State v. LuqueState v. Luque
- Reporters:
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- Before:
- Shelley
OPINION
SHELLEY, Retired Judge. **Luis Perez Luque (“defendant”) appeals from his conviction for third-degree burglary and sentence. We reverse the judgment.
We view the facts in the light most favorable to sustaining the verdict. State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989). The dеfendant was charged by information with one count of aggravated assault, a class 3 felony, and one count of third-degree burglary, a class 4 felony. The amended information alleged that the aggravated assault charge was a dangerous felony. The information was again amended to allege that the defendant had five prior felony convictions.
On appeal, the defendant relies on Article 2, Section 23 of the Arizona Constitution and Ariz.Rev.Stat.Ann. section (“A.R.S. §”) 21-102(A) to argue that he was entitled to a twelve-person jury because the maximum possible sentence for the charges оn which he was tried exceeded 30 years. The state responds that a jury of eight was sufficient because the defendant’s maximum possible sentence was only 27 years. The state assеrts that the maximum sentence on the aggravated assault charge is 15 years because the defendant could only be sentenced as a dangerous offender and his non-dangerous prior felony convictions may not be used for enhancement, and the maximum sentence for the burglary charge is 12 years.
The defendant faced convictions and conseсutive sentences for a class 4 felony and a class 3 dangerous felony, with five non-dangerous prior convictions.
1
Repetitive offenders, such as the defendant, are sentenced pursuant to
Subsection G provides:
Except as provided in § 13-604.01, upon a first conviction of a class 2 or 3 felony involving use or exhibition of a deadly weapon or dangerоus instrument ..., the defendant shall be sentenced to imprisonment for not less than the sentence and not more than three times the sentence authorized in § 13-701____
In addition, only specified dangеrous prior convictions, of which the defendant was not convicted, may be used for further sentence enhancement under
The relationship between subsections D and G of
We find nothing in conflict in these statutes as argued by [defendant]. As afirst offender of a dangerous offense, [defendant] certainly was subject to the sentencing provisions of A.R.S. § 13-604(G) . Since his prior convictions were nondangerous in nature, he was not subject to the enhanced punishment provisions of that subsection. However, there is nothing in the statutе which implies that he could not be sentenced as a repeat offender underA.R.S. § 13-604(D) . To hold otherwise would lead to the absurd result which [defendant] seeks.
Id. at 269, 625 P.2d at 332.
The defendant in the presеnt case was similarly charged as a dangerous offender with two or more non-dangerous prior felony convictions. Therefore, the sentencing considerations discussed in
Laughter
are applicable in determining the defendant’s maximum possible sentence for aggravated assault. Under
There is no indication that the defendant was aware of his right to a 12-person jury or that he waived his right to such a jury. See State v. Smith, 141 Ariz. 533, 535, 687 P.2d 1288, 1290 (App.1984). The state alternatively asserts that if the maximum cumulative sentence could havе been more than 30 years, the error is harmless because on remand he only would be retried on the burglary charge with an eight-person jury, the same as he received.
Because the defendant failed to object to the number of jurors at trial, absent fundamental error, we will not reverse.
State v. Henley,
141 Ariz. 465, 468, 687 P.2d 1220, 1223 (1984);
Smith,
141 Ariz. at 535, 687 P.2d at 1290. It is well-settled that a 12-person jury is required if a defendant’s cumulative possiblе sentence totals 30 years or more.
Division Two of this court recently addressed the necessity of retrying a defendant who was improperly tried by an eight-person jury and later acquitted of a charge so that his maximum expоsure was decreased to less than 30 years with the same number of jurors.
State v. Campos,
97 Ariz.Adv.Rep. 22, 23 (App. Oct. 8, 1991).
*
The court stated that “a second trial by the same number of jurors as returned the first verdict would vindicate no rights of the defendant,” and determined that neither the Arizona Constitution nor
Although this approach has practical appeal, we find that it abrogates the defendant’s constitutional right to be tried by a 12-person jury when a sentence for 30 years or more is authorized.
See
One such concern was explained in State v. Fancy, 139 Ariz. 76, 676 P.2d 1134 (App. 1983). In that case, when an eight-person jury deliberated, the defendant’s possible sentence exceeded 30 years. Id. at 77, 676 P.2d at 1135. After the jury returned a guilty verdict, however, the trial court permitted the state to withdraw certain allegations of prior felony convictions to decrease the defendant’s possible sentence to less than 30 years. Id. at 78, 676 P.2d at 1136. This court stated:
Unlike the facts in State v. Cook, supra [122 Ariz. 539, 596 P.2d 374 (1979)] the court’s action in this case allowed an eight person jury to actually deliberate on the fate of a defendant who was, atthe time the jury was deliberating, faced with the possibility of a term of imprisonment for more than thirty years. This was a clear violation of the statute and our сonstitution. If we were to affirm the trial court’s order, our holding would have the practical effect of allowing a criminal trial to an eight person jury in violation of the Arizona Constitution and state statute anytime the jury returned a verdict with convictions which would authorize a sentence of less than thirty years, even though the defendant faced a possible sentence in excess of thirty years at the start of the jury’s deliberation. But this is clearly not what the legislature intended by enactment of the statute.
Id. at 79, 676 P.2d at 1137.
There are no cases in Arizona except for Campos which have failed to find fundamental error where а jury of less than twelve persons was allowed to deliberate with regard to charges where the maximum cumulative sentences could exceed 30 years. We opine that the сommencement of deliberations is the crucial point. The fact that the jury acquits on one or more charges leaving the maximum cumulative permissible sentence to be less than 30 years does not cure the failure to try the defendant with a 12-person jury.
The judgment and sentence of the trial court are vacated and this case is remanded to the trial сourt for a new trial.
TAYLOR, P.J., and GERBER, J., concur.
Notes
NOTE: The Honorable Melvyn T. Shelley was authorized to participate in this case by the Chief Justice of the Arizona Supreme Court pursuant to
. The presumptive sentences for a class 4 and class 3 felony are 4 and 5 years, respectively.
Review denied and ordered not officially published June 2, 1992. See Ariz.Rules of Civil Appellate Procedure, Rule 28(f).