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State v. Galo

Court of Appeals of Arizona, First Division, Division One

November 19, 2013

STATE OF ARIZONA, Appellee,
v.
FRANK DEJUAN GALO, Appellant.

Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24

Appeal from the Superior Court in Maricopa County No. CR2012-106024 The Honorable Brian Kaiser, Judge Pro Tem

Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Sally S. Duncan joined.

MEMORANDUM DECISION

JONES, Judge

¶1 Frank Galo appeals from his conviction and sentences[1] for two counts of aggravated assault on a peace officer and one count of misconduct involving weapons. For the reasons discussed below, we affirm as corrected.

FACTS AND PROCEDURAL BACKGROUND

¶2 Galo was indicted on February 3, 2012, on two counts of aggravated assault (Counts 1 and 2) and one count of misconduct involving weapons (Count 3). The State further alleged Galo had seven historical felony convictions.

¶3 On November 14, 2012, a jury found Galo guilty on all charges. During the jury's deliberation, with Galo present, the State informed the trial court that it would not submit allegations of dangerousness to the jury because it wished to have Galo sentenced as a Category 3 Repetitive Offender. The State explained to the trial court that if the jury returned guilty verdicts, Galo would face a sentencing range of 15.75 to 35 years flat time for Counts 1 and 2. Defense counsel stated she was explaining this information to Galo.

¶4 On November 15, 2012, an aggravation hearing was held. Before it began, the trial court addressed a question Galo had regarding the State's decision not to submit allegations of dangerousness to the jury. The trial court explained it was the State's option to allege dangerousness in the first instance, and even if the allegation was initially made, the State was able to later decide not to submit the allegation to the jury. The trial court then explained different sentencing statutes apply under different situations, and a defendant with prior felony convictions faces a steeper sentencing range than a defendant merely convicted of a dangerous offense. The trial court also noted the State wanted the higher sentencing range applied to Galo. Galo echoed the trial court's explanation, stating "[t]hat enhances my sentencing." Galo then stated he disagreed with the decision not to designate his offense as dangerous and wanted that disagreement on the record.

¶5 Following that discussion and prior to his sentencing hearing, Galo wrote a letter to the trial court asking again for an explanation of why his offenses were not being designated as dangerous for sentencing purposes. This letter asserted Galo believed his attorney was allowing the State to drop the allegations of dangerousness in an effort to enhance his sentence.

¶6 The sentencing hearing took place on January 4, 2013. Prior to the State introducing evidence of Galo's prior convictions, defense counsel informed the trial court that Galo would admit to all seven of his prior felony convictions. After defense counsel recited the case number and date of sentencing or date of conviction for each prior offense, the trial court conducted a colloquy. The trial court asked Galo if he intended to admit each prior conviction, to which he replied, "Yes. Yes, I do." The trial court then inquired if Galo understood that he is not required to do so and that he has the right to require the State to prove each prior conviction. Galo responded in the affirmative.

¶7 Following this exchange, the trial court again asked Galo if he was waiving his right to have the State prove his prior convictions. At this time, Galo once more expressed confusion concerning the State's decision not to submit allegations of dangerousness to the jury. He also questioned the effect admitting his prior convictions would have on his ability to have his offenses designated as dangerous. After defense counsel stated she had already explained the dangerousness issue to Galo and the trial court again explained the issue, the trial court asked Galo if he understood he had the right to require the State to prove the prior convictions and if he was going to ...


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