State v. Allie

710 P.2d 430, 147 Ariz. 320, 1985 Ariz. LEXIS 264
CourtArizona Supreme Court
DecidedNovember 15, 1985
Docket6233
StatusPublished
Cited by71 cases

This text of 710 P.2d 430 (State v. Allie) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Allie, 710 P.2d 430, 147 Ariz. 320, 1985 Ariz. LEXIS 264 (Ark. 1985).

Opinions

HAYS, Justice.

After a jury trial, defendant, John Tim Allie, was convicted of one count of burglary in the first degree, A.R.S. § 13-1508, and one count of armed robbery, A.R.S. § 13-1904. Because defendant committed these crimes while on probation, the trial court sentenced defendant to life imprisonment without possibility of parole for twenty-five years on each count, A.R.S. § 13-604.01. The sentences were to run concurrently with each other, but consecutively to the sentence reimposed upon revocation of his probation. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4035. We affirm.

The facts follow. On March 5, 1983, at approximately 11:45 pm, defendant and his accomplice, James Bushey, robbed a Shakey’s Pizza Parlor in Tucson, Arizona. Both men wore masks. Defendant was armed with a knife and Bushey had a gun. The two men forced the employees to lie on the floor and then bound them with tape. Defendant and his accomplice proceeded to take between $2,000 and $2,500 before fleeing the restaurant.

After several weeks of investigation, the police obtained the confession of Michael Hart, an employee working at the restaurant that night. Hart admitted that he had been the “inside man” in the robbery and had only pretended to be a victim. Hart also identified defendant and Bushey as the two men who robbed the restaurant.

Defendant raises several issues on appeal.

I. CONSTITUTIONALITY OF A.R.S. § 13-604.01

Defendant raises numerous issues regarding the constitutionality of A.R.S. § 13-604.01.

A. Ex Post Facto

Defendant claims that A.R.S. § 13-604.01.1 in its application to the present case, violates the ex post facto clause of the United States Constitution, art. I, § 9. A.R.S. § 13-604.01 mandates a life sentence for a person convicted of a felony involving the use of a deadly or dangerous instrument while on probation for a felony conviction. This statute was enacted after the defendant was placed on probation, but prior to his committing the crimes herein. Defendant thus argues that application of this statute, to him, retroactively increases his sentence of probation to life imprisonment. We recently considered the same allegation and concluded that A.R.S. § 13-604.01 does not constitute an ex post facto law.

We recognize that the Arizona Legislature may not enact a law which imposes any additional or increased penalty provided for a crime after its commission. (Citations omitted). A.R.S. § 13-604.01, however, does not increase defendant’s sentence on his first conviction. His probationary sentence did not become more onerous. The probationary period did not increase, the conditions of his proba[323]*323tion were not changed and his compliance with the conditions was not made more difficult. Additionally, no increased or additional penalty on the crime underlying his probation was imposed due to § 13-604.01 (footnote omitted). The enactment of A.R.S. § 13-604.01 in 1982 merely put defendant on notice of the consequences of any further criminal convictions. See State v. Pendergraft, 124 Ariz. 449, 604 P.2d 1160 (App.1979) (A.R.S. § 13-604 did not punish defendant for past conduct but merely notified him of increased punishment for future felony); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (enhanced punishment for repeat offenders, not additional penalty for earlier crime but stiffened penalty for latest crime)____ We find no ex post facto violations.

State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985). Defendant has presented nothing to warrant reassessment of our position.

B. Equal Protection

Defendant also argues that A.R.S. § 13-604.01 violates his right to equal protection by mandating a life sentence for those criminals within the statute, but not imposing equal punishment upon those persons outside the scope of the statute who commit similar crimes. To accept the defendant’s argument, we must find that this particular legislative classification “bears no rational relationship to a legitimate state purpose.” State v. Noriega, 142 Ariz. 474, 487, 690 P.2d 775, 788 (1984). This court has repeatedly found otherwise:

The legislature could rationally conclude that a felon who commits an armed offense recently after release from confinement for another felony, and in violation of the conditions of this release from confinement, has simply not been rehabilitated. ... It is also rational to protect the public by deterring felons on release from confinement from committing armed offenses.

Id., State v. Williams, 144 Ariz. 433, 444, 698 P.2d 678, 689 (1985). Therefore, we find that the statute does not violate the basic concepts of equal protection.

C. Cruel and Unusual Punishment

Defendant also maintains that his sentence constitutes cruel and unusual punishment under the eighth and fourteenth amendments to the United States Constitution. In determining whether a sentence is unconstitutionally excessive, the Supreme Court set out a four-part test in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637, 649 (1983). This court must consider: (1) the gravity of the offense; (2) the harshness of the penalty; (3) the sentence imposed on others in the same jurisdiction; and (4) the sentence imposed on similarly situated defendants in other jurisdictions. See State v. Cocio, 147 Ariz. at 282, 709 P.2d at 1341.

It should be noted that this court recently engaged in such an analysis in two similar cases and upheld the sentence in each instance. State v. McNair, 141 Ariz. 475, 687 P.2d 1230 (1984); State v. Noriega, supra.

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Bluebook (online)
710 P.2d 430, 147 Ariz. 320, 1985 Ariz. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allie-ariz-1985.