm.
On appeal, Defendant did not raise any issues with regard to his convictions.
FACTS AND PROCEDURAL HISTORY
¶2 A jury found Defendant guilty of attempted burglary and criminal damage. The jury also found that the State proved the presence of an accomplice as an aggravating circumstance. ¶3 Thereafter, Defendant filed a motion to strike the State's allegation that Defendant was on probation at the time he committed the offenses, arguing that whether he was on probation was a factor to be determined by the jury, not the trial court. At sentencing, the court denied Defendant's motion. ¶4 Following hearings on Defendant's probationary status and prior convictions, the court found by clear and convincing evidence that Defendant was on probation at the time of these offenses and that he had three historical prior felony convictions. The court sentenced Defendant to the presumptive term of ten years' imprisonment for attempted burglary and a concurrent term of four months' for criminal damage. ¶5 Defendant 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 (2010), and -4033 (2010).
DISCUSSION
¶6 Defendant argues that whether he was on probation at the time he committed the offenses in this case is an issue that must be submitted to the jury. We disagree. ¶7 Section 13-708.C (Supp. 2011) of the Arizona Revised Statutes provides that a person who is convicted of a non-dangerous felony offense while on probation for a felony offense "shall be sentenced to a term of not less than the presumptive sentence." Defendant contends that Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), require a jury finding because his probationary status "prevents a statutory minimum and requires no less than a presumptive sentence." ¶8 In Apprendi, the Supreme Court held, "[O]ther 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. In Blakely, the Court explained that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303 (emphasis omitted). ¶9 In Arizona, the maximum sentence generally is the presumptive sentence. See State v. Brown, 209 Ariz. 200, 203, ¶ 12, 99 P.3d 15, 18 (2004). In this case, a jury determination regarding Defendant's probationary status was not required because the court's finding that Defendant was on probation at the time he committed the offenses only raised the statutory minimum sentence he could receive and did not increase the penalty beyond the statutory maximum. See State v. Cox, 201 Ariz. 464, 469, ¶ 18, 37 P.3d 437, 442 (App. 2002) (holding that a jury finding on the defendant's parole status was not required because the finding increased the statutory minimum sentence but not the statutory maximum). Thus, Apprendi and Blakely are inapplicable here. See State v. Flores, 201 Ariz. 239, 241, ¶ 8, 33 P.3d 1177, 1179 (App. 2001) ("Because [the defendant's] probationary status thus did not increase the penalty for his crime 'beyond the prescribed statutory maximum,' but merely raised the crime's minimum term, the holding of Apprendi is inapplicable to him." (citation omitted)). ¶10 Defendant also argues that the State was required to prove Defendant's probationary status beyond a reasonable doubt. The trial court may find a defendant's probationary status by clear and convincing evidence. Cox, 201 Ariz. at 469, ¶ 18, 37 P.3d at 442; see State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265 (1987) (holding that the Arizona Constitution does not require a defendant's release status be proven beyond a reasonable doubt). ¶11 Here, the State introduced Defendant's fingerprint card and certified copies of minute entries from his prior convictions. Also, Defendant's probation officer testified that Defendant was on probation at the time he committed these offenses. This evidence was sufficient to establish that Defendant was on probation when he committed the offenses in this case. See State v. Strong, 185 Ariz. 248, 251, 914 P.2d 1340, 1343 (App. 1995) (finding documents that established the defendant's prior convictions and testimony from the defendant's parole officer were "more than sufficient to permit the trial court to find that defendant was on parole when he committed the offenses").
CONCLUSION
¶12 For the foregoing reasons, we hold the trial court did
not err in its imposition of Defendant's sentences. We affirm Defendant's convictions and sentences and the trial court's finding of a probation violation.
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PATRICIA A. OROZCO, Judge
CONCURRING: _______________
MAURICE PORTLEY, Presiding Judge
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RANDALL M. HOWE, Judge