A.R.S. 13-604 Interpretation
In State v. Christian, Ariz. 47 P.3d 666 (2002), the Court ruled that a conviction sentenced under 13-901.01 meets the requirements of a "historical prior felony conviction" for sentence enhancement purposes under A.R.S. 13-604. Ariz. at, P 13, 47 P.3d at 669-70.
In accordance with Christian, the Court found nothing in 13-901.01 to indicate that the resulting conviction remains anything but a felony conviction.
Under Rule 609, however, a felony conviction alone is not dispositive for impeachment purposes. See Ariz. R. Evid. 609.
In State v. Hurley, 154 Ariz. 124, 741 P.2d 257 (1987), the Arizona Supreme Court articulated four reasons for its conclusion that the commission of an offense while on release from confinement pursuant to A.R.S. 13-604.02 was a sentencing factor that could be determined by the court. Hurley, 154 Ariz. at 130, 741 P.2d at 263.
The State contends that release status pursuant to A.R.S. 13-604(R) is merely a sentence enhancement.
The Hurley court concluded that the United States Supreme Court had not presented a bright-line test for deciding when a factor that affects a sentence must be submitted to a jury. 154 Ariz. at 130, 741 P.2d at 263.
In Hurley, Justice Feldman reasoned that being on release is a factor to be considered once the elements of the underlying offense have been found and that being on release had never been recognized as an element of an offense but had been long recognized as a sentencing consideration. Hurley, 154 Ariz. at 130, 741 P.2d at 263.
In State v. Powers, 154 Ariz. 291, 742 P.2d 792 (1987), however, the 13-604.02(A) allegation was that defendant committed the current offense while on "escape from confinement." 154 Ariz. at 292, 742 P.2d at 793.
The court concluded that, because "escape" was a separate crime and not just a release status, defendant was entitled to a trial by jury on that allegation under the reasonable doubt standard. Id. at 294, 742 P.2d at 795.
The court based its decision on "independent state grounds" and the Arizona Constitution. Id. at 294-95, 742 P.2d at 795-96.
In State ex rel. Romley v. Hauser, 209 Ariz. 539, 541-42 n.2, P13, 105 P.3d 1158, 1160-61 n.2 (2005), referencing generally the amendments to what is now A.R.S. 13-604(W)(2), the court noted that "these changes to the measurement calculus were designed to eliminate so-called 'Hannah priors.'" Id.
Hauser addressed whether offenses that did not qualify under A.R.S. 13-604(W)(2)(c), because they exceeded the five-year time period, could be used for sentencing enhancement purposes under A.R.S. 13-702.02 (2001). Id. at 540, PP 1-2, 105 P.3d at 1159.
That latter section pertains to a person "who is convicted of two or more felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions as defined in 13-604." A.R.S. 13-702.02(A).
In holding that such felony offenses could be used for sentence enhancement under 13-702.02, the court made the following statement:
The 1993 amendments made a number of other significant changes to the statutory framework.
Among other changes, the legislature enacted revised time limits on the use of prior convictions for sentence enhancement under 13-604. 1993 Ariz. Sess. Laws, ch. 255, 7 (codified at 13-604(V)); see Christian, 205 Ariz. at 68 P 15 n.11, 66 P.3d at 1245.
The legislature also changed the relevant inquiry with respect to the time limits. Before 1993, the relevant measurement was from the date of the prior conviction to the date of the present offense. See A.R.S. 13-604(A) (1989) ("A person who . . . stands convicted of a class 3, 4, or 5 felony . . . and who has previously been convicted of any felony within ten years next preceding the date of the present offense.").
Since 1993, the relevant measurement has been from the date of the prior offense to the date of the present offense. See A.R.S. 13-604(V)(2)(b) ("Any class 2 or 3 felony . . . that was committed within the ten years immediately preceding the date of the present offense."); A.R.S. 13-604(V)(2)(c) ("Any class 4, 5 or 6 felony . . . that was committed within the five years immediately preceding the date of the present offense.").
These changes to the measurement calculus were designed to eliminate so-called "Hannah priors." See State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980) (holding that under prior version of statute sequence of convictions, rather than offenses, determined eligibility for enhancement); State ex rel. Collins v. Superior Court, 142 Ariz. 280, 282, 689 P.2d 539, 541 (1984) (relying on Hannah for the proposition that "it was not necessary that the 'prior conviction' be also a prior offense"). Hauser, 209 Ariz. at 541-42 n.2, P13, 105 P.3d at 1160-61 n.2.