State v. Hensley

488, 550; P. Id. at at at common law. CONCLUSION (Lyman, at 551 also id. at 226 P. see ¶ driving in hold reckless viola- 13 We (disagreeing majority be- dissenting) J. jury-eligible was a tion of A.R.S. 28-693 was not identical with cause ordinance law, right to a at common Urs’ offense offense). jury-entitled, common-law 2, by Article jury guaranteed is trial thus driving decide that a vehicle 10 We Constitu- 23 and 24 of Arizona Sections safety per disregard of “in reckless tion. therefore affirm. We property,” violation sons 28-693(A), operating in the character of JOHN C. GEMMILL CONCURRING: “ endanger [any] a motor vehicle so ‘as to FIDEL, Judges. and NOEL ” jury-eligible property ]’ [or] individual Colts, at at law. 282 U.S. offense common

73, 52; rel. v. see also ex Dean 51 S.Ct. (Aldrich), City Tucson 369, (citing Colts and driving jury- was a recognizing that reckless law); at common offense P.3d 848 (1985) O’Brien, 68 Haw. Arizona, Appellant, (“[R]eckless driving ... at was indictable STATE and ... entitled the defendant common law trial.”). jury Consequently, guar Urs is HENSLEY, Roy Appellee. David jury anteed a Article Sections 24 of constitution. our No. 1 CA-CR 00-0508. argues next that we should The State Arizona, Appeals Court Aldrich, court’s decision follow this 1, Department E. Division Rothweiler/Dolny test and held applied the driving that reckless in violation Sept. 2001. jury-eligible offense. Ald- 28-693 is not rich, 141 Ariz. at case, recognized court reckless

driving jury eligible at is a crime that was factor law but reasoned that “this

common alone is not determinative.” P.2d at Because the court concluded absent, it held factors were other driving reckless that a defendant accused of jury trial. was not entitled to contends, 687 P.2d at 371. as Urs reasoning longer correct in Aldrich no recent supreme of the court’s more case, In that pronouncement Benitez. clearly if an offense is stated law, jury eligibility at traceable to common firmly jury right established even “the two factors.” in the absence of other Benitez, 7 P.3d at 102. reason, we cannot follow Aldrich. For us, finally urges for various reasons, determining policy to refrain from offense-by-offense basis. jury eligibility on an constrained to follow the Because we are Rothweiler/Dolny test mandated our court, request. supreme we must decline

OPINION

TIMMER, Presiding Judge. Roy Hensley 1 After David violated the “Prop- probation imposed terms of his (“A.R.S.”) 200,” osition Ariz.Rev.Stat. (Supp.2000), the trial court terminated probation his as unsuccessful. The State of order, appeals contending Arizona by failing Hensley’s the court erred to revoke probation impose prison light and term crimes, of his convictions for violent him un- made 13-901.0KA). der A.R.S.

¶ 2 Hensley We must decide whether was disqualified mandatory probation from of his earlier convictions, though violent-crime even allege prove State failed to and them before Hensley’s possession convictions for of dan- gerous drugs drug paraphernalia. and We Hensley hold that under A.R.S. because the allege prove State failed to and the convic- required by tions as (Supp.2000). Consequently, the trial court by refusing Hensley’s did not err to revoke impose and term. How- ever, terminating court erred Hens- ley’s probation continuing rather than it and terms, imposing additional 13-901.01(E). We therefore vacate terminating probation order and remand with instructions to reinstate Hens- ley’s probation impose necessary and addi- tional conditions. AND

FACTUAL PROCEDURAL

BACKGROUND ¶3 July On Hensley possession dangerous drugs, felony, possession a class four paraphernalia, felony. a class six Hensley did not had been convict- ed of or indicted for a violent crime. Two later, Hensley months entered Romley, County Maricopa Richard M. At- agreement plea Hensley into a in which Grant, torney, by Deputy County Gerald R. agreed plead charges no contest to both Phoenix, Attorney, Attorneys Appellant. right preliminary hearing. and waive his to a Haas, parties Maricopa County agree The did not James J. Public Defender, Stark, Deputy Louise Public convictions would be treated as Defender, Phoenix, Attorneys Appellee. 200 offenses. November On plea agreement Hensley’s probation accepted

trial court to revoke Hensley guilty charges. prison term. found of both ¶4 pre-sentence report proclaimed stated its court next armed options had “convicted of two been were to continue and was to ten robberies 1987 sentenced The court then Hens- or terminate it. asked years prison.” a half In of these “sincerely proba- and to ley want[ed] if he utilize convictions, that Hens- the State contended just ... terminated [be] tion resources or probation ley was probation supervision deal from and left to and therefore A.R.S. on After [his] [his] addiction own.” prison re- recommended a term. The court Hensley preferred he to be released stated and, instead, jected this sus- recommendation probation, the court it. from terminated placed pended imposition of and sentence appeal the trial This followed. We review Hensley years probation on of intensive four court’s order de novo because the issues super- charge years for the and first two statutory interpretation involve and thus probation charge. The vised for the second questions present of law. v. Rein Zamora court record not reflect whether the does stein, 1227, 1230 Proposition treated crimes as 200 of- (1996). fenses. DISCUSSION peti- 5 On December the State Hensley’s proba- tioned the court to revoke Applicability Proposition I. 200 had terms. tion because he violated its argues The trial court -State violation, Hensley court admitted the and the by concluding it could not revoke erred probation. filed reinstated him on impose and petition probation a second revoke allege term because had failed to the State April hearing At a on June held prove a violent convic- and historical crime 21, 2000, Hensley vio- admitted that he had Hensley’s prior tion convictions. Accord- probation by failing lated the of his terms 13-901.01(B)1 State, ing al- successfully complete a abuse substance with a lows the court to remove defendant counseling program. on this admis- Based eligi- from historical violent crime conviction sion, Hensley had the trial court found that if bility probation Proposition 200 even of his The probation. violated the terms allege prove had failed to and court then ruled that convictions conviction. offenses, Proposition

were for and holding The relies on this State therefore, not, court revoke could Court, Superior in Bolton imprisonment unless he and a term of (App.1997), support P.2d 1332 its con- had been of or for a vio- convicted indicted Bolton, rejected trial tention. court lent crime. A.R.S. required probation plea that because former re- court further ruled that was 13-901.01(F) (1997) defen- excluded allege quired they if from dants prove any indict- and such convictions or previously or more had been convicted two prior Hensley’s in order ments convictions any times of offense listed that subsection. mandatory probation him disqualify from 13-901.01(A). at 1333. on its Based argued that the trial court erred record, defendant Hensley’s prior review of the court allege had failed to because although “arguably” he had com- noted crimes, convictions prior as mitted the State had convictions, 604(P) (Supp.1996), provides en- “which prove allege failed to those sentencing if hanced convictions convicted of the before reason, or ‘charged in indictment information the court declined offenses. For this 13-901.01(B) provides but be sen- follows: for in section instead shall 1. Section as pursuant provisions of tenced to the other Any person who has been convicted chapter this title. defined in indicted for a violent as provided is not ” any time a violent crime at court----’ dant committed or found admitted actually (quoting A.R.S. the date the case 945 P.2d at 1333-34 before 13-604(P)). tried.... section, purpose of this B. For the rejected de- appeal, this court 9 On any act crime” includes criminal “violent argument held that a trial fendant’s physical injury that results death or may reject plea requiring Proposition deadly weapon use of a criminal probation if the defendant had con- instrument. victions, though not al- even the State had at 1334. leged them. ¶ 11 court held that A.R.S. The Benak opined Significantly, the court as follows: applies to A.R.S. section 13-901.01 Unlike requires the State to before allege prior require that the State does a violent that a defendant has committed they before are deemed to ex- convictions in to later exclude that defen- order Therefore, a ist. we hold that whether probation eligibility pursuant to dant from pur- entitled to be sentenced defendant is 13-901.0KB). 336-37, § A.R.S. 13-901.01 is a matter suant to section ¶ 14, at 130-31. The court based its court; by it is not a law to be decided the § holding on the reference A.R.S. 13- pleading plea bargaining to be matter of 901.01(B) 13-604.04, legisla- § the to A.R.S. by decided the State. history provisions, tive of the two consider- impact did not address the Id. The court fairness, language ations of fundamental 13-604.04, § which was enacted A.R.S. § analogous present to A.R.S. Regardless, urges the us to 1997. 13-604(P), generally gov- § A.R.S. § similarly that 13-901.01 conclude A.R.S. convictions, danger- allegations erns require allege prior it to did not ousness, and commission of offenses while on convictions that he had been convicted of ¶¶ 10-14, pretrial release. a violent crime in order to dis- indicted for distinguished P.3d at 129-31. The court Bol- sentencing qualify him for by confining holding plea bar- ton its ¶ gaining n. context.2 ¶ recently the 10 This court addressed P.3d at n. 3. argument Bolton and State’s raised under ¶ agree holding in 12 We with the Benak, rejected In Ariz. it. analysis. repeat its Ac Benak do (review May (App.2001) P.3d 127 denied cordingly, reject argument we State’s 23, 2001), we were asked to decide whether by and hold that the trial cotirt did not err required by § 13-604.04 State was A.R.S. refusing Hensley’s probation and to revoke trial that the defendant was before term. of our deci a drug-posses- on his sion, Hensley’s argument we do not address previously conviction because he had sion “violent that his convictions were not convicted of a violent crime. 199 Ariz. been § defined under 13-604.04. crimes” as A.R.S. ¶ 334, 5, 18 at 128. 13-604.04 However, compelled points we are to address provides, part, in relevant as follows: dissenting colleague. raised our allegation A. The that the defendant Benak was 13 The Dissent contends crime shall be committed violent wrongly decided because A.R.S. information and ad- the indictment or § 41- to effectuate A.R.S. was enacted the court. The court mitted or found (1999),3 amended at the the defen- 1604.15 which was shall allow the that contrary, Notwithstanding any distinguishable law to the 2. Bolton is also because any person of a violent crime who is convicted applicability A.R.S. court did not address the is committed as defined in 13-604.04 that Thus, 13-901.01(B). to A.R.S. person the influence of while the governs disagree with the Dissent that Bolton we drug marijuana, or a narcotic Dissent, ¶ 30. the issue before us. as defined in 13-3401 is not any release on basis until applies treatment of 3. Section 41-1604.15 Pursuant entire sentence has been served. prisoners by Department of Corrections 41-1604.07, the director shall include provides as follows: noneligible earned release legislature alleging commission of such crimes. same time the enacted A.R.S. dure for Dissent, Instead, legislature’s conclusion 13-604.04. This we conclude that warranted, asserts, by the Dissent apply actions demonstrate an intent to also timing the enactment of A.R.S. provisions other than A.R.S. provision deals with because 41-1604.15. See McCandless allegations that a defendant “committed” Co., United S. Assurance not that he was convicted of or (when legisla- forth in indicted for such an offense as set statute, existing presumes ture amends ¶27. 13-901.0KB). Dissent, change existing legislature intended some suggest- the Dissent overlooks other factors law). only provision in Title 13 Because ing legislature intended crime,” to “violent other than refers 604.04(A) to A.R.S. First, legislative history 901.01(B),4 facets of the legislature we conclude that the ignored the Dis- for A.R.S. apply to the intended the former statute to sent, intended indicate view, Thus, contrary latter. to the Dissent’s provision to A.R.S. legislative history of A.R.S. 901.01(B). 13-604.04, 13-901.01, Sections supports holding in Benak. adopted part and 41-1604.15 were all Second, we the Dissent believe implement enacted to scheme meaning § unduly restricts the of A.R.S. Benak, 336, Proposition 200. 199 Ariz. at 604.04(A) by interpreting phrase “the ¶ 11, P.3d at 130. Prior to enactment of 18 ex- defendant committed a violent crime” as 13-604.04, § § A.R.S. A.R.S. cluding of a an conviction 41-1604.14) (then § contained a defi- A.R.S. ¶ Dissent, violent crime. If the State nition of “violent crime” that was identical to alleges proves con- that a defendant was § the definition now set forth in A.R.S. § victed of a violent see A.R.S. 604.04(B). Benak, pointed Id. As out in 901.01(B), necessarily alleges the defen- 13-901.01(B) originally § A.R.S. referred to dant “committed” the offense. The convic- the definition of “violent crime” contained proves tion the commission of the offense. 1997, § former A.R.S. Id. ¶ Moreover, the Dissent’s narrow con- § 41- legislature renumbered A.R.S. 41-1604.15, § contra- removed the struction of the term “committed” 1604.14 as A.R.S. 13-604.04(A) § definition of “violent crime” from that sec- that dicts its assertion A.R.S. tion, newly-enact- placed § the definition applies only to 41-1604.15. Like A.R.S. 13-604.04, § ed which also established 13-901.0KB), A.R.S. applies per- § § 41-1604.15 procedure alleging for that a defendant had sons “convicted of a violent crime.” The Id.; committed a violent crime. 1997 Ariz. requires proof latter statute Laws, 6, 1, legislature §§ Sess. ch. 3. The person [was] crime “committed while the 41-1604.15, changed then A.R.S. and later specified drugs. influence” of 13-901.01(B), by referring A.R.S. A.R.S. Thus, interpretation if Dissent’s of 13- for the definition of “violent 604.04(A) correct, proof person mere that a Id.; Laws, 261, ch. crime.” 1999 Ariz. Sess. a violent crime not invoke “committed” would § 12. Similarly, under the Dissent’s 41-1604.15. view, proof that a “committed” vio- ¶ legislature 15 If the had intended to § 41- crime would not invoke A.R.S. lent 13-604.04(A) application limit of A.R.S. 1604.16, persons “con- which refers as the Dissent main A.R.S. Consequently, the victed” of such offenses. tains, removing we discern no reason interpretation of “committed” in Dissent’s Title 41 definition of “violent crime” from 13, along proce- pro- render the placing it in Title with a new would (1999). eligible prisoner crime” is A.R.S. 41-1604.16 credit class and the is not 41-1604.16(B) placement provides, part, earned release credit in an in relevant class. persons previously convicted of a violent "as defined in 13-604.04” 13, only provision Title other than 4. The outside parole community supervision. “violent mentions conditions of to assess new dealing with court inapplicable to statute vision imposed violate persons who that could not have result “violent crimes”-a Although Proposition legislature. by the See U.S. intended been argue the trial court Communications, specifically Dep’t fails to Inc. v. Ariz. West terminating 319, 323, 16, Revenue, 972 P.2d erred Ariz. pro- (“[T]he imposing new conditions rather than rule of cardinal bation, this issue because we address statutes statutory [is] construction Hensley’s disposi- clause, legality of placed the interpreted that no sen- State so should be issue, we conclude that the tence, tion at superfluous or or word is rendered by failing fol- void.”). illegal reasons, disagree imposed an sentence we For these 13-901.0 (E). v. See State low A.R.S. legislature’s use of the the Dissent that the Dawson, 164 Ariz. intent evidenced an term “committed” (1990) (“[T]he impose a court’s failure to to A.R.S. 13-604.04 not 901.01(B). legal is one of those rare situations sentence if can seek review even from which the state Benak The Dissent also contends that court.”); object in the trial State it failed to concluding refer- logic” by “strains Brewer, n. 13-901.01(B) to the defini- ence A.R.S. (1992) (appellate power to imposes procedur- “violent crime” tion of predicated illegally lenient sentence correct on the requirements of A.R.S. al Falco, State); upon appeal filed Dissent, 29. Proposition 200 cases. (App. correct, assuming the Dissent is But even 1989) (A not fall within sentence that does unchanged. was not result is unlawful; our scheme specifically incorporate A.R.S. context, a “sen- an order for into tence.”). the former statute - Indeed, §§ 41-1604.15 and eases. 21 The trial court does not have expressly incorporate A.R.S. 1604.16 do not authority grant probation. Rath inherent 13-604.04(A). Instead, they also refer to er, power the court derives its from for the of “vio- 13-604.04 definition conform to legislature, and its exercise must lent crime.” v. Wood authorization. State 359, 360, 8, 544, ruff, Ariz. 997 P.2d 545 196 ¶ Additionally, legislature en- 19 when the Generally, finds (App.2000). once the court originally acted A.R.S. probation, violated its that a defendant has amended A.R.S. 41-1604.16 to refer to revoke, modify, only options or contin in definition of “violent crime” A.R.S probation. Lyons, ue the terms of Laws, 604.04, B. subsection 1997 Ariz. Sess. 17, 744, (1990); 15, Ariz. P.2d 746 167 804 later, 6, Approximately ch. one month 13-901(0) (Supp.2000); Ariz. amended A.R.S. 27.7(c)(2). Moreover, if a defen- R.Crim. P. the reference to “subsection B.” and removed proba- of intensive dant violates the terms Laws, 246, § 7. The 1997 Ariz. Sess. ch. tion, are limited to the court’s alternatives legislature’s specifically expanding ref- act of terms. A.R.S. revocation or modification beyond the sub- erence to A.R.S. 13-917(B) (Supp.2000). No statute autho- containing pertinent definition probation terminate rizes the court holding. supports the Benak court’s further unsuccessful, case. as it did Cf. McCandless, at 953 P.2d See 191 13-901(E) (authorizing to ter- Thomason, 363, 366, 918; Ariz. 162 justice will probation if “the ends of minate (“A (App.1989) statute 783 P.2d 812 if the conduct of the defendant be served and conjunction with other explained be should it.”). probation on warrants subject statutes which relate to the same general purpose.”). have the same ¶22 options are further The court’s terms of if a defendant violates the curtailed Probation II. Termination of § 13-901.01. probation imposed under A.R.S as “Unsuccessful” 447, 449, Young, Ariz. Evans v. See (“When 1148, 1150 provi ¶20 correctly P.2d points out 13-901.01(E) general conflict with those statute requires the trial sions probation Consequently, special special ... statute as “unsuccessful.” statute 13-901.01(E) prevails.”). provides terminating pro- as we vacate the court’s order bation and remand to the trial court with follows: instructions to reinstate proba- placed A who has been impose necessary additional conditions. provisions tion under the of this section and who is determined the court to be VOSS, CONCURRING: EDWARD C. probation have violation of shall new Judge. probation conditions of established court. The court shall select the addition- THOMPSON, Judge, dissenting. necessary, including al conditions it deems view, my State v. Benak was treatment, community intensified ser- wrongly protected decided. is not vice, arrest, probation, intensive home by Proposition 200 and should have been any other such short of incarcer- sanctions proba- after violated sentenced to he ation. tion on numerous occasions. His added.) language (Emphasis plain simply terminated should not have been 13-901.01(E) states that the court imprisonment. without I would reverse the impose “shall” additional conditions on one contrary conclusion. probation. The who violates the terms of department In Benak another of this mandatory word “shall” is a term. In re court determined that notice that defen- JV-94-000086, Navajo County Juv. Action dant would not be entitled to (App. Ariz. because of a 1995) (“The ordinary meaning of the word provided by an violent offense must be ‘shall,’ statute, in the context of a is to im- appropriate pretrial allegation pursu- formal Thus, duty.”). pose mandatory the clear ant to 13-604.04. 199 Ariz. at 13-901.01(E) required language of A.R.S. depended This P.3d determination the trial court to additional terms of §on 13-901.01’s reference to the definition Hensley, pro- probation on not terminate his of “violent crime” in and on two Because the court bation as “unsuccessful.” requiring pretrial allegations cases did not follow the mandate of A.R.S. convictions, Rodgers, Ariz. State v. 901.01(E), disposition unlawful. (App.1982), and appreciate 23 We the obstacles faced 514, 522-23, Guytan, State v. dealing persons the trial court who (App.1998). 595-96 See repeatedly violate ¶¶ 10, 14, 18 Both P.3d at 129-31. However, forth in 200 cases. as set A.R.S Guytan allegations Rodgers and involved 13-901.01(E), problem § the solution to this pursuant expressly re- to a statute which by releasing a cannot be to reward violator quires timely pretrial allegations. See A.R.S. Instead, probation. him from the court 13-604(P). § not Therefore those cases do employ legally should all available means to allegation help whether such an determine penalize offending probationer. an Accord- 13-901.01, § which has no under ingly, we remand to the trial court with express requirement. a ex- And close proba- instructions to reinstate pertinent language amination of the impose necessary additional terms. tion and allegation requirement of reveals that the 13-901.01, § § not referable to 13-604.04 is CONCLUSION chronologically, preceded it but rather which reasons, foregoing § we hold For the to the substance of 41-1604.15 which was by refusing exactly the contemporaneously not with that the trial court did err amended § in Bill 2475 Hensley’s probation and a enactment of 13-604.04 House revoke Laws, However, published at 1997 Arizona Session prison term. we also decide that 6, § incorrectly ch. the court terminated that, majority moving 13-901.01 continued in the defini- section 13-901.01.

5. The asserts Title 13 years tion of "violent crime” from Title 41 to of 13-604.04 for two after the enactment legislature intention to indicated its of "violent to refer to Title 41 for a definition apply § 13-604.04 to situations have the new signal meant crime.” If the arising those under covered in Title such as 13-901.01(B) proof unless the State’s December after its enact- invoke 27 Since initiative, a by 13-901.01 has established conviction.7 ment voter drug use personal mandated argued that Benak panel in a 28 The (A), offender was unless the under subsection by accomplished Senate Bill textual revision previous pursuant to sub- a violent criminal legislative intention in 1999 indicated a (B) repetitive pur- was a offender section allegation of requirement (G). subsection suant to Section 604.04(A) drug offender to cases where a had existence in when it was only came into panel prior violent crime. The asserted: a rewrite in tandem an extensive enacted 13-901.01(B) reference [T]he section 41-1604.15, mandatory requires §of which changed of the definition violent crime violent crimes while committed “41-1604.15, B” subsection from section drugs. offender is under influence specification of a with no that, requires thus particular subsection. Sess. mandatory prison time under effectuate the Laws, 261, § [Section ch. before State must 1604.15(B)was as section 13- renumbered charged is a trial that the crime in the case 604.04(B) refer- appears It thus ]. allegation required The under violent one. ence in section 13-901.01 to 13-604.04 was com- is “that the defendant incorporate intended to all of section crime____” (Emphasis add- mitted a violent 604.04, including requirement. the notice ed). appropriate, as Such an 336, 11,18 P.3d at 130. 41-1604.15,6 a the trial case under where reference, however, yet allegedly specific on the violent offense has appearing be to a place taken and therefore it could not definition alleged particular of a subsection former that defendant was convicted sense, But an allegation violent crime. 13- made some since the latter statute had 604.04(A) definition, more “that defendant committed reference to than one reader, example, crime” does not cannot invoke referred the indeed 13-901.01(B), provides again which that a to Title Title referred protect- explanation of “convicted” of a violent crime is not an what was meant any event, ed mandate of term “controlled substance.” 901.01(A). given case, prosecutor superfluous In a deletion of the reference to beyond any readily prove question that a de- B” for a ex- could “subsection definition previously plained committed a violent the obvious circumstance that fendant proof clearly in it but such fail to 13-604.04 has one definition would 13-604(P) prison, just 13-604.04 would in Title seeks the new state sign. apparent requires designation a similar offenses deemed missed its own sense Parenthetically, designat- placing requirement "dangerous.” 13-604.04 that the alleged purposes “violent” for violent nature offense be ed as so; theft, burglary, intrinsically Title 13 close rela- not be before trial in arises from its need 13-604(P) DUI, deadly requirement weap- tionship if a could be “violent” crimes involved, dangerous charged dangerous crimes be on instrument were or that the nature of or Thus, requirement injury allegation similarly alleged. resulted. the would function serve a notice as charged would be to such crimes which some- allegation majority re- 6. The contends that the conviction, superfluous prior applied if a what to apply to quirement of 13-604.04 does not would be the “violent” nature of which deter- 41-1604.15 because “the latter statute re- prior the nature offense and mined quires while that the commit the offense apparent from the of the convic- documentation drugs.” specified influence of under the tion. necessary majority with has confused what is allegation 13- An what is sufficient. sufficient, says majority legislature really necessary, invoke but not to 7. The "convicted,” just mandatory prison by § 41- meant "committed.” term called quite capable invoke man- has shown that it is That it is not sufficient to 1604.15. ways. using datory prison inapplicable to in distinct does not these distinct words make 13-604(P) (providing determination whether is mandated. See merely requires a or that crime was “commit- "conviction” new Section 13-604.04 bond). if the was released on be "violént” ted” while defendant offense denoted as palpably holding subsection B. It strains P.2d at 1334. This hand, logic, on the other to contort a refer- question authoritative on the whether 13- ence to “a violent crime as defined in 13- 901.01(B) obeyed. must be Bolton is not procedural 604.04” to make it a re- basis, any explainable on other such as that quirement appearing separate in a subsec- authority reject “it involves a trial court’s to 13-901.01(B) (emphasis tion. See A.R.S. profferd plea agreement.” [sic ] a The trial added). And it is obvious that 13- judge rejected plea could not have Bolton’s 901.01(B) was amended 1999 because unless he were correct on the law his through apparent oversight an the statute conclusion that was not mandated purportedly had referred to a definition to be notwithstanding priors were not al- found in 41-1604.15 but which was not leged. emphatically rely Bolton does not there. judge the inherent discretion of a trial as to a agree panel 30 I with the Benak plea bargain, but stands on the trial court’s entirely dispositive Bolton is not of the issue correct determination that the defendant had here, presented before us because it a differ- priors whether the state did or did not argument,8 I thoroughly disagree ent but them.9 panel’s with that treatment of Bolton in ev- panel sup- 31 The Benak found further ery respect. other This court in Bolton port position for its the fact that wholly heeded the authoritative directive of 604(P) requires pretrial allegation priors, people drug of this state that minor missing point legislature pre- offenders, seriously but not recidivist crimi- punishments scribed the enhanced nals, imprisoned. should be treated and not thoroughly competent provide 604 and was to people did not direct lenient treatment prosecutorial responsibility and discretion drug of minor offenders and then leave to regard alleging to the circumstances prosecutors lawyers state and defense dis- require punishments, that would while positive power to include serious recidivists people extraordinary here the have made an protection. in that As we said Bolton: regarding punishment directive crime and require [S]ection 13-901.01 does not disregard- and made no allowance for it to be allege prior convictions before 13-901.01(B) Further, § ed. does not en- they Therefore, are deemed to exist. we punishment hance a felon’s as does 13-604. hold that whether a defendant is entitled punisha- makes a felon pursuant to be sentenced subject ble as other felon not 901.01 is a matter of law to be decided court; extraordinary directive of pleading it is not a matter of plea bargaining go prison. to be decided the State. that certain felons shall not attempted general may may In Bolton the defendant This statement be true or it false, 13-604(P) general allegation requirement applied clearly §of be but Benak it as repetitive drug priors wrong. alleged 13— Benak’s was a violent 901.01(F)[which (G) panel apparently ]. is now offense. The misread the defi- Here, seeking writing, at 1333-34. the defendant is nition of violent ‘violent “[a] different, special allegation require- crime,’ being ‘any in addition to criminal act that ment, enacted in a bill that addressed the com- physical injury,' results in death or is one that mission of a violent crime while under the influ- ‘any deadly weapon involves criminal use of " situation, drugs, ence of to his own which is that dangerous (citing instrument.’ Id. past. 604.04(B)). offender with a violent Actually, the definition set forth is inclusive, merely and the elements are in the alternative; injury, wrong germane either resultant death or Benak is also for reasons not deadly appeal. timely allege weapon the instant The state did the use of instru- ment, prior, felony aggravated violent a class three suffices to make a crime "violent.” A.R.S. assault, 334, 3,¶ felony aggravated in Benak. 199 Ariz. at Class three announcing "dangerous” necessarily injury After assault involves either separate concepts, panel deadly weapon "violent” mud- instrument. them, 1204(A)(1), 13-1204(A)(2), 13-1204(B) asserting "allegation §§ dled that an of non 13— (C). certainly dangerous prior pro- Surely felonies does not of a violent allege felony provide vide notice that the State intended to does notice that the State intend- 7, violent crime.” 18 P.3d at 129. ed to a violent crime. case, a violent In this felon, and he was entitled The trial 13-901.01. Hensley’s proba- simply terminating

erred it, an- repeatedly after he violated tion Benak, court, in panel of this other lawyers ability avoid a giving erred allowing them to public directive and clear from the ordi- offenders shield provisions criminal code. nary punitive of our majority I 33 Because conclude that Benak, following I errs here dissent. 31 P.3d 857 Arizona, Appellee, The STATE Jerry BASS, Appellant. Donald

2No. CA-CR 00-0237. Arizona, Appeals Court 2, Department Division B. Sept.

Case Details

Case Name: State v. Hensley

Court Name: Court of Appeals of Arizona

Date Published: Sep 20, 2001

Citation: 31 P.3d 848

Docket Number: 1 CA-CR 00-0508

Court Abbreviation: Ariz. Ct. App.