                                                                         FILED BY CLERK
                                                                             NOV 10 2005
                            IN THE COURT OF APPEALS                           COURT OF APPEALS
                                STATE OF ARIZONA                                DIVISION TWO
                                  DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )           2 CA-CR 2005-0026
                                Appellee,     )           DEPARTMENT A
                                              )
                    v.                        )           OPINION
                                              )
PETER DAMIEN KEITH,                           )
                                              )
                               Appellant.     )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20042396

                     Honorable Frank Dawley, Judge Pro Tempore

                                       AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Diane Leigh Hunt                                           Tucson
                                                                    Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. McCaffery                                                          Tucson
                                                                   Attorneys for Appellant


H O W A R D, Presiding Judge.


¶1           After a jury trial, appellant Peter Keith was convicted of aggravated assault of

a police officer and sentenced to an enhanced, presumptive 3.75-year prison term. On

appeal, he contends he was entitled to a jury trial on his prior convictions and that his
double jeopardy rights were violated because the court found he had prior convictions after

the jury was dismissed. Because he does not have the right to have a jury determine prior

convictions and double jeopardy principles do not apply to the prior conviction

determination, we affirm.

                                  PRIOR CONVICTIONS

¶2            Keith first argues that the trial court erred by enhancing his sentences based

on prior convictions not found by a jury beyond a reasonable doubt, in violation of

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Because Keith did not object on this ground below, we review solely for fundamental error.

See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error

is error that deprives a defendant of a right essential to his or her defense and of a fair trial

or that goes to the very foundation of the defendant’s theory of the case. State v. Siddle,

202 Ariz. 512, ¶ 4, 47 P.3d 1150, 1153 (App. 2002).

¶3            Keith argues that the Supreme Court’s analysis in Almendarez-Torres v.

United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), “cannot withstand

Apprendi’s constitutional analysis” and that Apprendi requires that the fact of a prior

conviction be submitted to a jury and found beyond a reasonable doubt. But Apprendi

expressly exempts prior convictions from the requirement of a jury trial: “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.” 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (emphasis added);



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see also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004); accord

United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004) (citing

widespread agreement among federal circuit courts that Blakely preserves exception for prior

convictions). In reliance on these cases, our supreme court has recognized the prior

convictions exception in the capital and non-capital contexts. See, e.g, State v. Fell, 210

Ariz. 554, ¶¶ 8-9, 115 P.3d 594, 597 (2005); State v. Ring, 204 Ariz. 534, ¶ 55, 65 P.3d

915, 937 (2003). We are not allowed to anticipate how the Supreme Court may rule in the

future. See Myers v. Reeb, 190 Ariz. 341, 343, 947 P.2d 915, 917 (App. 1997); see also

State v. Eichorn, 143 Ariz. 609, 613, 694 P.2d 1223, 1227 (App. 1984) (“Whether prior

decisions of the Arizona Supreme Court are to be disaffirmed is a question for that court.”).

                                  DOUBLE JEOPARDY

¶4             Keith next argues that the double jeopardy clause of the federal constitution

prohibited the state from proving his prior convictions, which he claims are additional

offense elements under Apprendi, after the jury was dismissed. He argues that the holding

of Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998), which

excepts noncapital sentencing proceedings from double jeopardy clause protection, “cannot

withstand the analysis of Apprendi and its progeny.” Because Keith did not object on this

ground below, we review solely for fundamental error. Henderson, 210 Ariz. 561, ¶ 19, 115

P.3d at 607.

¶5             The Fifth Amendment to the United States Constitution provides that “[n]o

person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”



                                               3
U.S. Const. amend. V. This guarantee protects against successive prosecution for the same

offense after acquittal or conviction, and against multiple punishments for the same offense.

United States v. Dixon, 509 U.S. 688, 695-96, 113 S. Ct. 2849, 2855-56, 125 L. Ed. 2d

556, 567-68 (1993).

¶6            In Monge, the United States Supreme Court held that the Double Jeopardy

Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing

context, even after a reversal based on insufficient evidence. 524 U.S. at 728-29, 118 S. Ct.

at 2250-51, 141 L. Ed. 2d at 623-24. The Apprendi court acknowledged Monge and

expressly recognized its continuing validity. See Apprendi, 530 U.S. at 488 n.14, 120 S. Ct.

at 2362 n.14, 147 L. Ed. 2d at 454 n.14; see also United States v. Corrado, 286 F.3d 934,

939 (6th Cir. 2002) (stating that Apprendi did not overrule Monge). Accordingly, Apprendi

did not expressly or impliedly overrule Monge. Furthermore, Keith had no right to a jury

trial on his prior convictions so the dismissal of the jury was irrelevant to any double

jeopardy issue.

¶7            Keith further argues that the “functionalist approach to defining offense

elements,” adopted in Blakely, indicates that the Supreme Court no longer approves of

Monge. But in Blakely, the court continued the exception for proof of prior convictions

based on Almendarez-Torres.        Blakely, 542 U.S. at 322, 124 S. Ct. at 2548.           In

Almendarez-Torres, the Supreme Court approved of a bifurcated procedure in which the

court accepted the defendant’s guilty plea pursuant to a plea agreement and later determined

the existence of prior convictions. 523 U.S. at 226-27, 118 S. Ct. at 1222, 140 L. Ed. 2d



                                              4
at 357. The same principles would apply to this situation in which a jury had determined

guilt. Aragon v. Wilkinson ex rel. County of Maricopa, 209 Ariz. 61, ¶ 7, 97 P.3d 886, 889

(App. 2004) (“[I]f the court accepts the guilty plea, jeopardy attaches . . . .”). Because the

Supreme Court has excepted prior convictions from inclusion as elements of the offense

under Apprendi, we see nothing in Apprendi or Blakely that disapproves of this bifurcated

approach approved in Almendarez-Torres under which the existence of prior convictions

is determined after conviction. Moreover, both the United States Supreme Court and the

Arizona Supreme Court have previously rejected the broader argument that double jeopardy

principles require the state to prove a defendant’s prior felony convictions to the same jury

that determined the underlying substantive offense. Oyler v. Boles, 368 U.S. 448, 452, 82

S. Ct. 501, 503-04, 7 L. Ed. 2d 446, 450 (1962); State ex rel. Neely v. Sherrill, 168 Ariz.

472, 474-75, 815 P.2d 396, 401-02 (1991). Pursuant to controlling precedent, double

jeopardy does not attach to the court’s determination of Keith’s prior convictions. We find

no error, fundamental or otherwise.

¶8            We affirm Keith’s conviction and sentence.


                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge

CONCURRING:


____________________________________
J. WILLIAM BRAMMER, JR., Judge




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____________________________________
PETER J. ECKERSTROM, Judge




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