Court: Court of Appeals of Arizona; August 19, 1980; Arizona; State Appellate Court
Antonio Marquez pled guilty to three counts of sexual conduct with a minor, resulting in a ten-year concurrent sentence for each count, as per the plea agreement. On appeal, Marquez challenged the sentences on three grounds:
1. The trial court improperly deviated from the presumptive seven-year sentence without the prosecutor alleging or proving aggravating circumstances.
2. The finding of a prior conviction for child molestation as an aggravating factor lacked sufficient evidence.
3. The trial court did not adequately consider mitigation evidence.
The court noted that the crime is a class two felony with a presumptive sentence of seven years, but the court found aggravating factors—specifically the young ages of the victims (two, three, and four years old) and Marquez’s prior conviction. Marquez argued that under A.R.S. 13-702 C, the trial court lacked jurisdiction to find aggravating circumstances absent a specific allegation from the prosecutor. He cited State v. Murphy to support his position that the authority to present aggravating evidence lies solely with the prosecutor, indicating the trial judge could not impose an enhanced sentence without such evidence being introduced by the state.
A.R.S. 13-702 C does not support the appellant's argument that the term "alleged" limits the trial judge's authority to independently identify aggravating circumstances. Unlike the requirements in Murphy, which mandate a presentence hearing and place the burden on the prosecutor to prove aggravating circumstances for death penalty cases, A.R.S. 13-702 C does not impose such requirements. The trial judge can make factual findings based on any evidence presented before sentencing or previously heard during the trial. This interpretation is further supported by State v. Ford, which established that a trial court can find aggravating circumstances without a prosecutor's formal allegation or a presentence hearing, affirming that due process is not violated in such scenarios.
Arizona's sentencing framework allows the prosecutor to influence sentencing through the charges filed and plea negotiations. However, following a conviction, the presumptive sentence applies unless the judge identifies specific aggravating or mitigating factors. If a defendant wishes to contest aggravating circumstances or present mitigating evidence, they may request a presentence hearing under Rule 26.7. The appellant contends that the presentence report and F.B.I. rap sheet were inadequate to substantiate the finding of a prior child molestation conviction. However, citations to prior cases involving the former recidivist statute do not apply, as A.R.S. 13-702 C allows consideration of various types of evidence, including hearsay, during presentence hearings to determine aggravating or mitigating factors.
Hearsay evidence's reliability is primarily at the trial court's discretion, and presentence reports from police records are generally admissible. The trial court acted within its discretion by considering information from the F.B.I. rap sheet. The appellant did not object to the presentence report's mention of a misdemeanor conviction for child molesting, thereby waiving the right to contest the report's contents. Although the appellant claimed the trial court failed to consider mitigating factors such as intoxication at the time of the offenses and diminished capacity, the record indicates these factors were acknowledged in the presentence report, which the judge reviewed prior to sentencing. The trial court stated it had considered all relevant facts, and the statute does not mandate that each mitigating factor be explicitly addressed if they were not used to reduce the sentence. The court's approach to balancing aggravating and mitigating circumstances complies with legal standards. No fundamental error was found, and the judgment and sentences were affirmed. Both EUBANK, P.J., and O'CONNOR, J. concurred.
