good morning before i'm jennifer from the federal public defender's office is that there is ana and our office was appointed by this court to represent david leon stokes in the appeal from the denial of his propre petition by the arizona district court beyond a reasonable doubt followings mr stubbs conviction of dangerous armed robbery excuse me dangerous attempted armed robbery and dangerous attempted kidnapping the trial court on the state's recommendation decided to disregard the jury's finding of dangerous the jury's verdict standing alone that is required is what the sentence must be based on and in this case on the jury's verdict standing alone mr stokes was convicted of dangerous attempted armed robbery and dangerous attempted kidnapping and based on that  did take the option of the repeat offender rather than the specific finding of the jury is there some place some supreme court case and says that where there is a special finding by a jury other facts which the defendant dangerous attempted kidnapping and dangerous armed robbery and based on that the arizona state statute specifically excludes dangerousness dangerous crimes from being sentenced pursuant to the repetitive offender subsection of the statute specifically excluded by the plain language of the did have prior convictions but they were for non dangerous offenses there is a statute does have some sections that provide to that that that handle multiple offenses when they were previously dangerous convictions so this is essentially a gap analogize let me compare this to a capital offense in arizona if i defend it was charged with first degree murder and aggravating circumstance was alleged to the jury and the jury made a finding of first degree that upon the finding of that additional factor that he sentenced to death now if i did if a judge would not be able to do that in the defendant's favor getting a life sentence that a death sentence he shouldn't be allowed to do that to the defendant's detriment by disregarding a jury those factors clearly consisted of blakeley error however the prevailing standard robert hunter right now is that likely is not retroactive so we do say that essentially we believe that there are three layers of error that occurred here there was the blakely error and the judge's aggravating factors there was the sixth amendment apprentice error that occurred in the disregard of the dangerousness finding and there was further alimentarius torres error that occurred in the finding of prior convictions however we are aware that the prevailing standard this time is that the only area that relief is available for would be the sixth amendment would argue that it does i think that the only reason i was talking strange would be because blakely specifically deals with aggravating circumstances similar to to this issue and because the court the analysis under that the courts have found is that blakely is a new here is resolved by asking does the sixth amendment as discussed in a print for close the sentencing court from exercising its discretion to disregard an aggravating factor found in compliance with the constitution in return for utilizing another aggravating factors also found in compliance with the constitution in order to sentence the petitioner to a higher sentencing range and the answer is quite simply no appointee does not speak to this issue and is not concerned with this issue a frien response well the other issue is that it's also the law as a stablished at the time that the conviction was final and here the conviction was final in june of one thousand or of june of two thousand and one i'm sorry so those further extensions of pretty that are more recent still don't apply that even if they did it wouldn't make any difference in this case there is nothing in any of the supreme court precedent that suggests that what the trial court did here was inappropriate because it used the prior convictions which are an explicit exception the nature of those those are discussed now torrez as well as all of the balls the trial court to the extent there could be some question of whether going into the nature of the office is in the future maybe a further extension of the blakely in a pretty line of cases that isn't something that was clearly established supreme court precedent at the time of this conviction let me just see if i understand your argument counsel the judge enhanced the sentence finding three aggravating circumstances is a call an emotional harm t randy says other than the fact of a prior conviction that it other than the fact of a prior conviction not these facts of a prior conviction that's a totally different scenario well that taken in context of other cases that specifically hold that sentencing is a matter of state law rather than a constitutional concern except where there's other facts that extend the range has to be seen as supporting what the trial court did here rather then it has to be clearly established the preen court precedent and while a trendy knee the w he had reinterred or had been deported and reinterred they were facts that weren't found by the jury but they were in imply to me they were parts of the statue in order to be convicted of that particular crime that the emotional part of it would be acceptable under a more recent law under arizona law and under the law even with blakeley in the more recent cases in arizona specifically the state the martinez which dealt with  what you're asking here it was the facts the specifics there were he didn't make any specific findings concerning the facts as far as for example something something new that wasn't in  if we just take that one that long well then that one can be completely disregarded under the arizona sentencing statutes at the time he only needed to aggravators to sentence to the exceptionally aggravated range the two that you would look at would be the two that had to do with the prior convictions if you completely just dropped that third one that could cause a problem and again that's not even at issue here the c l a was not granted on that it was never discussed below whether that was an appropriate finding or not concerning that third aggravating factor but again it's not even necessary and unless there's any other questions thank you  finally expose the defendant to a greater punishment than that authorized by the jury's verdict and absolutely we agree that not only does the pain and suffering to the victim but also the third aggravating factor that the crimes were similar to mr stokes one hundred eighty one convictions both in fact did that especially when you compare the fact that the one hundred eighty one convictions were for different crimes there was a kidnapping conviction and attempted aggravated assault conviction which are not the exact same crimes at issue here and the facts of mr stokes one hundred eighty one convictions were very different from the have always argued in the brief that this was an impending violation and i think will blakeley does speak specifically to matters of the state sentencing aggravating factors in the state sentencing system that finding was certainly compelled by appending an apprentice rule that