Opinion
No. 1 CA-CR 13-0493
07-22-2014
STATE OF ARIZONA, Appellee, v. AYATOLLAH KHOEMENI HARRISON, Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Colin F. Stearns Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.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.
Appeal from the Superior Court in Maricopa County
No. CR2012-142385-001
The Honorable Edward W. Bassett, Judge
AFFIRMED IN PART, VACATED IN PART
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould joined. PORTLEY, Judge:
¶1 Ayatollah Khoemeni Harrison appeals his conviction and sentence for misconduct involving weapons. Specifically, he challenges his sentence, arguing that the State failed to file a formal allegation before trial that it intended to seek an enhanced sentence if he was convicted because he had been on parole at the time of the offense. For the reasons that follow, we affirm his conviction and sentence, but vacate that portion of the sentencing order requiring Harrison to pay for DNA testing.
FACTS AND PROCEDURAL BACKGROUND
¶2 At the sentencing hearing, the superior court stated that Harrison was going to receive an enhanced sentence pursuant to Arizona Revised Statutes ("A.R.S.") section 13-708(C). Harrison, however, did not object, and his lawyer acknowledged that Harrison could not get any less than ten years' imprisonment, the presumptive sentence. As a result, the court imposed the presumptive ten-year sentence "because he was out on parole when this occurred" and had at least two prior convictions.
We cite the current versions of the statutes because they have not been amended in pertinent part since the date of this offense, August 9, 2012.
DISCUSSION
¶3 Harrison now argues that the court erred by enhancing his sentence because the State failed to file a formal allegation before trial notifying him of its intent to seek the enhancement. Because he did not object before the sentence was announced, we review his argument for fundamental prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶4 Harrison argues that due process requires the State to formally notify a defendant before trial if it intends to seek to enhance his sentence pursuant to § 13-708(C). The State did not file a separate notice at the outset of the case. The joint pretrial statement that was filed three months before trial, however, states that Harrison "was on parole, so if convicted, he would have to be sentenced to a minimum of the presumptive term," or ten years. Although Harrison contends that the notice in the joint pretrial statement was inadequate because his release status was the functional equivalent of an element of a greater offense as we stated in State v. Large, 234 Ariz. 274, 279-80, ¶ 16, 321 P.3d 439, 444-45 (App. 2014), the notice in the joint pretrial statement was sufficient to satisfy the due process right to pretrial notice of the potential range of sentence. See State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 (1985) (holding that the citation to the enhancement statute in the indictment and the filing of documents before trial, referring to parole status, satisfied due process).
¶5 Moreover, Harrison has failed to persuade us that he suffered any prejudice because the State did not file a separate notice at the outset of the case. He was aware of his status. He agreed with the State about his status in the joint pretrial statement three months before trial. He testified at trial that he was on parole. At sentencing, he acknowledged that the court was required to impose an enhanced sentence because of his parole status. He had notice that the State was alleging that he was on parole at the time of the offense and the allegation was going to impact any sentence. Consequently, we find no fundamental reversible prejudicial error.
¶6 Harrison also argues for the first time in his reply brief that his sentence must be vacated because the finding that he was on parole was not submitted to the jury in accordance with the rule in Alleyne v. United States, 133 S. Ct. 2151, 2162-63 (2013), which requires facts that increase the mandatory minimum sentence to be submitted to a jury. He, however, has waived the argument. See State v. Brown, 233 Ariz. 153, 163, ¶ 28, 310 P.3d 29, 39 (App. 2013).
¶7 Even if we do not apply waiver to the issue, we will not grant relief. Alleyne was decided three days after the court sentenced Harrison. However, because Alleyne announced a new rule of constitutional law, its holding is applicable to all cases pending on direct review. Large, 234 Ariz. at 280, ¶ 16, 321 P.3d at 445. Any error in failing to submit the finding to the jury, however, was harmless, because Harrison testified at trial that he was on parole at the time of the offense. See id. at ¶ 19 (holding that error in submitting parole status to jury was harmless, because no reasonable jury could have found that defendant was not on parole at the time). Consequently, we find no reversible error.
¶8 Harrison also argues, and the State concedes, that the court erred in ordering Harrison to pay for DNA testing. Because A.R.S. § 13-610 does not authorize a court to order a defendant to pay for DNA testing, we vacate that portion of the sentence. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013).
CONCLUSION
¶9 Based on the foregoing reasons, we affirm Harrison's conviction and sentence, but vacate the order requiring him to pay for his DNA testing.