State v. Malone

OPINION

CLABORNE, Judge.

Counsel for appellant filed this appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and has asked this court to search the record for fundamental error. See A.R.S. § 13-4035; State v. Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967). The appellant has been given an opportunity to file a supplemental brief in propria persona, but has failed to do so.

Appellant was charged by indictment with armed robbery, a class 2 felony ¹; kidnapping, a class 2 felony; and, aggravated assault, a class 3 felony. The state alleged that appellant had two prior felony convictions, that the crimes were dangerous and that appellant committed the offenses while on parole, work furlough or other temporary release. The state also filed allegations of prior convictions pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).

Following a jury trial, the appellant was found guilty of armed robbery and kidnapping, both dangerous crimes. The jury also found that the state’s allegation of prior felony convictions was true.

The trial court entered its judgment of guilt and sentenced appellant to two concurrent twenty-one year sentences. As aggravating factors, the trial court listed appellant’s prior felony convictions and the use of a deadly weapon.²

After a review of the record, the parties were ordered to provide this court with a brief addressing the following issue: Is it double punishment, or more, for the court to use the same factor of a weapon as a basis for (1) aggravating the crime of robbery; (2) an allegation of dangerousness; and (3) aggravation in sentencing?

The dissent takes the position that the use of the same weapon to establish both dangerousness and an aggravating factor constitutes double punishment. In State v. Bly, our supreme court held that it was not double punishment to consider an element of a crime for more than one purpose when determining the appropriate sentence. 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980).

In Bly, the defendant argued that he was subjected to multiple punishment for the same act because the use of a dangerous weapon increased his sentence by raising the offense from robbery to armed robbery, by making a prison term mandatory, by using it as an aggravating circumstance to be weighed against mitigating factors, and by making parole unavailable until he serves two-thirds of his sentence. The supreme court disagreed:

Use of a dangerous weapon as an aggravating circumstance does not expose appellant to additional punishment beyond the enhanced sentence. It is only within the range provided for dangerous class 2 felonies that the trial judge may consider the aggravating and mitigating circumstances. Under § 13-604(G), the range of sentence required when a gun is present is not a decision within the discretion of the trial judge; however, under § 13-702(D)(2), the quality and circumstances of the act committed with the gun may be considered, such as, did the manner of using the gun put others in great fear or danger. The quality of the act, as aggravation, will never subject the defendant to punishment greater than that provided in the enhanced sentencing provisions and is not double punishment.

Id. at 372-73, 621 P.2d at 281-82. See also, State v. Hall, 169 Ariz. 513, 821 P.2d 174 (App.1990) (state entitled to allege that aggravated assault was a dangerous offense where defendant fired a gun); State v. Garcia, 165 Ariz. 547, 799 P.2d 888 (App. 1990) (use of automobile can support allegation of dangerousness to enhance punishment for aggravated assault); State v. Rodriguez, 126 Ariz. 104, 612 P.2d 1067 (App.1980) (use of a gun can support allegation of dangerousness to enhance punishment for aggravated assault).

We find Bly dispositive of the issue before us. We are bound by the supreme court’s decision in that case and have no authority to overrule or disregard it. State v. Eichorn, 143 Ariz. 609, 613, 694 P.2d 1223, 1226 (App.1984). Although we may feel that the principle announced in Bly and Rodriguez should be refined to meet the concerns set forth in the dissent and in Hall, the resolution must be left to our supreme court. Bade v. Arizona Dept. of Transp., 150 Ariz. 203, 205, 722 P.2d 371, 373 (App.1986).

Pursuant to A.R.S. § 13-4035, we have searched the record for fundamental error and have found none. The record shows that appellant was represented by competent counsel at all stages of the proceedings and is represented by counsel on this appeal. The sentencing hearing was conducted in full compliance with the Rules of Criminal Procedure and the sentence imposed falls within the range permitted by statute.

Upon the filing of this decision, counsel’s obligations pertaining to the representation of appellant in this appeal have come to an end. Counsel need do no more than inform appellant of the status of the appeal and appellant’s future options, unless counsel’s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984). It is ordered that appellant shall have thirty days from the date of this decision to proceed, if he desires, with a motion for reconsideration or petition for review in propria persona.

Having found no error, the judgment of conviction and the sentence are affirmed.

GRANT, C.J., concurs.

1 . Robbery is defined in three ways by our statute. Each type of robbery requires certain elements.

A.R.S. § 13-1902 defines the basic crime as follows:

A. A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.

A violation of § 13-1902 provides a class 4 felony penalty.

Aggravated robbery requires an additional element. A.R.S. § 13-1903(A) provides:

A. A person commits aggravated robbery if in the course of committing robbery as defined in § 13-1902, such person is aided by one or more accomplices actually present.

Aggravated robbery is a class 3 felony.

Armed robbery requires another element and is the most serious of the robbery offenses. A.R.S. § 13-1904 provides:

A. A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:

1. Is armed with a deadly weapon or a simulated deadly weapon; or

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.

Armed robbery is a class 2 felony.

2 . The court’s sentence of imprisonment finds defendant in violation of A.R.S. §§ 13-1901, - 1902, and -1904 on the kidnapping charge. The correct citation should be to A.R.S. § 13-1301 and -1304. The failure to set out the correct statutory citations is not fundamental error. See State v. McGann, 132 Ariz. 296, 645 P.2d 811 (1982) (fundamental error is error that goes to the foundation of the case, or which takes from the defendant a right essential to his defense).