SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-12-0018-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 10-0075
AUSTIN JAMES BONFIGLIO, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2009-122982-001
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Lisa Ann VandenBerg, Commissioner
AFFIRMED
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Opinion of the Court of Appeals, Division One
228 Ariz. 349, 266 P.3d 375 (App. 2011)
AFFIRMED
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THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Angela Corinne Kebric, Assistant Attorney General
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Mikel P. Steinfeld, Deputy Public Defender
Attorneys for Austin James Bonfiglio
________________________________________________________________
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B R U T I N E L, Justice
¶1 A court must set forth on the record at sentencing one
of the specific statutory aggravating factors enumerated in
A.R.S. § 13-701(D)(1)–(23) before it may impose an aggravated
sentence. We hold that once the court identifies one of these
factors, it may rely on the “catch-all” aggravator provision in
§ 13-701(D)(24) to increase the sentence even if the court does
not expressly use the specific statutory aggravator as a basis
for increasing the sentence.
I.
¶2 On November 25, 2009, a jury found Austin James
Bonfiglio guilty of aggravated assault, a class 3 dangerous
felony. As an aggravating factor, the jury found that Bonfiglio
“had the ability to walk away from the confrontation,” but had
not done so.
¶3 Before sentencing, Bonfiglio admitted two prior felony
convictions, a specific statutory aggravating factor under § 13-
701(D)(11). At sentencing, the trial court acknowledged
Bonfiglio’s prior convictions and also noted that he was on
probation when the offense occurred. The court recognized on
the record that Bonfiglio’s prior convictions subjected him to
an enhanced sentence range:
[A]t this point, you have already admitted at a trial
on the priors, two prior felony convictions. The
court is cognizant of the record previously made on
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that date[;] given that, the court will sentence you
under a range provided by the statute for two
historical priors for a class three felony under the
non[-]dangerous categories, [§] 13-702.
The trial court then imposed an aggravated sentence,
stating:
With that, I am cognizant of the facts [sic] that
because you were on probation at the time of the
offense which was also resolved at trial on the
priors, that the minimum you can receive is the
presumptive which is a [sic] 11.25 years.
However, as I stated, the court has considered the one
aggravating factor the jury found. I have considered
all of the information that has been presented and
this court does find it appropriate to order that you
serve a term of 13 years, a slightly aggravated
term[,] in the Department of Corrections.
¶4 Bonfiglio appealed, arguing that the trial court’s use
of the “catch-all” aggravating factor found by the jury was
improper. State v. Bonfiglio, 228 Ariz. 349, 352 ¶ 9, 266 P.3d
375, 378 (App. 2011). The court of appeals affirmed Bonfiglio’s
conviction and sentence. Id. at 355 ¶ 24, 266 P.3d at 381.
¶5 The court recognized that the jury-found aggravator was
a “catch-all” aggravator because it was not specifically
statutorily enumerated, id. at 354 ¶ 19, 266 P.3d at 380, and as
such, could not serve as the sole basis for imposing an
aggravated sentence, id. (citing State v. Schmidt, 220 Ariz.
563, 566 ¶ 10, 208 P.3d 214, 217 (2009)). The court noted,
however, that the trial court was required to consider the prior
felony convictions as an aggravating circumstance and to
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sentence Bonfiglio under the range for a repetitive offender.
Id. at 354–55 ¶¶ 22, 24, 266 P.3d at 380–81 (citing A.R.S. § 13-
701(D)). The court concluded that the prior convictions
“exposed [Bonfiglio] to the maximum sentence authorized by the
applicable sentencing statute for repetitive offenders, whether
or not the [trial] court expressly stated that it had used the
criminal history to aggravate the sentence.” Id. at 355 ¶ 24,
266 P.3d at 381. As a result, the court of appeals determined
that the trial court’s use of the “catch-all” aggravator was not
error. Id.
¶6 The court expressly disagreed with State v. Zinsmeyer,
222 Ariz. 612, 218 P.3d 1069 (App. 2009). Bonfiglio, 228 Ariz.
at 355 ¶ 23, 266 P.3d at 381. In Zinsmeyer, the court of
appeals vacated an aggravated sentence and remanded for
resentencing because the trial court did not rely on the
defendant’s prior felony conviction as an aggravator, although
the prior conviction was used to enhance the sentence. 222
Ariz. at 621–23 ¶¶ 20–26, 218 P.3d at 1078–80. Because the only
aggravating factor cited was a “catch-all” factor, Zinsmeyer
concluded that the aggravated sentence was “illegal,” and
therefore constituted fundamental, prejudicial error. Id.
¶¶ 24–26.
¶7 We granted review to answer a question of statewide
importance and to resolve the conflict in the court of appeals’
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opinions. We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
II.
¶8 A trial court may impose a maximum prison term only if
one or more statutory aggravating circumstances are found or
admitted. A.R.S. § 13-701(C). Section 13-701(D) lists twenty-
three enumerated aggravating factors, including prior felony
convictions, § 13-701(D)(11), and one “catch-all” aggravator,
§ 13-701(D)(24), which permits the trier of fact to consider
“[a]ny other factor that the state alleges is relevant to the
defendant’s character or background or to the nature or
circumstances of the crime.”
¶9 We have held that an aggravated sentence based solely
on the “catch-all” aggravator violates due process because that
aggravator is “patently vague.”1 Schmidt, 220 Ariz. at 566 ¶¶ 9–
10, 208 P.3d at 217. But Schmidt permits use of the “catch-all”
aggravator in sentencing “[w]hen one or more clearly enumerated
aggravators are found consistent with Apprendi.” Id. ¶ 11
(referencing Apprendi v. New Jersey, 530 U.S. 466 (2000)). In
that event, “the ‘elements’ of the aggravated offense will have
1
Schmidt interpreted an older version of the “catch-all”
aggravator, which stated “any other factors which the court may
deem appropriate to the ends of justice.” 220 Ariz. at 564 ¶ 1,
208 P.3d at 215 (quoting A.R.S. § 13-702(D)(13)). Neither party
argues that the change in the statute warrants a different
resolution than that reached in Schmidt.
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been identified with sufficient clarity to satisfy due process.”
Id.
¶10 Schmidt does not require a trial court to state that it
relied on one of the specifically enumerated factors to
aggravate a defendant’s sentence in order to use the “catch-all”
aggravator. Rather, Schmidt permits a trial court to use a
“catch-all” aggravator to impose a sentence up to the statutory
maximum as long as a properly found specifically enumerated
aggravating factor made the defendant eligible for a sentence
greater than the presumptive. See State v. Carreon, 211 Ariz.
32, 33 ¶¶ 6–7, 116 P.3d 1192, 1193 (2005) (finding of historical
prior convictions alone exposed the defendant to an aggravated
sentence); State v. Martinez, 210 Ariz. 578, 584–86 ¶¶ 21, 27,
115 P.3d 618, 624–26 (2005) (finding of a “single aggravating
factor establishes the facts legally essential to expose the
defendant” to an aggravated sentence).
¶11 In this case, the trial court stated on the record that
it used the prior convictions to sentence Bonfiglio as a
repetitive offender. See State v. Ritacca, 169 Ariz. 401, 403,
819 P.2d 987, 989 (App. 1991) (holding that a trial court may
use prior convictions to enhance and aggravate a sentence).
This finding on the record satisfies Schmidt. With due process
concerns allayed, the judge could rely on the jury’s finding of
the “catch-all” factor.
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¶12 State v. Harrison, 195 Ariz. 1, 985 P.2d 486 (1999),
does not compel a different result. In Harrison, we noted that
§ 13-701(C) requires the judge to set forth factual findings
supporting aggravating circumstances “on the record at the time
of sentencing.” Id. at 3 ¶ 6, 985 P.2d at 488 (discussing § 13-
702(B), now renumbered as § 13-701(C)). We did not require
trial judges to recite a “specific litany” or make “formal
findings or conclusions.” Id. at 4 ¶ 12, 985 P.2d at 489.
Rather, Harrison simply required that the sentencing transcript
identify the court’s reasons for imposing an aggravated
sentence. Id. ¶ 13.
¶13 The trial court here complied with § 13-701(C) and
Harrison. The court found on the record Bonfiglio’s prior
convictions, qualifying him for an aggravated sentence. The way
was thus appropriately paved for the court to consider the
“catch-all” aggravator, which was also plainly found in the
sentencing transcript.
¶14 Given the confusion that gave rise to this case,
however, Harrison’s instruction is worth emphasizing. Trial
courts should clearly “articulat[e] at sentencing the factors
the judge considered to be aggravating or mitigating and
explain[] how th[ose] factors led to the sentence[] imposed.”
Id. ¶ 12. A statement that the prior conviction was a
prerequisite for an aggravated sentence, even if the court did
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not rely upon it as its reason for aggravating the sentence,
will inform the defendant of the court’s rationale for imposing
the sentence and, as expressed in Harrison, will “enable an
appellate court to determine whether the trial judge has
correctly considered the specific aggravating or mitigating
circumstances.” Id. ¶ 11.
III.
¶15 We conclude that the trial court did not err in using
the “catch-all” aggravator as a basis for imposing an aggravated
sentence once the court found a specifically enumerated
aggravating factor. Accordingly, we overrule Zinsmeyer to the
extent it is inconsistent with this opinion. We affirm
Bonfiglio’s sentence and affirm the opinion of the court of
appeals.
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Robert M. Brutinel, Justice
CONCURRING:
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Rebecca White Berch, Chief Justice
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Scott Bales, Vice Chief Justice
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A. John Pelander, Justice
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Peter J. Cahill, Judge*
* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Peter J. Cahill, Presiding Judge of the Superior
Court in Gila County, was designated to sit in this matter.
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