State of Arizona v. Jesus Antonio Aleman

FILED BY CLERK
APR -4 2005
IN THE COURT OF APPEALS
COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO

THE STATE OF ARIZONA, ) 2 CA-CR 2003-0075
) DEPARTMENT B
Appellee, )
) OPINION
v. )
)
JESUS ANTONIO ALEMAN, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. 2000026839

Honorable Gilberto V. Figueroa, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General
By Randall M. Howe and Diane M. Acosta Tucson
Attorneys for Appellee

Harriette P. Levitt Tucson
Attorney for Appellant

P E L A N D E R, Chief Judge.

¶1 After a jury trial, appellant Jesus Aleman was convicted of two counts of

second-degree murder, four counts of aggravated assault, and three counts of aggravated

driving while under the influence of an intoxicant (DUI). The trial court sentenced him to
a combination of concurrent and consecutive prison terms totaling eighteen years on the

murder and aggravated assault convictions, and a consecutive, ten-year term of supervised

probation, a condition of which was a four-month prison term, on the aggravated DUI

convictions. Aleman received mitigated, ten-year, concurrent sentences on the murder

convictions but slightly aggravated, eight-year sentences on the aggravated assault

convictions.

¶2 In the sole issue raised on appeal, Aleman contends the trial court erroneously

denied his pretrial motion to suppress evidence of blood test results, arguing A.R.S. § 28-

673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was

illegal. We do not address that issue because we conclude the trial court did not err in

alternatively finding the blood draw authorized under A.R.S. § 28-1388(E). We also reject

Aleman’s challenge to his aggravated sentences, raised in supplemental briefing and based

on Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Accordingly, we affirm.

BACKGROUND

¶3 “In reviewing the denial of a motion to suppress evidence, we view the facts

in the light most favorable to upholding the trial court’s ruling . . . [and consider] only the

evidence presented at the suppression hearing.” State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d

392, 394 (App. 2000); see also State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069

(1996). On April 29, 2000, a car driven by Aleman crossed the centerline of a two-lane

highway and collided head-on with an approaching minivan. Aleman was seriously injured

and two passengers in his car were killed in the collision. The four family-member

2
occupants of the minivan, two of whom were minors, were seriously injured. Law

enforcement officers who responded to the accident scene found Aleman in and out of

consciousness and trapped behind his car’s steering wheel. Fire department personnel had

to cut Aleman out of the car. The two passengers in Aleman’s car were pronounced dead at

the scene.

¶4 One officer testified that he had seen open alcoholic beverage containers in the

car and on the roadway and that fire department personnel had told him they had detected the

odor of an intoxicating beverage on Aleman’s breath and person. Another officer testified

he had seen beer cans in Aleman’s car and had smelled a “distinct strong odor” of alcohol

coming from Aleman. He also testified that from just outside the car by the driver’s door,

he had noticed the odor of alcohol became stronger when Aleman attempted to speak to the

passenger in the front seat. A supervising officer at the scene also detected an odor of

alcohol from Aleman’s car and was told by another officer that Aleman was “under the

influence of alcohol.”

¶5 Aleman was transported to a hospital, where he became “extremely

uncooperative.” A hospital phlebotomist testified that Aleman had attempted to get off of

the examination table, and it had taken about eight people to hold him down. The

phlebotomist considered this a severe trauma case and testified that blood draws are

“mandatory” for every trauma patient seen at the hospital. The hospital’s trauma pack

contained between five to seven blood vials. Regardless of the total number of vials, every

pack contained two gray-topped vials that were specifically and routinely drawn for law

enforcement purposes in every trauma case. The phlebotomist testified that she had drawn

3
a “full trauma pack” on Aleman and that the two gray-topped vials were set aside in a locked

area for law enforcement purposes.

¶6 Within a few hours, Officer Encisco of the Pinal County Sheriff’s Department

retrieved the two gray-topped blood vials from the hospital, took them to the sheriff’s office,

and stored them for evidence. The supervising officer testified that he had instructed Encisco

to retrieve Aleman’s blood sample from the hospital after another officer had informed the

supervisor that emergency personnel had smelled an odor of alcohol on Aleman.

¶7 Before trial, Aleman moved to suppress evidence of the blood test results,1

arguing the blood samples had been obtained without a warrant, in violation of his Fourth

Amendment rights. Following the suppression hearing, the trial court denied Aleman’s

motion, finding that law enforcement had properly obtained his blood sample pursuant to

§ 28-673(C) and, alternatively, § 28-1388(E). This appeal followed Aleman’s ensuing

convictions and sentencing.

DISCUSSION

I. Motion to suppress

¶8 “We review the trial court’s ruling on a motion to suppress for clear and

manifest error.” State v. Clary, 196 Ariz. 610, ¶ 8, 2 P.3d 1255, 1256-57 (App. 2000); see

also State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App. 1989). In his opening

brief, Aleman only challenges the trial court’s reliance on § 28-673(C) as a basis for denying

1
Evidence at trial established that, based on subsequent testing of the two gray-topped
vials of Aleman’s blood, criminalists at the Arizona Department of Public Safety determined
that his blood-alcohol concentration was .221 and that his blood sample contained
benzoylecgonine, a major metabolite of cocaine.

4
the motion to suppress.2 Relying on several out-of-state cases,3 he argues that the statute is

unconstitutional because it does not require “probable cause to believe that a crime has been

committed before conducting a [warrantless] search which involves the taking of blood from

a person.” The state does not respond to Aleman’s constitutional argument at all, but rather

urges us to uphold the trial court’s ruling under § 28-1388(E), which the court cited as an

alternative basis for denial of the motion to suppress.

¶9 In his reply brief, however, Aleman argues that § 28-1388(E) “does not apply

in this case because no officer claimed to have had probable cause to arrest [Aleman] at the

time Officer Encisco was requested to retrieve the blood from the hospital.” Generally, an

appellant may not raise issues for the first time in the reply brief. See State v. Watson, 198

Ariz. 48, ¶ 4, 6 P.3d 752, 755 (App. 2000); State v. Cohen, 191 Ariz. 471, ¶ 13, 957 P.2d

1014, 1017 (App. 1998). And, if the appellant does so, “[a]n appellate court can ‘disregard

[the new] substantive issues raised.’” Id., quoting State v. Cannon, 148 Ariz. 72, 79, 713

P.2d 273, 280 (1985).

2
In pertinent part, A.R.S. § 28-673(C) states:

After a determination is made that a person was involved
in a traffic accident resulting in death or serious physical injury
as defined in § 13-105 and the officer has probable cause to
believe that the person caused the accident . . . , the person may
be requested to submit to and successfully complete any test or
tests prescribed by subsection (A) of this section . . . .

See Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000), rev’d, 90 P.3d 156 (Alaska
3

2004); Cooper v. State, 587 S.E.2d 605 (Ga. 2003); King v. Ryan, 607 N.E.2d 154 (Ill. 1992);
McDuff v. State, 763 So. 2d 850 (Miss. 2000); Commonwealth v. Kohl, 615 A.2d 308 (Pa.
1992); cf. State v. Roche, 681 A.2d 472 (Me. 1996).

5
¶10 Although Aleman did not challenge or otherwise address § 28-1388(E) in his

opening brief, in our discretion we address the issue of whether the trial court’s ruling is

supportable under that statute. See State v. Myers, 117 Ariz. 79, 87, 570 P.2d 1252, 1260

(1977); Ariz. R. Crim. P. 31.13(c)(3), 17 A.R.S. (reply brief may respond “to questions of

law or fact raised by the appellee’s brief”); cf. State v. Shipman & Sweeney, 208 Ariz. 474,

n.2, 94 P.3d 1169, 1171 n.2 (App. 2004) (appellate court may consider merits of dispositive

issue even if not raised in opening brief). And, we address that issue first because courts

should decide cases on nonconstitutional grounds if possible and should determine a statute’s

constitutionality only if absolutely necessary. See Aitken v. Indus. Comm’n, 183 Ariz. 387,

389, 904 P.2d 456, 458 (1995); State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984).

¶11 Under Arizona law, absent express consent, police may obtain a DUI suspect’s

blood sample only pursuant to a valid search warrant, Arizona’s implied consent law,

A.R.S. § 28-1321, or the medical blood draw exception in § 28-1388(E). See State v. Cocio,

147 Ariz. 277, 283-84, 709 P.2d 1336, 1344-45 (1985); see also State v. Estrada, 209 Ariz.

287, ¶ 11, 100 P.3d 452, 455 (App. 2004). The state did not obtain a search warrant here and

now relies solely on § 28-1388(E), which provides:

Notwithstanding any other law, if a law enforcement
officer has probable cause to believe that a person has violated
[A.R.S.] § 28-1381 and a sample of blood, urine or other bodily
substance is taken from that person for any reason, a portion of
that sample sufficient for analysis shall be provided to a law
enforcement officer if requested for law enforcement purposes.4

4
A.R.S. § 28-1381 is the statute that prohibits and criminalizes driving under the
influence of intoxicating substances.

6
¶12 In Cocio, our supreme court addressed the constitutionality and application of

the predecessor statute, former A.R.S. § 28-692(M). The court held that, under the statute,

removal of blood without a warrant from a person suspected of DUI is constitutionally

permissible if there is “probable cause . . . to believe the person has [been driving under the

influence of an intoxicant], . . . exigent circumstances are present and, . . . the blood is drawn

for medical purposes by medical personnel.” 147 Ariz. at 286, 709 P.2d at 1345; see also

Clary, 196 Ariz. 610, ¶¶ 10-11, 2 P.3d at 1257; Lind v. Superior Court, 191 Ariz. 233, ¶ 17,

954 P.2d 1058, 1062 (App. 1998) (holding that hospital blood sample falls within permissible

scope of medical-purpose statute when blood is drawn before showing of probable cause or

arrest, amount of blood drawn is more than that needed for medical purposes at the time, and

extra blood is set aside for possible law-enforcement use). The court in Cocio also ruled that

the statutory language “‘taken from that person for any reason’” means that “the blood must

be drawn by medical personnel for any medical reason so as not to conflict with the orderly

administration of care to those injured.” 147 Ariz. at 286, 709 P.2d at 1345, quoting former

§ 28-692(M).

¶13 The record reflects, and Aleman does not dispute, that his blood samples were

drawn by medical personnel (a hospital phlebotomist) for medical purposes. See Cocio, 147

Ariz. at 286, 709 P.2d at 1345; Lind, 191 Ariz. 233, ¶ 17, 954 P.2d at 1062 (holding that “the

hospital draws the entire sample ‘for medical purposes’ within the meaning of the statute,

and the officer’s subsequent statutory request for a portion of the sample does not violate any

rights of a defendant”); Howard, 163 Ariz. at 50, 785 P.2d at 1238 (“officer’s indication that

he wanted a blood sample prior to the [hospital] technician’s drawing the blood does not alter

7
the fact of its being taken for medical purposes”); cf. Estrada. The record also reflects that

the hospital furnished the two gray-topped blood vials to Officer Encisco pursuant to his

request for a sample for law enforcement purposes, as § 28-1388(E) obligated the hospital

to do. See Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062. Aleman does not contend otherwise.

¶14 In conjunction with his challenge to § 28-673(C), however, Aleman argues

“exigent circumstances clearly did not exist because police had waited well over two hours

before requesting blood from the hospital,” during which time they could have obtained a

search warrant. Even had Aleman presented this argument in connection with § 28-1388(E),

the pertinent Arizona cases clearly refute it. See Cocio, 147 Ariz. at 286, 709 P.2d at 1345

(noting that “[t]he highly evanescent nature of alcohol in the defendant’s blood stream

guaranteed that the alcohol would dissipate over a relatively short period of time” and

finding, “because of the destructability of the evidence, exigent circumstances existed”);

Lind, 191 Ariz. 233, ¶ 20, 954 P.2d at 1062 (based on Cocio, declining to address whether

“a blood sample presents an exigent circumstance” even when police requested portion of

blood sample previously drawn by hospital for medical purposes); Howard, 163 Ariz. at 50,

785 P.2d at 1238.

¶15 The only significant issue, therefore, is whether the officers had probable cause

to believe that Aleman had violated the DUI statute at the time they requested and obtained

the blood samples from the hospital. “Probable cause is something less than the proof

needed to convict and something more than suspicions.” Howard, 163 Ariz. at 50, 785 P.2d

at 1238; cf. Smith v. Ariz. Dep’t of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App.

1985) (probable cause does not require law enforcement “to show that the operator was in

8
fact under the influence”; “[o]nly the probability and not a prima facie showing of

intoxication is the standard for probable cause”). In addition, probable cause exists if the

collective knowledge of the officers establishes that they had “reasonably trustworthy

information of facts and circumstances which are sufficient in themselves to lead a

reasonable [person] to believe an offense . . . has been committed and that the person to be

arrested . . . did commit it.” State v. Richards, 110 Ariz. 290, 291, 518 P.2d 113, 114 (1974);

see also State v. Keener, 206 Ariz. 29, ¶ 14, 75 P.3d 119, 122 (App. 2003) (“[O]ur courts

have long recognized that collective knowledge of law enforcement officers may be

considered to establish probable cause.”). We apply the law to the facts de novo in

determining whether probable cause existed. See Ornelas v. United States, 517 U.S. 690,

699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996); State ex rel. McDougall v.

Superior Court, 191 Ariz. 182, 186, 953 P.2d 926, 930 (App. 1997).

¶16 In addition to observing open beer containers in and around Aleman’s car,

emergency personnel who attended to him at the scene told police they had detected the odor

of intoxicants on his breath. Moreover, the “distinct strong odor” of alcohol emanating from

Aleman’s position in the driver’s seat became even stronger when he attempted to speak to

the deceased front-seat passenger. The accident occurred in broad daylight when Aleman

crossed the centerline and collided head-on with the oncoming van. The record reflects no

circumstances other than Aleman’s impairment to explain the collision.

¶17 Officer Encisco’s testimony that he personally had not had “any evidence that

Mr. Aleman had committed a crime” at the time Encisco retrieved the blood samples from

the hospital is of no moment. Cf. McDougall, 191 Ariz. at 186, 953 P.2d at 930 (officer

9
might have “probable cause to arrest even though he thought he did not”). As noted above,

the collective knowledge of all of the officers may establish probable cause and in fact did

so here.

¶18 In sum, the trial court did not clearly and manifestly err in implicitly finding

the officers had had probable cause to believe Aleman had been driving while under the

influence of an intoxicant, as required by § 28-1388(E), and consequently denying Aleman’s

motion to suppress based on that statute.5 See, e.g., State v. Kemp, 168 Ariz. 334, 813 P.2d

315 (1991) (trial court properly admitted defendant’s blood test results after he had driven

his car into path of oncoming vehicle, caused death of other driver, smelled of alcohol at the

scene and during questioning at hospital, even though defendant was not under arrest at that

time); State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983) (officer had probable cause to

make DUI arrest after officer found defendant unconscious in vehicle parked off roadway

and noted strong odor of alcoholic beverage on him and in vehicle); Howard, 163 Ariz. at

49-50, 785 P.2d at 1237-38 (sufficient evidence supported probable cause finding when

defendant’s car rear-ended other vehicle, and paramedic at scene “detected an odor of alcohol

that could have been produced by [defendant’s] consumption of alcohol or something else

5
Aleman’s reliance on State v. Flannigan, 194 Ariz. 150, 978 P.2d 127 (App. 1998),
is unavailing. There, unlike in this case, the defendant “did not sustain any injuries in the
accident that required medical personnel to draw his blood” and, therefore, that case “[did]
not involve the medical purposes exception of [former] A.R.S. section 28-692(J) [now § 28-
1388(E)], which would have entitled the police to receive a sample of his blood regardless
of his consent.” Id. ¶ 14. See also State v. Brita, 154 Ariz. 517, 521, 744 P.2d 429, 433
(App. 1987), approved in part and vacated in part, 158 Ariz. 121, 761 P.2d 1025 (1988)
(“defendant’s blood was not part of a sample taken for medical reasons in accordance with
[former] A.R.S. § 28-692(M)).

10
associated with [his] injuries,” despite defendant’s contention that “none of the officers

determined independently that there was alcohol on [his] breath”).

II. Blakely issues

¶19 After this appeal came at issue, the United States Supreme Court decided

Blakely. Thereafter, pursuant to Aleman’s motion and this court’s order, the parties filed

supplemental briefs addressing whether and how Blakely affects this case. We now address

those issues.

¶20 As noted earlier, the trial court imposed slightly aggravated, eight-year

sentences on the four aggravated assault convictions. Those convictions related to the four

occupants, two of whom were minors, of the oncoming minivan with which Aleman’s

vehicle collided. In imposing those sentences, the trial court found the following aggravating

circumstances: that Aleman previously had been convicted of at least one DUI and had

another DUI charge pending; that two of the victims were minors; that multiple victims were

involved; that Aleman’s driver’s license had been suspended or revoked at the time of the

accident; and that Aleman had recognized that he was too drunk to drive. In mitigation, the

trial court found that Aleman had minor children to support, that he had no known prior

felony convictions, and that he appeared to be remorseful. After considering those

aggravating and mitigating circumstances, the trial court determined that a slightly

aggravated sentence was appropriate on each of the four aggravated assault convictions.

¶21 In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147

L. Ed. 2d 435, 455 (2000), the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

11
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely,

the Court extended that ruling and held that “the ‘statutory maximum’ for Apprendi purposes

is the maximum sentence a judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” ___ U.S. at ___, 124 S. Ct. at 2537. The Court

explained:

In other words, the relevant “statutory maximum” is not the
maximum sentence a judge may impose after finding additional
facts, but the maximum he may impose without any additional
findings. When a judge inflicts punishment that the jury’s
verdict alone does not allow, the jury has not found all the facts
“which the law makes essential to the punishment,” and the
judge exceeds his proper authority.

Id. (citation omitted), quoting 1 J. Bishop, Criminal Procedure § 87 at 55 (2d ed. 1872); see

also United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).

¶22 As Aleman correctly points out, new appellate opinions announcing a change

in the law generally apply to any cases that are pending at the time the opinion is filed. See

Schriro v. Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2522, 159 L. Ed. 2d 442 (2004);

Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987).

Thus, Blakely applies to this case. See State v. Henderson, 209 Ariz. 300, ¶ 9, 100 P.3d 911,

914 (App. 2004); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d 35, 41 (App. 2004).

The state does not argue otherwise.6

6
Nor does the state contend Blakely does not apply to Arizona’s treatment of
aggravating sentencing factors under A.R.S. § 13-702 in noncapital cases. Indeed, it is now
clear that Blakely’s analysis and conclusion apply with equal force to Arizona’s sentencing
structure under § 13-702(B) and (C). See State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15,
18 (2004); Henderson, 209 Ariz. 300, ¶ 6, 100 P.3d at 913-14 (in Arizona, the presumptive

12
¶23 Relying on Apprendi and Blakely, Aleman contends the trial court exceeded

its authority by imposing aggravated sentences based on facts not found by the jury or

admitted by him. Those aggravated sentences, Aleman argues, exceeded the “statutory

maximum” as defined in Blakely and violated his Sixth Amendment right to a trial by jury

on the aggravating circumstances. Aleman further argues that, because no aggravating

factors were charged in the indictment and because the trial court supposedly has no legal

authority to empanel a new jury to determine any such factors,7 he “is entitled to be

resentenced to no more than the presumptive term of imprisonment” on the aggravated

assault convictions.

term provided in A.R.S. § 13-701 is the “‘statutory maximum’” for purposes of Blakely),
quoting Blakely, ___ U.S. at ___, 124 S. Ct. at 2537; State v. Resendis-Felix, 209 Ariz. 292,
n.1, 100 P.3d 457, 459 n.1 (App. 2004).
7
We reject this argument and note that our supreme court has concluded that even in
capital cases, the indictment need not specify aggravating factors in support of the death
penalty. McKaney v. Foreman, 209 Ariz. 268, ¶ 23, 100 P.3d 18, 23 (2004); see also State
ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 10, 98 P.3d 881, 884 (App. 2004), quoting State v.
Nichols, 201 Ariz. 234, ¶ 15, 33 P.3d 1172, 1176 (App. 2001) (“aggravators that are now the
functional equivalent of elements ‘need not be alleged in the charging document provided
that the notice . . . given the defendant comports with Arizona’s traditional notice
requirements for alleging sentence enhancements’”). In addition, the court in Conn
concluded that, even though “A.R.S. § 13-702(B) requires a trial judge to find aggravating
factors,” that “does not mean that, post-Blakely, juries cannot do so without a legislative
change to the statute.” Id. ¶ 6; see also Aragon v. Wilkinson, 209 Ariz. 61, ¶ 15, 97 P.3d 886,
891 (App. 2004) (“the court may utilize its inherent authority to convene a jury trial on the
existence of facts that may support imposition of an aggravated sentence”).

13
¶24 Preliminarily, relying on both Arizona8 and federal cases,9 the state contends

Aleman waived any Sixth Amendment challenge to his aggravated sentences under Blakely

because the foundation for his claim existed well before Blakely was decided, but he failed

to present the argument at sentencing or in his opening brief. The authorities the state cites

clearly support its waiver argument. But waiver is a procedural concept that courts do not

rigidly employ in mechanical fashion. See State v. Smith, 203 Ariz. 75, ¶ 12, 50 P.3d 825,

829 (2002) (reviewing court may choose to address argument otherwise waived). And this

court has stated that Blakely error, “unless harmless, constitutes fundamental error” which

is not waived despite a party’s failure to timely raise it. State v. Resendis-Felix, 209 Ariz.

292, ¶ 6, 100 P.3d 457, 459 (App. 2004); see also State v. Munninger, 209 Ariz. 473, ¶¶ 7-

12, 104 P.3d 204, 208-09 (App. 2005) (no waiver of Blakely issue despite not having been

raised below); Henderson, 209 Ariz. 300, ¶ 9, 100 P.3d at 914 (addressing alleged Blakely

error even though “[n]either party requested that a jury determine the aggravators beyond a

8
See State v. Sepahi, 206 Ariz. 321, n.3, 78 P.3d 732, 735 n.3 (2003) (Apprendi “issue
was not raised either in the superior court or the court of appeals, and therefore was not
preserved for our review”); State v. Holder, 155 Ariz. 83, 86, 745 P.2d 141, 144 (1987)
(Even though Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), had
not yet been decided at time of defendant’s trial and constituted “a significant change in the
law,” it was not “so novel an idea as to excuse the defendant’s failure to make a timely
objection.”); State v. Tison, 129 Ariz. 526, 535-36, 633 P.2d 335, 344-45 (1981) (defendant’s
Fifth and Sixth Amendment claims not raised “in the trial court are waived on appeal”).
9
See United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002); United States v.
Palmer, 297 F.3d 760, 767 (8th Cir. 2002); Rodriguez v. United States, 286 F.3d 972, 978
(7th Cir. 2002); United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002); United States
v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001); United States v. Levy, 379 F.3d
1241, 1242 (11th Cir. 2004); United States ex rel. Perez v. Warden, FMC Rochester, 286
F.3d 1059, 1063 (8th Cir. 2002); see also State v. Leja, 684 N.W.2d 442, 447 n.2 (Minn.
2004).

14
reasonable doubt”); cf. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d at 41 (addressing

Blakely issue on the merits even though defendant “fail[ed] to raise it at the sentencing

hearing or in his opening brief”). Accordingly, in our discretion we address the supplemental

Blakely issues the parties have raised. See Resendis-Felix, 209 Ariz. 292, ¶ 6, 100 P.3d at

459.

¶25 Aside from its waiver argument, the state also contends Aleman’s slightly

aggravated sentences did not violate the Sixth Amendment because he “admitted at

sentencing the fact that he had a prior DUI conviction—a conviction that fell within the

exception announced in Apprendi.” As noted above, the Supreme Court in Apprendi

excepted prior convictions from the general principle that facts that increase the penalty for

a crime must be presented to a jury and proved beyond a reasonable doubt. 530 U.S. at 490,

120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455; see State v. Ring, 204 Ariz. 534, ¶¶ 64-66, 65

P.3d 915, 939 (2003) (Ring III). And, as the state correctly points out, “Blakely did not alter

Apprendi’s exception of the fact of a prior conviction from the dictates of the Sixth

Amendment trial-by-jury requirement.” See Blakely, ___ U.S. at ___, 124 S. Ct. at 2536

(applying, but not altering, “the rule we expressed in Apprendi,” which expressly excluded

“‘the fact of a prior conviction’”), quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63,

147 L. Ed. 2d at 455; State v. Cons, 208 Ariz. 409, ¶ 15, n.3, 94 P.3d 609, 614-15, 613 n.3

(App. 2004).10

10
See also United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004);
United States v. Marseille, 377 F.3d 1249, 1258 n.14 (11th Cir. 2004) (although district court
had enhanced defendant’s sentence with prior convictions, “Blakely does not take such fact-
finding out of the hands of the courts”); United States v. Cooper, 375 F.3d 1041, 1053 n.3
(10th Cir. 2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000)

15
¶26 Moreover, Apprendi’s exception of the “fact” of a prior conviction is not

limited solely to a prior felony conviction. Rather, the exception encompasses any conviction

entered in a Sixth Amendment-compliant manner. See Goldsberry v. State, 821 N.E.2d 447,

461 (Ind. Ct. App. 2005) (under Blakely, trial court may rely on prior misdemeanor

convictions as an aggravator without a finding by jury); State v. Kendall, 58 P.3d 660, 667

(Kan. 2002) (prior misdemeanor DUI convictions used to enhance instant DUI conviction);

State v. Van Buren, 98 P.3d 1235, 1240 (Wash. Ct. App. 2004) (Blakely does not preclude

trial court from considering as aggravator defendant’s criminal history, including

misdemeanor convictions); see also United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.

2002) (juvenile adjudications can properly be characterized as prior convictions for Apprendi

purposes). Aleman does not argue otherwise, nor does he dispute that at the time of his prior

conviction, a person charged with misdemeanor DUI in Arizona had the right to a jury trial,

and the burden of proof was beyond a reasonable doubt. See Rothweiler v. Superior Court,

100 Ariz. 37, 47, 410 P.2d 479, 486 (1966); A.R.S. § 28-1381(F) (at arraignment, court shall

inform DUI defendant that he or she “may request a trial by jury and that the request, if

(“Apprendi held that all prior convictions—not just those admitted on the record—were
exempt from Apprendi’s general rule and . . . may continue to be treated as sentencing
factors.”); Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004) (“[T]he multiple
convictions that the extensive criminal history comprises have already been proven beyond
a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely.”);
State v. Abdullah, 858 A.2d 19, 38 (N.J. Super. Ct. App. Div. 2004) (trial court’s finding of
three aggravating factors “used to justify the maximum second-degree ten-year term did not
offend Blakely, as they were derived from defendant’s prior criminal record and, therefore,
expressly excepted”).

16
made, shall be granted”); but cf. Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005)

(overruling Rothweiler and holding that drag racing is not a jury-eligible offense).

¶27 As noted earlier, Aleman admitted at sentencing the fact that he had a prior

DUI conviction.11 The state argues, “[b]ased on the fact of the Apprendi-exempt prior

conviction, [Aleman] became constitutionally eligible to receive a prison term of up to 15

years.” See § 13-604(I).12 According to the state, “under the Sixth Amendment and the

Apprendi/Blakely rule, the fact of Aleman’s prior conviction, standing alone, was sufficient

to support the imposition of a sentence greater than the presumptive.”

¶28 Some decisions by Division One of this court support the state’s “one-is-

enough” argument. See State v. Estrada, 446 Ariz. Adv. Rep. 30, ¶ 1 (Ct. App. March 4,

2005) (“defendant whose prior convictions constitute an aggravating circumstance” is not

constitutionally entitled “to jury findings on the existence of any additional aggravating

factors”); State v. Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d 30, 31-32 (App. 2004) (holding that

“a judge’s imposition of an aggravated sentence that falls within the range authorized by a

jury’s verdict comports with Blakely; a jury need not find every aggravator upon which a

sentencing judge relies”); State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 12, 98 P.3d 881, 884

11
In its discretion, the trial court could consider that prior misdemeanor conviction
under the “catch-all” provision in A.R.S. § 13-702(C)(21), even though it did not qualify as
an aggravating circumstance under § 13-702(C)(11).
12
Aleman was subject to the enhanced penalties of A.R.S. § 13-604 because the jury
expressly found that each class three, aggravated assault offense constituted a dangerous-
nature felony. Under § 13-604(I), the presumptive term was 7.5 years’ imprisonment, and
the maximum term was fifteen years. The trial court imposed slightly aggravated eight-year
terms, to be served concurrently, even though the court could have imposed consecutive
sentences on each of the aggravated assault convictions. See, e.g., State v. Henley, 141 Ariz.
465, 687 P.2d 1220 (1984); State v. White, 160 Ariz. 377, 773 P.2d 482 (App. 1989).

17
(App. 2004) (if jury finds “any alleged aggravating factor” was proven, trial court may

consider “[o]ther factors in aggravation or mitigation” and impose a sentence anywhere

“within the statutory range for aggravated sentences”); cf. Miranda-Cabrera, 209 Ariz. 220,

¶ 34, 99 P.3d at 43 (“[W]hether the sentencing scheme is determinate or indeterminate, once

the jury has found the facts necessary to impose a sentence within a statutory range, a judge

may consider any additional sentencing factors in imposing a lesser sentence than the statute

authorizes.”).

¶29 This court, however, has rejected the state’s broad argument that, even when

a trial court finds both aggravating and mitigating factors, a single Blakely-compliant or

-exempt aggravating factor authorizes the court to “find additional aggravating factors under

the relaxed, pre-Blakely rules found in § 13-702.” State v. Timmons, 209 Ariz. 403, ¶ 11, 103

P.3d 315, 319 (App. 2005); but see State v. Chiappetta, ___ Ariz. ___, 107 P.3d 366 (App.

2005) (Espinosa, J.). Accordingly, this court declined to follow the contrary view espoused

in Martinez and Conn. Timmons, 209 Ariz. 403, ¶¶ 6-7, 103 P.3d at 318. Similarly, other

panels of Division One also have rejected Martinez’s “one-is-enough approach,” refusing to

“automatically uphold sentences based on the presence of a single aggravating factor when

the sentencing judge relied on others not properly found by a jury.” Munninger, 209 Ariz.

473, ¶¶ 27, 30, 104 P.3d at 213, 214; see also State v. Pitre, 446 Ariz. Adv. Rep. 10, ¶ 13 (Ct.

App. March 4, 2005) (rejecting state’s contention that “a sole valid factor under Blakely

opens the door and allows a court without a jury to consider any other factors that do not fit

within Blakely’s confines”). Thus, when a trial court finds mitigating factors and multiple

aggravating factors, only some of which are Blakely-compliant or -exempt, “Arizona law

18
does not authorize an aggravated sentence upon the mere finding of one aggravating

circumstance but, rather, authorizes an aggravated sentence only if all of the aggravating

circumstances taken together outweigh the mitigating factors found by the court.” State v.

Alire, 209 Ariz. 517, ¶ 12, 105 P.3d 163, 165-66 (App. 2005).13

¶30 Again, Aleman’s prior DUI conviction was Blakely-exempt and, therefore,

properly considered in aggravation. Likewise, the trial court properly considered two other

factors that were Blakely-compliant because they were “inherent in the jury’s verdicts.” State

v. Oaks, 209 Ariz. 432, ¶ 23, 104 P.3d 163, 168 (App. 2004). The trial court cited the

involvement of multiple victims as an aggravating factor. By finding Aleman guilty on the

four charges of aggravated assault, the jury implicitly found there had been multiple victims.

And, in its guilty verdicts on the DUI charges, the jury specifically found that at the time of

the offenses, Aleman’s license was “suspended, canceled, refused or revoked.”14 Our inquiry

13
In Alire, this court held that when a trial court finds at least one Blakely-compliant
or -exempt aggravating factor and finds no mitigating factors, the court, without violating
Blakely, may consider additional aggravating factors for which reasonable evidence exists
and may impose a sentence anywhere within the aggravated range based on the totality of
aggravating factors. Alire, 209 Ariz. 517, ¶ 13, 105 P.3d at 166; see also State v. Viramontes,
204 Ariz. 360, ¶ 14, 64 P.3d 188, 190 (2003) (“In non-capital cases, aggravators need only
be supported by reasonable evidence.”). Contra, State v. Pitre, 446 Ariz. Adv. Rep. 10,
¶¶ 22-23 (Ct. App. March 4, 2005) (disagreeing with Alire and imposing Blakely’s
requirements on all aggravating factors, regardless of absence of any mitigating factors).
Here, however, the trial court expressly found three mitigating factors and weighed them
against the aggravating factors. Therefore, Alire’s holding does not apply.
14
At trial, Aleman stipulated that he had known his driver’s license was suspended at
the time of the accident, and the trial court instructed the jury that it could consider the
stipulated fact as evidence. Apparently referring to that stipulation, Aleman incorrectly
maintains that the trial court aggravated his sentence in part based on his admission that “he
knew his license was suspended.” In fact, however, the trial court merely cited as an
aggravating factor that his “privilege to drive was suspended . . . at the time [he was]
driving.” And, the jury expressly found that fact in its verdicts on the DUI charges, contrary

19
does not end there, however, because the trial court found other aggravating factors and

weighed them against the mitigating factors it also found. See Munninger, 209 Ariz. 473,

¶ 25, 104 P.3d at 213; Timmons, 209 Ariz. 403, ¶ 11, 103 P.3d at 318-19. Nonetheless, we

conclude the trial court’s consideration of the other aggravating factors either did not violate

Blakely or was harmless.

¶31 No Sixth Amendment violation occurs if a trial court aggravates a sentence

based on a fact “admitted by the defendant.” Blakely, ___ U.S. at ___, 124 S. Ct. at 2537;

see also Ring III, 204 Ariz. 534, ¶ 93, 65 P.3d at 944 (“In cases in which a defendant

stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance,

we will regard that factor as established.”). Based on undisputed evidence at trial, Aleman

conceded at sentencing that “he knew he was impaired and shouldn’t have been driving” at

the time of the accident. Thus, the trial court’s reliance on that acknowledged, uncontested

fact arguably did not violate Blakely.15

to Aleman’s argument that “none of the aggravating factors . . . were found proven beyond
a reasonable doubt by the jury.”
15
In her partial dissent, Judge Flórez opines that, in order to be Blakely-compliant or
-exempt, a defendant’s “admission” to a fact used for sentence-aggravation purposes must
meet all the constitutional waiver requirements of a knowing, intelligent, and voluntary guilty
plea. But our supreme court has implied that Blakely itself is not clear on that point. See
Brown, 209 Ariz. 200, n.4, 99 P.3d at 18 n.4; see also United States v. Thomas, 389 F.3d 424,
426 (3d Cir. 2004) (outlining several possible interpretations of the language in Blakely
relating to “admissions” by a defendant). Blakely excepted from its scope sentences imposed
based on “facts . . . admitted by the defendant” or to which the defendant “stipulates” without
expounding on that exception or expressly limiting its context. Blakely, ___ U.S. at ___, 124
S. Ct. at 2537, 2541. See Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind. Ct. App. 2004)
(defendant’s statements at sentencing were facts admitted by him and “are exempt from the
Apprendi/Blakely rule”). In any event, we need not resolve the issue of what does or does
not qualify as a valid “admission” for Blakely purposes because here any reasonable jury
would find beyond a reasonable doubt those facts to which Aleman stipulated or admitted.

20
¶32 Moreover, any alleged Blakely error relating to that factor or the other

aggravating factors was harmless. Arizona courts and all federal circuit courts have

concluded that Apprendi or Blakely error is subject to harmless error analysis. See State v.

Sepahi, 206 Ariz. 321, n.3, 78 P.3d 732, 735 n.3 (2003) (“any Apprendi error would be

harmless”); Henderson, 209 Ariz. 300, ¶¶ 22, 33, 100 P.3d at 917, 921-22 (noting that “every

federal circuit court has . . . been uniform in holding that Apprendi error can be reviewed for

harmless error” and that “other courts, since Blakely, have also applied a harmless error

analysis to Blakely violations”); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10, 100 P.3d at 460;

Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d at 31-32 (holding that “Blakely error is subject to

harmless error or fundamental error analysis and may or may not require reversal based on

the facts of a particular case”); Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d at 42 (even

assuming defendant’s trial testimony did not qualify as admissions for sentencing purposes,

trial court’s enhancement of sentencing range without “separate and specific [jury] finding”

that defendant had directed his conduct at a child was harmless error).

¶33 The evidence indisputably showed that two of the victims were minors, and

their young ages were specifically referred to at sentencing without contradiction. Thus, “no

reasonable jury could have concluded differently than the trial judge concluded.”

Henderson, 209 Ariz. 300, ¶ 41, 100 P.3d at 923. And both the prosecutor and the trial court

Therefore, any alleged Blakely error is harmless. See State v. Ring, 204 Ariz. 534, ¶ 86, 65
P.3d 915, 942 (2003) (Ring III) (“Other circumstances that may involve harmless error
include, for example, those instances in which the defendant stipulated to [the fact at issue]
or in which overwhelming evidence establishes [that fact].”); see also State v. Munninger,
209 Ariz. 473, ¶ 13, 104 P.3d 204, 210 (App. 2005) (“No reversible error occurs when . . .
the defendant stipulated to the facts constituting the aggravating circumstance.”).

21
noted at sentencing, without objection or dispute, that at the time of the offenses Aleman had

not only a prior DUI conviction, but also a pending DUI charge on which he later was

convicted. Finally, none of the aggravating factors involved “an inherently subjective

determination.” Timmons, 209 Ariz. 403, ¶ 14, 103 P.3d at 319; see also Oaks, 209 Ariz.

432, ¶ 23, 104 P.3d at 168.

¶34 In short, “we have no difficulty in concluding that on the record in this case no

reasonable jury could have concluded differently than the trial judge concluded” on these

other aggravating circumstances the trial court cited. Henderson, 209 Ariz. 300, ¶ 41, 100

P.3d at 923. And, although the trial court also found some mitigating factors and weighed

them against the aggravating factors, based on the particular factors found and the slightly

aggravated sentence the court imposed (a mere six months above the presumptive term), we

conclude beyond a reasonable doubt that any alleged Blakely error “did not contribute to or

affect the sentencing outcome here.” Resendis-Felix, 209 Ariz. 292, ¶ 11, 100 P.3d at 460.

Thus, any alleged Blakely error was harmless beyond a reasonable doubt.

DISPOSITION

¶35 Aleman’s convictions and sentences are affirmed.

____________________________________
JOHN PELANDER, Chief Judge

E S P I N O S A, Judge, specially concurring.

¶36 I fully concur in the analysis of the motion-to-suppress issue and the ultimate

disposition affirming Aleman’s convictions and sentences. With respect to the Blakely

issues, however, I would find no error, and therefore no need to engage in any harmless error

22
review. Under Blakely, Aleman’s prior conviction, by itself, authorized the aggravated range

and permitted the trial court to impose a sentence anywhere up to the prescribed statutory

maximum. State v. Estrada, 446 Ariz. Adv. Rep. 30 (Ct. App. March 4, 2005); State v.

Chiappetta, ___ Ariz. ___, 107 P.3d 366 (App. 2005) (Espinosa, J.); see State v. Martinez,

209 Ariz. 280, 100 P.3d 30 (App. 2004) (one Blakely-compliant aggravator permits

sentencing within expanded statutory range).

¶37 It also bears mention that the dissent’s view that any Blakely error, by its very

nature, is structural and, therefore, not subject to harmless error review has been rejected by

both divisions of this court. See State v. Henderson, 209 Ariz. 300, 100 P.3d 911 (App.

2004); State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004). Furthermore, the

notion that a sentencing factor admitted by a defendant is subject to independent review

pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969),

needlessly elevates form over substance, particularly on the facts here. There is no question

or doubt about the status of Aleman’s suspended license, which the jury expressly found in

its verdicts on the DUI charges, or his prior DUI conviction. Indeed, Aleman knowingly and

with the assistance of counsel stipulated to the former and acknowledged the latter to the

court at sentencing and does not contest those facts or raise the theory adopted by the dissent.

¶38 Our supreme court has said: “In cases in which a defendant stipulates,

confesses or admits to facts sufficient to establish an aggravating circumstance, we will

regard that factor as established.” State v. Ring, 204 Ariz. 534, 563, 65 P.3d 915, 944 (2003);

see also State v. Finch, 205 Ariz. 170, 68 P.3d 123 (2003) (defendant’s admission that he had

shot victim to prevent his reporting the robbery fully established pecuniary gain motive);

23
State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App. 2004) (defendant’s trial

testimony constituted “facts ‘admitted by the defendant’” for purposes of sentence

aggravation comporting with Blakely); Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind. Ct.

App. 2004) (defendant’s statements at sentencing were facts admitted by him and were

“exempt from the Apprendi/Blakely rule”); cf. State v. Montaño, 206 Ariz. 296, 77 P.3d 1246

(2003) (defendant’s introduction of mitigation evidence relating to prisoner status was

admission of in-custody status for sentence aggravation).

¶39 Moreover, it is difficult to comprehend how even a routine stipulation or

admission by a defendant can provide an element of an offense or the factual basis for a

finding of guilt and judgment of conviction, as occurred here and has occurred in countless

other cases, yet would be deemed insufficient for sentencing purposes absent an independent

Boykin advisory. It was no surprise to Aleman, nor has it ever surprised any criminal

defendant assisted by competent counsel, that such admissions could or would affect their

sentences. In short, the dissent’s view has never been the law, and Blakely does not compel

such an expansion of the Sixth Amendment.

¶40 Finally, even if harmless error analysis were appropriate or required, I agree

that any alleged Blakely error here would be harmless beyond a reasonable doubt.

____________________________________
PHILIP G. ESPINOSA, Judge

F L Ó R E Z, Presiding Judge, concurring in part and dissenting in part.

¶41 I concur with the decision to affirm Aleman’s convictions. I also join Judge

Pelander in rejecting the state’s argument that, even when a trial court finds both aggravating

24
and mitigating factors, a single Blakely-compliant or -exempt aggravating factor authorizes

the court to find additional aggravating factors by reasonable evidence. I dissent, however,

because I believe the trial court erred by considering at least one aggravating factor that was

neither exempt from nor compliant with Blakely. Because I agree with Judge Eckerstrom’s

special concurrence in State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004), that

any Blakely error is structural and, therefore, not subject to harmless error analysis, I would

remand the case for resentencing.

¶42 I would find Blakely error because, in determining Aleman was eligible for an

aggravated sentence, the court weighed at least one non-Blakely-exempt fact that was neither

found by the jury beyond a reasonable doubt nor admitted by Aleman under circumstances

I believe are implicitly required under Blakely and Apprendi—namely, that Aleman admitted

the alleged fact in a knowing, intelligent, and voluntary waiver of his right to have it decided

by a jury beyond a reasonable doubt. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709,

23 L. Ed. 2d 274 (1969) (record in criminal trial must show that a guilty plea was knowingly,

intelligently, and voluntarily made).

¶43 Apprendi made clear that, other than the fact of a prior conviction, a criminal

defendant has the right to have a jury determine beyond a reasonable doubt “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum.” Id. at 490, 120

S. Ct. at 2362-63, 147 L. Ed. 2d at 455. “Almost without exception, the requirement of a

knowing and intelligent waiver has been applied . . . to those rights which the Constitution

guarantees to a criminal defendant in order to preserve a fair trial.” Schneckloth v.

Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 2052-53, 36 L. Ed. 2d 854, 868 (1973); see

25
also Boykin, and State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980) (extending knowing,

voluntary and intelligent standard to all cases in which defendant waives right to a jury trial);

State v. Conroy, 168 Ariz. 373 , 375, 814 P.2d 330, 332 (1991) (“[T]he knowing, voluntary,

and intelligent waiver standard articulated in Boykin applies to all waivers of a jury trial, for

that standard applies to the waiver of any constitutional right.”). The rights Blakely and

Apprendi protect fall within that protected category, and exist at the core of our criminal

justice system. In Blakely, the Supreme Court expressed its “commitment” to insure that the

right to a jury trial “is no mere procedural formality, but a fundamental reservation of power

in our constitutional structure.” ___ U.S. at ___, 124 S. Ct. at 2538-39. I see no reason to

carve out an exception to the general rule expressed in Schneckloth.

¶44 Therefore, although the majority correctly points out that Aleman, in the face

of undisputed evidence presented at trial, conceded at sentencing that “he knew he was

impaired and shouldn’t have been driving” at the time of the accident, that statement cannot

be considered an admission for the purpose of complying with Blakely. Had Aleman known

the consequences of his statement—that the fact he “admitted” would be used against him

to aggravate his sentence—and had he understood that he had a right to require the state to

prove this fact beyond a reasonable doubt to a jury, he might well have not conceded it at

sentencing.

____________________________________
M. JAN FLÓREZ, Presiding Judge

26