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State v. Cooney

Court of Appeals of Arizona, Second Division

November 8, 2013

The State of Arizona, Appellee,
v.
Guillermo E. Cooney, Appellant.

Appeal from the Superior Court in Pima County No. CR20103945001 The Honorable Paul E. Tang, Judge

Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Section Chief Counsel, Phoenix and Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee

Isabel G. Garcia, Pima County Legal Defender by Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.

OPINION

ECKERSTROM, Judge:

¶1 After a jury trial, appellant Guillermo Cooney was convicted of four counts of aggravated driving under the influence of an intoxicant (DUI). Cooney now appeals, claiming evidence of time spent incarcerated was improperly admitted, the use of his two prior DUI convictions as elements in his current DUI case violated his right to protection from double jeopardy, and the trial court erred in giving the Portillo instruction on reasonable doubt. For the following reasons, we affirm Cooney's convictions and sentences.

Factual and Procedural Background

¶2 In November 2009, Cooney was stopped by an officer of the Marana Police Department for speeding. During the traffic stop, the officer noticed "the odor of intoxicants coming from the vehicle." When the officer ran a records check, he discovered that Cooney's license was suspended. The officer then conducted a horizontal gaze nystagmus test on Cooney and observed six out of six cues that may indicate intoxication. Cooney was arrested and taken to a police substation for a blood draw, which showed a blood alcohol concentration (BAC) of .101.

¶3 As noted above, Cooney was charged with and convicted of four counts of aggravated DUI, specifically: DUI with a suspended license, A.R.S. §§ 28-1381 (A)(1), 28-1383(A)(1), [1] driving with a BAC at or above .08 with a suspended license, §§ 28-1381(A)(2), 28-1383(A)(1), DUI with two prior DUI convictions within eighty-four months, §§ 28-1381 (A)(1), 28-1383(A)(2), and driving with a BAC at or above .08 with two prior DUI convictions within eighty-four months, §§ 28-1381(A)(2), 28-1383(A)(2). Cooney was sentenced to four enhanced, concurrent, presumptive prison terms of ten years. This appeal followed.

Jurisdiction

¶4 The state initially asserts that we lack jurisdiction to hear this matter because the defendant's notice of appeal was untimely. Cooney's notice of appeal was filed on March 6, 2012. Although this was more than twenty days past oral pronouncement of sentence, which occurred on February 13, 2012, it was within twenty days of the filing of the minute entry, which occurred on February 15, 2012. Rule 31.3, Ariz. R. Crim. P., provides that the notice of appeal must be filed "within 20 days after the entry of judgment and sentence." This court has recently held that "the timeliness of a criminal defendant's appeal may be measured from the date when the minute entry containing the judgment and sentence was filed." State v. Whitman, 232 Ariz. 60, ¶ 23, 301 P.3d 226, 232 (App. 2013). We find Cooney's notice of appeal was timely filed, and we therefore have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 13-4033.

Evidence of Previous Incarceration

¶5 Cooney argues that admission over his objection of evidence regarding the time he spent incarcerated violated Rule 403, Ariz. R. Evid., because it was unduly prejudicial. He further asserts that if § 28-1383 compels admission of this evidence, it constitutes an impermissible usurpation of the Arizona Supreme Court's rulemaking authority by the legislature. We find his argument unpersuasive and hold that evidence of the time he spent incarcerated did not violate Rule 403.

¶6 "The admission of evidence is within the trial court's discretion and will not be disturbed absent an abuse of discretion." State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004). In State v. Geschwind, 136 Ariz. 360, 362, 666 P.2d 460, 462 (1983), our supreme court held that, based on Rule 19.1(b), Ariz. R. Crim. P., a defendant was not entitled to a bifurcated trial on the issue of whether he had a prior DUI conviction because the prior conviction was an element of the charged offense that had to be presented to the jury for a determination of guilt. In State ex rel. Romley v. Galati, 195 Ariz. 9, ¶ 16, 985 P.2d 494, 497 (1999), our supreme court confirmed that this holding was not affected by the United States Supreme Court's ruling in Old Chief v. United States, 519 U.S. 172, 174-75 (1997), because in Old Chief, "the element at issue was the existence of any prior felony conviction; . . . [t]o ...


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