                          NOTICE: NOT FOR PUBLICATION.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.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                       ROBERT MILLANES, Appellant.

                             No. 1 CA-CR 13-0421
                                FILED 07-22-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-128512-001
               The Honorable Phemonia L. Miller, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                           STATE v. MILLANES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.


G O U L D, Judge:

¶1             Robert Millanes (“Defendant”) appeals from his conviction
and sentence for four counts of Aggravated DUI in violation of Arizona
Revised Statutes (“A.R.S.”) sections 28-1383(A)(1) and (2). Defendant’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this
Court that after a search of the entire appellate record, no arguable ground
exists for reversal. Defendant was granted leave to file a supplemental
brief in propria persona, and has done so raising several issues.

¶2            Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96
(App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1) (West 2014).1 Finding no reversible error, we affirm.

                       Facts and Procedural History2

¶3           Defendant was arrested on May 31, 2012, on suspicion of
driving while under the influence of alcohol. Around 3:30 in the
afternoon, Raul Rios, a driver who sets up barricades for roadside
construction sites, called 911 after he noticed a gray vehicle approaching
the construction site very slowly, stopping and starting. Rios observed
that the vehicle was causing traffic to back up because it was blocking


1      Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.

2      We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293,
778 P.2d 1185, 1189 (1989).




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                           STATE v. MILLANES
                           Decision of the Court

both lanes of the road. When the car stopped directly behind Rios’s work
truck, Rios rushed over to the car, opened the car door, shifted the car into
park, and removed the keys from the ignition. The gray vehicle’s driver,
later identified as Defendant, was the only person in the car. Rios noted
the Defendant’s eyes were closed, and when Rios tried to speak to
Defendant, he could only mumble in response.

¶4          The police arrived several minutes later. Rios told officers
what had happened and that Defendant was still in the vehicle. After
paramedics completed their evaluation of Defendant’s health, officers
removed Defendant from the vehicle. Defendant “just fell to the ground.”
Defendant was unresponsive to officers, and his eyes were closed.

¶5            Officers smelled a strong odor of alcohol in the car and
removed a 750-milliliter bottle of Hennessy cognac, with about a quarter
of the liquid remaining in the bottle, from the drivers-side floorboard of
the car. Two officers helped Defendant to a patrol car and placed
Defendant under arrest. At the police station, officers obtained a search
warrant and drew Defendant’s blood. The results of the test showed that
Defendant’s blood alcohol concentration was 0.368 percent.

¶6           On the date of his arrest, Defendant’s drivers’ license had
been both suspended and revoked. Defendant also had two prior DUI
convictions within eighty-four months of this arrest.

¶7            The State charged Defendant with four counts of
Aggravated DUI, all class four felonies, in violation of A.R.S. §§ 28-
1383(A)(1) and (2). The State also alleged Defendant’s historical felony
convictions, pursuant to A.R.S. § 13-703.

¶8            Before trial, the court held a hearing regarding the State’s
Rule 609 motion to impeach Defendant with his prior felony convictions.
The court ruled that if Defendant testified, his prior convictions could be
used for impeachment purposes as long as the priors, except Defendant’s
prior aggravated DUI conviction, were properly sanitized. Defendant
chose not to testify at trial.

¶9           At trial, the court denied the Defendant’s Rule 20 motion for
a judgment of acquittal and held that there was “substantial evidence to
warrant a conviction.” At the end of the five-day jury trial, the jury
returned guilty verdicts on all four counts.

¶10          The court held a bench trial regarding Defendant’s prior
felony convictions. The State alleged, and the court found, that Defendant


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                          STATE v. MILLANES
                          Decision of the Court

had six historical prior felony convictions that could be used at
sentencing.3

¶11           At sentencing, the court held that the aggravating factors
outweighed any mitigating factors and sentenced Defendant to an
aggravated term of eleven years’ imprisonment for each count, each term
to be served concurrently. The court awarded Defendant 274 days credit
for his presentence incarceration.4 Defendant timely appealed.

                               Discussion

¶12           Defendant argues that his constitutional rights were
violated: (1) when the court used his prior convictions in the sentencing
phase of this offense and (2) when a new judge, separate from the judge
who presided over his trial, conducted post-trial hearings.

I.    Prior Convictions

¶13           In his supplemental brief, Defendant asserts that his
constitutional rights were violated when the trial court used a prior
conviction to aggravate Defendant’s sentence, thus violating his due
process rights guaranteed by the Fifth Amendment of the United States
Constitution (due process rights), equal protection rights as guaranteed by
the Fourteenth Amendment to the United States Constitution, and
violating the double jeopardy clause of the Fifth Amendment of the
United States Constitution. We disagree. Because Defendant did not



3      The court also found at the hearing that Defendant was on felony
parole on the day he committed the present offense; however, at the time
of sentencing the court did not impose an enhanced sentence pursuant to
A.R.S. § 13-708(C).

4      The record indicates that, prior to sentencing, Defendant was
incarcerated from May 31, 2012 through June 25, 2012; and then again
from September 24, 2012 through his sentencing on May 22, 2013. This
would result in a total of 265 days of presentence incarceration. It
appears, therefore, that the trial court erred in calculating Defendant’s
presentence credit by giving Defendant credit for nine days he did not
serve. However, because the State failed to appeal this issue, we will not
disturb the sentence imposed by the court on this issue. See State v.
Dawson, 164 Ariz. 278, 282, 792 P.2d 741, 745 (1990).



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                           STATE v. MILLANES
                           Decision of the Court

object on this ground below, we review solely for fundamental error. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).

¶14            Using a prior conviction at sentencing to enhance a sentence
does not, in general, raise constitutional concerns. See, e.g., State v. Ring,
204 Ariz. 534, 557, ¶ 60, 65 P.3d 915, 938 (2003) (citing Apprendi v. New
Jersey, 530 U.S. 466, 488 (2000) (holding that a judge may decide the “fact”
of a prior conviction for sentence enhancement purposes without violating
due process because prior convictions have already been proved through
proceedings incorporating procedural safeguards)). “[R]ecidivism — is a
traditional, if not the most traditional, basis for a sentencing court’s
increasing an offender’s sentence.” Almendarez-Torres v. U.S., 523 U.S. 224,
243 (1998) (noting that recidivism laws are currently in effect in all fifty
states). Defendant has alleged no facts, and we have found none, that
would lead us to question whether his due process or equal protection
rights were violated here.

¶15           Moreover, a prior conviction used as an aggravating factor
for sentencing purposes does not violate the double jeopardy clause. See
State v. Keith, 211 Ariz. 436, 438, ¶ 7, 122 P.3d 229, 231 (App. 2005)
(“Pursuant to controlling precedent, double jeopardy does not attach to
the court’s determination of [Defendant’s] prior convictions.”).

¶16           Therefore we find no error, let alone fundamental error, that
would warrant reversal of Defendant’s convictions and sentences under
these constitutional arguments.

II.    Trial Judges

¶17          Defendant also argues that his due process rights were
violated when the judge who presided over Defendant’s sentencing and
hearing regarding Defendant’s prior convictions was a different judge
than the judge who presided over his trial. We disagree.

¶18           “The constitutional right to a fair trial includes the right to a
fair and impartial judge.” State v. Ellison, 213 Ariz. 116, 128, ¶ 35, 140 P.3d
899, 911 (2006). Defendant cites to no authority, and we have found none,
that requires the judge who presided over the trial to also preside over a
sentencing hearing regarding prior convictions or a Defendant’s
sentencing. Because there is no indication that the sentencing judge
lacked fairness or impartiality, we conclude that there was no error in
allowing an adequate substitute for the trial judge to conduct post-trial
hearings.    Accordingly, Defendant’s convictions and sentences are
affirmed.


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                           STATE v. MILLANES
                           Decision of the Court

                                 Conclusion

¶19            We have read and considered counsel’s and Defendant’s
briefs, carefully searched the entire record for reversible error and found
none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure and substantial evidence supported the finding of guilt.
Defendant was present or waived his presence and was represented by
counsel at all critical stages of the proceedings. At sentencing, Defendant
and his counsel were given an opportunity to speak, and the court
imposed a legal sentence.

¶20           Counsel’s      obligations    pertaining      to    Defendant’s
representation in this appeal have ended. Counsel need do nothing more
than inform Defendant of the status of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz.
582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days
from the date of this decision to proceed, if he so desires, with an in propria
persona motion for reconsideration or petition for review.




                                 :gsh




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