Opinion
No. 1 CA-CR 13-0081
01-16-2014
STATE OF ARIZONA, Appellee, v. WILLIAM FRANKLIN ELY, Appellant.
Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee C. Kenneth Ray II, Prescott Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CR930389
The Honorable Celé Hancock, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
C. Kenneth Ray II, Prescott
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Margaret H. Downie joined.
THOMPSON, Judge:
¶1 William Franklin Ely (defendant) appeals from the trial court's revocation of his probation and the sentence imposed. For the following reasons, we affirm.
¶2 In March 1994, defendant entered into a plea agreement and pled guilty to three counts of attempted child molestation relating to three separate victims all under the age of fourteen. The trial court accepted the plea agreement and sentenced defendant to an aggravated term of fifteen years in prison for count one (victim B.Y.). The court suspended the imposition of sentencing on counts two (victim J.T.) and three (victim S.P.) and placed defendant on lifetime probation to commence upon his release from prison.
¶3 Defendant was released from prison in November 2004. In the summer of 2012, defendant had unauthorized contact with a minor and attempted to conceal the contact from his probation officer, in violation of the terms of his probation. The state filed a petition to modify the conditions of defendant's probation and requested that he serve jail time as a sanction. Defendant served time in jail and was provided additional terms to his probation.
¶4 In August 2012, defendant admitted to having additional unauthorized contact with children. The state filed a petition to revoke defendant's probation, and the trial court held a probation violation hearing. The court found that defendant violated the terms of his probation and held a disposition hearing. The court, after "consider[ing] the entirety of the file . . . including the presentence report," found as aggravating factors 1) the harm to the child victims, and 2) that defendant had victimized multiple children. The court found as a mitigating factor defendant's support from community members. The trial court revoked defendant's probation and sentenced him to consecutive, aggravated terms of fifteen years in prison on counts two and three.
¶5 Defendant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
DISCUSSION
¶6 Defendant raises one issue on appeal: whether the trial court committed fundamental error by imposing aggravated terms of imprisonment "in the absence of alleged and proven or admitted aggravating circumstances." Because defendant failed to object to the sentences below, we review for fundamental error and resulting prejudice. See State v. Henderson, 210 Ariz. 561, 564-65, ¶ 8, 115 P.3d 601, 604-05 (2005).
¶7 Defendant argues that the trial court improperly imposed aggravated sentences after revoking his probation because a jury did not find the aggravating factors and he did not waive his right to a trial on the aggravating factors. The state concedes for the purposes of this appeal that there was fundamental error, but argues that defendant cannot establish prejudice. To establish prejudice, defendant must show that a reasonable jury could have reached a different result than the trial judge. Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609.
¶8 As the state acknowledges, only the emotional harm aggravator was statutorily enumerated at the time of these offenses. See A.R.S. § 13-702(D)(9) (1993) ("the court shall consider the following aggravating circumstances: . . . 9. The physical, emotional and financial harm caused to the victim . . .."). Thus, the trial court could have imposed an aggravated sentence only if it properly found defendant's victims suffered emotional harm. Defendant must therefore show that a reasonable jury could have reached a different conclusion than the trial court's conclusion that defendant's victims suffered emotional harm by being molested by defendant.
¶9 No reasonable juror could conclude that defendant's victims did not suffer emotional harm. Defendant had been victim S.P.'s baseball coach and was a family friend when he began molesting S.P., who was ten or eleven at the time of the abuse. He was also a family friend of victim J.T., who was ten. Defendant's presentence report indicates that the victims underwent counseling to deal with their abuse. Nevertheless, the presentence report writer was still concerned about the emotional state of the victims, writing: "it needs to be considered that this type of behavior on young boys is extremely devastating and will be an issue that will affect them the rest of their lives." Because no reasonable juror could
conclude the victims did not suffer emotional harm, and our statutes reflect that such harm is a relevant consideration in aggravation of a sex offender's sentence, defendant was not prejudiced by the trial court's determination that the victims' emotional harm was an aggravating factor.
¶10 For the foregoing reasons, we affirm defendant's convictions and sentences.