State v. Costa ( 2015 )


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  •                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
    LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    JEFFREY PAUL COSTA, Appellant.
    No. 1 CA-CR 13-0870
    FILED 1-8-2015
    Appeal from the Superior Court in Mohave County
    No. CR2011-01313
    The Honorable Steven F. Conn, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Michael T. O’Toole
    Counsel for Appellee
    Mohave County Legal Advocate, Kingman
    By Jill L. Evans
    Counsel for Appellant
    STATE v. COSTA
    Decision of the Court
    MEMORANDUM DECISION
    Judge Michael J. Brown delivered the decision of the Court, in which
    Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
    B R O W N, Judge:
    ¶1            Jeffrey Paul Costa (“Costa”) appeals his conviction and
    sentence for second degree murder. He challenges only the sentence
    imposed, asserting that the determination of whether he was on parole at
    the time of offense should have been made by a jury. We agree that a jury
    should have considered Costa’s parole status; however, because he was not
    prejudiced by the error, we affirm.
    BACKGROUND
    ¶2            In November 2011, Costa attacked the victim with a “glass
    tumbler” in the victim’s home. Leaving the victim motionless on the floor,
    Costa took the victim’s car and cell phone and drove to California. A few
    days later, upon hearing that the victim had died from his injuries, Costa
    surrendered to California police.
    ¶3           A grand jury indicted Costa on a single count of second
    degree murder, a class 1 felony. At trial, Costa admitted he had been
    convicted of two prior felonies. A jury convicted Costa as charged and
    found that the State had proven the existence of one aggravating factor, the
    use of a dangerous instrument.
    ¶4             Prior to sentencing, the trial court held a hearing on the State’s
    allegations that Costa had prior felony convictions and that he committed
    the offense while on parole. The court found, as an aggravating factor, that
    the State proved beyond a reasonable doubt that Costa was convicted of
    robbery in California and that the offense occurred in 2005. Regarding the
    allegation that Costa was on parole at the time of the second degree murder,
    the court admitted a certified copy of a chronological history or “pen pack”
    of Costa’s status in the California Department of Corrections. According to
    the State, the pen pack established that Costa had been paroled in December
    2009 and remained on parole at the time of the murder because he had a
    parole hearing scheduled for November 14, 2011 that was put on hold
    because of his arrest in this case. The court then found that the State proved
    2
    STATE v. COSTA
    Decision of the Court
    beyond a reasonable doubt that Costa was on parole when he committed
    the instant offense.
    ¶5           After considering additional statements from counsel, the
    court found that Costa’s decision to surrender himself to California police
    was a mitigating factor. The court then sentenced Costa to an aggravated
    sentence of 21 years’ imprisonment, with 723 days credit for time served.
    Costa timely appealed.
    DISCUSSION
    ¶6            At the time the offense was committed, the presumptive
    sentence for a person convicted of second degree murder was 16 calendar
    years, the minimum sentence was 10 calendar years, and the maximum
    aggravated sentence was 22 calendar years. See Ariz. Rev. Stat. (“A.R.S.”)
    § 13-710(A) (2011). The applicable sentencing statutes provided further that
    “[a] person who is convicted of any felony involving a dangerous offense
    that is committed while the person is on . . . parole . . . shall be sentenced to
    imprisonment for not less that the presumptive sentence . . . and is not
    eligible for suspension or commutation or release on any basis until the
    sentence imposed is served.” A.R.S. § 13-708(A). Costa argues that the trial
    court erred because a jury should have determined his parole status.
    ¶7             In Apprendi v. New Jersey, the United States Supreme Court
    held that “[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. 466
    ,
    490 (2000). Providing additional clarification, in June 2013 the Supreme
    Court held that “the principle applied in Apprendi applies with equal force
    to facts increasing the mandatory minimum.” Alleyne v. United States, __
    U.S. __, __, 
    133 S. Ct. 2151
    , 2160 (2013).
    ¶8              Section 13-708(A) increases the statutory mandatory
    minimum sentence from a mitigated sentence to the presumptive sentence.
    State v. Flores, 
    201 Ariz. 239
    , 241, ¶ 8, 
    33 P.3d 1177
    , 1179 (App. 2001). Thus,
    Costa was entitled to have a jury determine his parole status because it
    exposed him to a sentence beyond the statutory minimum. See State v.
    Large, 
    234 Ariz. 274
    , 279, ¶ 15, 
    321 P.3d 429
    , 444 (App. 2014) (“We conclude,
    in light of Alleyne, that Large was entitled to have a jury determine his
    parole status[.]”). When a defendant fails to object to an alleged error at trial
    and preserve the issue for appeal, our review is generally limited to
    fundamental error. State v. Henderson, 
    210 Ariz. 561
    , 565–68, ¶¶ 11–22, 
    115 P.3d 601
    , 605–08 (2005). In Large, this court held that it would review for
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    STATE v. COSTA
    Decision of the Court
    harmless error because applying fundamental error review would be
    “inappropriate” given that the defendant had been convicted and
    sentenced before the Supreme Court announced its decision in Alleyne.
    
    Large, 234 Ariz. at 280
    , ¶ 
    18, 321 P.3d at 445
    .
    ¶9            Although Costa did not raise any argument in the trial court
    that his parole status should have been decided by a jury, he contends we
    should review for harmless error because Large had not yet been decided
    and Alleyne had not yet been “applied” to Arizona. Unlike the situation in
    Large, Alleyne had been decided for several months before Costa was tried
    or sentenced. Thus, we decline to apply harmless error review in this case.
    ¶10            To prevail under fundamental error review, Costa must
    establish that fundamental error exists and that the error was prejudicial.
    
    Henderson, 210 Ariz. at 567
    , ¶ 
    20, 115 P.3d at 607
    . An error is fundamental
    if a defendant shows “that the error complained of goes to the foundation
    of his case, takes away a right that is essential to his defense, and is of such
    magnitude that he could not have received a fair trial.” 
    Id. at 568,
    24, 115 P.3d at 608
    .
    ¶11            The State concedes that Costa was entitled to have a jury
    determine his parole status and that the error is fundamental. However,
    the State asserts no prejudice occurred because the trial court would have
    imposed the same sentence even if the statutory minimum had not been
    increased due to the parole finding. Costa, on the other hand, argues he
    was prejudiced because the pen pack included “numerous undefined terms
    and initials” and a reasonable jury could have found that the State failed to
    prove beyond a reasonable doubt he was on parole at the time of the
    Arizona offense and thus the court could have imposed a less severe
    sentence.
    ¶12            Costa has the burden of establishing prejudice, which is a fact-
    intensive inquiry that differs from case to case. See 
    Henderson, 210 Ariz. at 568
    , ¶ 
    26, 115 P.3d at 608
    . Costa must therefore show that a reasonable jury
    could have concluded that the State failed to meet its burden of proving he
    was on parole at the time he committed the second degree murder. See 
    id. at 569,
    27, 115 P.3d at 609
    . Additionally, Costa must show he could have
    received a lesser sentence. State v. Trujillo, 
    227 Ariz. 314
    , 318, ¶ 16, 
    257 P.3d 1194
    , 1198 (App. 2011). When a trial court makes clear at sentencing that
    the same sentence would have been given even without the improper
    factor, re-sentencing is unnecessary. State v. Munninger, 
    213 Ariz. 393
    , 397,
    ¶ 12, 
    142 P.3d 701
    , 705 (App. 2006); see also State v. Powers, 
    200 Ariz. 123
    , 129,
    ¶ 21, 
    23 P.3d 668
    , 674 (App. 2001). Mere speculation about what the trial
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    STATE v. COSTA
    Decision of the Court
    court may have or could have done, without facts in the record to
    substantiate the claim, is insufficient to show prejudice under fundamental
    error review. 
    Munninger, 213 Ariz. at 397
    , ¶ 
    12, 142 P.3d at 705
    .
    ¶13            We need not decide whether Costa can meet his burden of
    showing a jury would have found differently because he cannot establish a
    reasonable probability that the trial court would have given him a lesser
    sentence. Under the trial court’s finding that Costa was on parole at the
    time of the offense, A.R.S. § 13-708(A) required that the court impose a
    sentence of not less than 16 calendar years, the presumptive sentence for
    second degree murder in 2011. However, because the trial judge was
    seemingly concerned about whether the State met its burden of proving the
    parole allegation, the judge stated: “I can state categorically that it would
    have made absolutely no difference to my analysis in this case, because I
    would not have imposed a mitigated sentence even if I could.” The judge
    also explained that regardless of Costa’s parole status, Costa would be
    required to “serve every day of the sentence that is imposed” pursuant to
    A.R.S. § 13-710(A). The judge then found that “the aggravating factors
    control in this case” and announced the sentence of 21 years’ imprisonment.
    ¶14            Because the record unambiguously demonstrates that Costa
    would have received the same aggravated sentence with or without the
    court’s error, he cannot meet his burden of establishing he was prejudiced
    by the error in his sentencing procedure. See State v. Ojeda, 
    159 Ariz. 560
    ,
    562, 
    769 P.2d 1006
    , 1008 (1989) (holding that when one or more of the trial
    court’s findings are set aside, the sentence should be set aside “unless the
    record clearly shows the trial judge would have made the same disposition
    even without consideration of the violations set aside on appeal”).
    CONCLUSION
    ¶15          For the foregoing reasons, we affirm Costa’s conviction and
    sentence.
    :ama
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