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State v. Dak

Court of Appeals of Arizona, First Division, Department A

October 15, 2013

STATE OF ARIZONA, Appellee,
v.
JOHN GATWICH DAK, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause Nos. CR2011-161764-001 CR2010-108592-001 CR2009-160237-001 CR2010-137399-001 The Honorable Phemonia L. Miller, Judge Pro Tempore

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee

James Haas, Maricopa County Public Defender Phoenix By Margaret M. Green, Deputy Public Defender Attorneys for Appellant

MEMORANDUM DECISION

KENT E. CATTANI, Judge

¶1 John Gatwich Dak appeals from the sentences imposed after a jury found him guilty of four counts of aggravated driving under the influence ("aggravated DUI").[1] Dak argues the superior court committed fundamental error by "imposing an enhanced sentence based on historical prior felony convictions that [were] not proved according to law." For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND[2]

¶2 In the early morning hours of December 7, 2011, Phoenix Police officers stopped Dak for erratic driving. Dak admitted he had been drinking, and a subsequent blood test determined Dak had a blood alcohol concentration ("BAC") of 0.193. Dak was arrested and charged with four counts of aggravated DUI.

¶3 Before trial, the State alleged Dak had three historical prior felony convictions: (1) CR2009-160237-001: aggravated DUI, a Class 4 felony committed September 15, 2009 and convicted April 9, 2010; (2) CR2010-108592-001: criminal trespass, a Class 6 felony committed February 13, 2010 and convicted April 9, 2010; and (3) CR2010-137399-001: criminal trespass and possession or use of marijuana, Class 6 felonies committed July 16, 2010 and convicted November 8, 2010. The State also alleged Dak had committed the 2011 aggravated DUIs while on probation imposed for each of the three alleged historical prior felony convictions.

¶4 A jury found Dak guilty of the four counts of aggravated DUI as charged. After the jury determined guilt, the State presented evidence of Dak's release status at the time of the 2011 aggravated DUIs. Dak's probation officer identified Dak and testified that, as of December 7, 2011, Dak was on felony probation stemming from his convictions in CR2009-160237-001, CR2010-108592-001, and CR2010-137399-001. The probation officer had personally met with Dak on December 1 to review all conditions of probation for each of the three cases. On the defense's motion, the court admitted as evidence certified copies of the sentencing minute entries in CR2009-160237-001, CR2010-108592-001, and CR2010-137399-001. The jury found beyond a reasonable doubt that, at the time of the 2011 aggravated DUIs, Dak was on felony probation in all three prior cases.

¶5 At sentencing for the 2011 aggravated DUIs, the court did not receive additional evidence of Dak's prior convictions, but found "the State proved the allegation that [Dak] had at least two or more prior felony convictions at the time [Dak] committed the offense." The court sentenced Dak as a category three repetitive offender to concurrent, presumptive terms of 10 years' imprisonment for each count of conviction.[3] See Ariz. Rev. Stat. ("A.R.S.") § 13-703(C), (J).[4] The court also revoked probation and ordered terms of imprisonment in the three consolidated cases.

¶6 Dak timely appealed. 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 -4033(A).

DISCUSSION

¶7 Dak argues the superior court imposed an illegal sentence because his historical prior felony convictions were not proven "during a hearing on the priors to the court." Because Dak did not object to the sentence enhancement before the superior court, we review only for fundamental, prejudicial error. State v. Henderson, 2 ...


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