                          NOTICE: NOT FOR PUBLICATION.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.

                        VINCENT SMITH, Appellant.

                             No. 1 CA-CR 13-0561
                              FILED 07-08-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-128732-001
               The Honorable Harriett E. Chavez, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

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



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.


H O W E, Judge:

¶1           Vincent Smith appeals his convictions for two counts of
aggravated assault and one count of interfering with judicial proceedings,
and a life sentence with possibility of release after 25 years imposed
pursuant to A.R.S. § 13-706(A). Finding no error, we affirm Smith’s
convictions and sentence.

                  FACTS AND PROCEDURAL HISTORY

¶2            In June 2012, Smith attacked his wife with a knife in
violation of an order of protection. Smith was subsequently indicted for
attempted second degree murder (Count 1); aggravated assault (Counts 2
and 3); and interfering with judicial proceedings (Count 4).

¶3            The State filed an Allegation of Serious Offense/Life
Imprisonment pursuant to A.R.S. § 13-706(A) on September 6, 2012, four
months before trial commenced, but a week after a Donald 1 hearing. At
that hearing, Smith rejected an offer to plead guilty to attempted second-
degree murder and face a potential sentence of 10.5 to 21 years even
though he was advised that if he were convicted of all counts, he faced a
potential 65.75 years in prison. Although the plea offer did not have an
expiration date, the court did not conduct a second Donald hearing
advising Smith of the potential life sentence because of the Serious
Offense allegation. After trial, Smith was found guilty on all counts except
second degree murder.

¶4            Before sentencing, Smith’s counsel moved for relief from
application of A.R.S. § 13-706(A), arguing that the State had failed to
allege the sentencing enhancement before Smith rejected the State’s plea


1        State v. Donald, 198 Ariz. 406, 418 ¶ 46, 10 P.3d 1193, 1205 (App.
2000).




                                      2
                             STATE v. SMITH
                            Decision of the Court

offer, and that Smith first learned of the possibility for a life sentence after
trial. After oral argument, the court concluded that the State’s and defense
counsel’s failure to advise Smith at the Donald hearing that he faced a
mandatory minimum life sentence, and the State’s failure to hold a second
Donald hearing after filing the notice of enhancement, violated Smith’s
right to effective assistance of counsel and his due-process rights. The
court noted, however, that an evidentiary hearing was necessary to
determine whether Smith “was in fact aware of the minimum life
sentence, and if the lack of such knowledge materially affected his
decision to refuse the plea,” and that this issue could only properly be
addressed in a post-conviction relief evidentiary hearing. The court
concluded that, under these circumstances, it was required to sentence
Smith pursuant to A.R.S. § 13-706(A), and leave determination whether
the sentence must be vacated to a post-conviction relief proceeding.

¶5            At sentencing, the court found that Smith had two prior
serious offenses—aggravated assault, a class 3 nondangerous felony, and
arson of an occupied structure, a class 2 dangerous felony—and that one
of his current aggravated assault convictions was his third serious offense.
As a result, the court imposed a life sentence with possibility of release
after 25 years pursuant to A.R.S. § 13-706(A). Smith filed a timely notice of
appeal.

                               DISCUSSION

¶6            Smith argues that the superior court abused its discretion in
sentencing him pursuant to A.R.S. § 13-706(A) because it rightly
concluded that his due-process rights were violated by the superior
court’s and the State’s failure to personally inform him at a Donald hearing
before trial that he faced a mandatory life sentence if convicted. We
review constitutional issues de novo. State v. Dann, 220 Ariz. 351, 360 ¶ 27,
207 P.3d 604, 613 (2009). We reject Smith’s argument.

¶7            A defendant has a due-process right to pretrial notice of the
potential range of sentence. State v. Waggoner, 144 Ariz. 237, 239, 698 P.2d
320, 322 (1985). The State satisfied Smith’s due-process rights by filing the
Allegation of Serious Offense/Life Imprisonment Pursuant to A.R.S. § 13-
706(A) and mailing it to defense counsel four months before trial. See
Waggoner, 144 Ariz. at 239, 698 P.2d at 322 (holding that citation to
enhancement statute in indictment and filing of documents before trial
referring to parole status satisfied due process); State v. Hollenback, 212
Ariz. 12, 15-16 ¶ 9-11, 126 P.3d 159, 162-63 (App. 2005) (holding that




                                       3
                            STATE v. SMITH
                           Decision of the Court

citation to enhancement        statute    in   indictment   satisfied   notice
requirement).

¶8            Smith does not cite to any legal authority, and we know of
none, that would require the superior court or the prosecutor to personally
advise Smith of the potential punishment he faced before trial
commenced. Due process requires a court to personally advise a
defendant of potential punishment before the defendant accepts a plea to
the charges or submits to a bench trial because both measures require a
waiver of the constitutional privilege against compulsory self-
incrimination and the rights to a jury trial and to confront one’s accusers.
See Boykin v. Alabama, 395 U.S. 238, 243-44 n.7 (1969) (holding that waiver
of such rights cannot be presumed from a silent record); State v. Janise, 116
Ariz. 557, 559, 570 P.2d 499, 501 (1977) (holding that the trial court
reversibly erred in failing to inform defendant of range of possible
sentences before a bench trial based solely on contents of police report).

¶9             Nor are we aware of any legal authority to support the
proposition that the State was required to request, or the court was
required to conduct, a second Donald advisement once the State had filed
its notice of intent to seek a life sentence. Cf. Donald, 198 Ariz. at 418, ¶¶
46-47, 10 P.3d at 1205 (holding that a defendant suffers constitutional
injury only if the defendant (1) loses a plea as a consequence of ineffective
assistance of counsel; (2) such loss is not relieved by defendant’s receipt of
fair trial; and (3) the court has the power to fashion a remedy for such
deprivation); State ex rel Thomas v. Rayes, 214 Ariz. 411, 415 ¶ 20, 153 P.3d
1040, 1044 (2007) (holding that a defendant may bring such claims of
ineffective assistance of counsel only in a Rule 32 post-conviction
proceeding). The prosecutor and the superior court did not violate Smith’s
due-process rights by failing to personally notify Smith of the life sentence
he faced. Accordingly, the superior court did not err by sentencing Smith
pursuant to A.R.S. § 13-706(A).

¶10           Moreover, to the extent that Smith argues that he proceeded
to trial without personal knowledge of the punishment he faced, resolving
this issue requires determining whether he was aware from any source
that he faced a mandatory life sentence. Such a claim cannot be resolved
on the record before us, rather; it can only properly be addressed in a Rule
32 petition for post-conviction relief.

¶11         We also reject Smith’s argument that his sentence must be
vacated because the finding that this was his third “serious offense” was
not submitted to the jury in accordance with the constitutional rule


                                      4
                             STATE v. SMITH
                            Decision of the Court

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) that “[o]ther 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.” Id. at 490. Finding that a prior
conviction is a “serious offense” is an issue of law for the trial judge that
falls within the Apprendi exception for the “fact of a prior conviction.” See
Cherry v. Araneta, 203 Ariz. 532, 534 ¶ 8, 57 P.3d 391, 393 (App. 2002)
(holding that Apprendi permits the trial judge to determine whether a prior
conviction is a “violent offense” for purposes of a statutory denial of
probation for commission of drug offenses); State v. Pandeli, 204 Ariz. 569,
571 ¶¶ 6-7, 65 P.3d 950, 952 (2003) (holding that the Sixth Amendment
does not require a jury to determine the existence of a prior conviction for
a serious offense as aggravating circumstance in a capital case); State v.
Ault, 157 Ariz. 516, 520, 759 P.2d 1320, 1324 (1988) (holding pre-Apprendi
that a “sensible” construction of the governing statute dictates that
determination of whether an offense is a serious offense is a purely legal
question.).

¶12            Smith additionally argues that the failure to submit the
serious offense allegation to the jury violated Arizona Rule of Criminal
Procedure 19.1(b)(2). But Smith’s argument fails because that rule only
establishes the order of proceedings, not whether the allegation must be
submitted to a jury. And as we have concluded, the nature of the prior
conviction is not an issue requiring a jury finding. Finally, the finding that
Smith’s current conviction was for a “serious offense” was inherent in the
jury verdict that Smith was guilty of aggravated assault, a dangerous
offense. See Blakely v. Washington, 542 U.S. 296, 303 (2004) (court may
impose sentence on basis of facts “reflected in the jury verdict”).

¶13          In any event, any error in failing to submit the determination
whether the prior or current convictions were “serious offenses” was
necessarily harmless because no reasonable jury could have failed to find
that Smith had committed a third “serious offense.” See State v. Large, 234
Ariz. 274, 280 ¶ 19, 321 P.3d 439, 445 (App. 2014) (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 of his
offense).

¶14           We also reject Smith’s argument that his life sentence with
possibility of release after 25 years pursuant to A.R.S. § 13-706(A)
constituted cruel and unusual punishment in violation of the Eighth




                                      5
                            STATE v. SMITH
                           Decision of the Court

Amendment. 2 We review the constitutionality of a sentence de novo. State
v. Johnson, 210 Ariz. 438, 440 ¶ 8, 111 P.3d 1038, 1040 (App. 2005).

¶15          The Eighth Amendment “does not require strict
proportionality between crime and sentence but instead forbids only
extreme sentences that are grossly disproportionate to the crime.” State v.
Berger, 212 Ariz. 473, 476 ¶ 13, 134 P.3d 378, 381 (2006) (citations and
internal quotation marks omitted). In determining whether a threshold
showing of “gross disproportionality” has been made, we first determine
whether the legislature has a reasonable basis for believing that the
sentencing provision “advances the goal of its criminal justice system in
any substantial way.” Id. at 477 ¶ 17, 134 P.3d at 382 (citations and internal
punctuation omitted). We then consider whether “the sentence of the
particular defendant is grossly disproportionate to the crime he
committed.” Id. “A prison sentence is not grossly disproportionate, and a
court need not proceed beyond the threshold inquiry, if it arguably
furthers the State’s penological goals and thus reflects ‘a rational
judgment, entitled to deference.’” Id. at 477 ¶ 17, 134 P.3d at 382.

¶16            Smith’s life sentence for a third “serious offense” with
possibility of release after 25 years is not grossly disproportionate because
A.R.S. § 13-706(A) furthers one of the legislature’s declared penological
goals: protecting the public from persons whose conduct threatens public
safety. See A.R.S. § 13-101.01 (providing that it is a “fundamental purpose
of the criminal law to identify and remove from society persons whose
conduct continues to threaten the public safety” by commission of a third
“violent or aggravated felon[y]” offense, as defined in A.R.S. § 13-
706(F)(2), imposing life sentence with possibility of release after 35 years);
Wigglesworth v. Mauldin, 195 Ariz. 432, 437 ¶ 17, 990 P.2d 26, 31 (App.
1999) (“[R]ecidivist statutes such as the one applying to Wigglesworth
reflect the states’ interest in dealing in a harsher manner with those who
by repeated criminal acts have shown that they are simply incapable of
conforming to the norms of society as established by the criminal law.”)
(internal punctuation marks and citation omitted); Ewing v. California, 538
U.S. 11, 30–31 (2003) (rejecting claim that sentence of 25 years to life
imposed for minor felony under California’s “three strikes law” is cruel

2      Although Smith also alleges a violation of Article 2, Section 15, of
the Arizona Constitution, which similarly prohibits the infliction of cruel
and unusual punishment, we interpret the Arizona provision no
differently than its federal constitution counterpart. See State v. Davis, 206
Ariz. 377, 380 ¶ 12, 79 P.3d 64, 67 (2003).



                                      6
                           STATE v. SMITH
                          Decision of the Court

and unusual punishment); Rummell v. Estelle, 445 U.S. 263, 284–85 (1980)
(holding no violation of Eighth Amendment to sentence three-time
offender to life in prison with possibility of parole).

¶17           Moreover, Smith’s life sentence with possibility of release
after 25 years pursuant to A.R.S. § 13-706(A) was amply supported by his
extensive criminal history of violent offenses (including the prior
aggravated assault and arson of an occupied structure), his conviction for
aggravated assault, a dangerous offense and domestic violence offense,
and his related convictions for two counts each of witness tampering and
influencing a witness. The court found that the aggravating factors far
outweighed any mitigating factors, and that Smith was a “true danger to
the community.” These circumstances supply additional support for our
conclusion that the sentence was neither “grossly disproportionate” to the
offense Smith committed for purposes of the Eighth Amendment nor
“excessive” under A.R.S. § 13-4037(B).

                            CONCLUSION

¶18          For the foregoing reasons, we affirm Smith’s convictions and
sentences.




                                  :gsh




                                    7
