Opinion
2 CA-CR 2024-0065
10-30-2024
The State of Arizona, Appellee, v. Adam F. Rivas, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Christopher L. Scileppi PLLC, Tucson By Christopher L. Scileppi Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20223336001 The Honorable Richard E. Gordon, Judge
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Christopher L. Scileppi PLLC, Tucson
By Christopher L. Scileppi
Counsel for Appellant
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, Chief Judge:
¶1 Adam Rivas appeals from his conviction and sentence for aggravated assault, arguing the trial court erred when it considered a prohibited aggravating factor at sentencing. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Rivas. State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In August 2022, two firefighters with the Tucson Fire Department, Daniel Banales and John Binaculli, were dispatched to check on an unconscious person at a bus stop. Upon arrival, they found Rivas unconscious and non-responsive to verbal cues. Banales rubbed Rivas's sternum with a closed fist in an effort to wake him. Rivas "jumped up" and told the firefighters he was fine. They then called their dispatcher with an update to prevent more first responders from arriving on scene.
¶3 As the firefighters attempted to give their dispatcher a better description of Rivas and the area, Rivas ran towards Banales and attacked him, striking him in the face and head. Binaculli came to the aid of Banales and the two men subdued Rivas until police officers arrived and placed him under arrest.
¶4 Rivas was charged with aggravated assault pursuant to A.R.S. § 13-1204(A)(8)(c). After a two-day jury trial, he was convicted and sentenced to 3.75 years in prison. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Section 13-1204(A)(8)(c), classifies the assault of any "firefighter, fire investigator, fire inspector, emergency medical technician or paramedic engaged in the execution of any official duties" as aggravated assault if the defendant commits the assault "knowing or having reason to know" the victim is such a person. Violation of this statute constitutes a class six felony. § 13-1204(F).
Discussion
¶5 In his sole argument on appeal, Rivas argues the trial court erred in finding Banales's "emotional and physical harm" as an aggravating factor at sentencing. He asserts that although the state filed a Notice of Aggravating Factors before trial, "the jury was not ever asked to find any." Rivas contends the court "did not inquire about aggravating factors," and the state "did not raise the issue" of the harm suffered by Banales. And because the state was "required to prove all aggravating factors, except prior criminal history, to the jury" beyond a reasonable doubt, Rivas claims the court erred in considering the factor. Rivas further contends that while the court did not impose an aggravated sentence, it considered the "unproven" aggravating factor and weighed it against the mitigating factors for sentencing. He argues he might have been sentenced "to a minimum or mitigated term of imprisonment had [the court] not found the aggravating factor of emotional and physical harm."
¶6 We review de novo whether a court may use a particular factor to aggravate a sentence. State v. Dunbar, 249 Ariz. 37, ¶ 41 (App. 2020). Because Rivas did not challenge his sentence below, when he had an opportunity to do so before final judgment was entered, we review only for fundamental error. See State v. Joyner, 215 Ariz. 134, ¶ 5 (App. 2007); State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). To prevail, Rivas must show the trial court's consideration of the challenged aggravating factor constituted error that (1) went to "the foundation of the case," (2) took from him "a right essential to his defense" or (3) was "so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). If Rivas establishes either of the first two prongs of the Escalante test, he must also make a separate showing of prejudice; if he establishes the third prong, prejudice is presumed. See id. "We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion." Joyner, 215 Ariz. 134, ¶ 5.
¶7 The state introduced and the parties stipulated to the admission of Rivas's prior felony convictions. The trial court concluded two of the prior convictions counted as "historical prior conviction[s] for purposes of category calculation[]." At sentencing, arguing first, the state cited the prior convictions as well as the violent nature of the assault and Banales's emotional distress from the attack in its recommendation for a maximum sentence of 4.5 years' imprisonment. In response, Rivas requested the minimum sentence of three years, citing multiple mitigating circumstances such as his difficult background, struggles with substance abuse, remorse for his actions, and efforts at self-improvement while incarcerated. The court weighed Rivas's mitigating circumstances against the aggravators before imposing a presumptive term of 3.75 years. See A.R.S. § 13-704(B).
¶8 Rivas essentially argues the trial court violated the rule articulated in Blakely v. Washington, 542 U.S. 296, 301 (2004) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (quoting Apprendi v. New Jersey, 530 U.S. 466, 525 (2000))). But, in Arizona, the statutory maximum sentence is the presumptive sentence, which is what Rivas received. See Dunbar, 249 Ariz. 37, ¶ 41. Thus, there was no Blakely violation, and the court did not commit error.
Disposition
¶9 For the foregoing reasons, we affirm Rivas's conviction and sentence.