SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0087-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0390
BASILIO SOLIZ, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-112881-001 SE
)
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Sherry K. Stephens, Judge
AFFIRMED
________________________________________________________________
Memorandum Decision of the Court of Appeals, Division One
Filed Mar. 10, 2009
VACATED IN PART
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Michael T. O’Toole, Assistant Attorney General
Julie A. Done, Assistant Attorney General
Attorneys for State of Arizona
SHARMILA ROY Laveen
Attorney for Basilio Soliz
________________________________________________________________
R Y A N, Justice
¶1 Article 2, Section 23 of the Arizona Constitution
requires that “[j]uries in criminal cases in which a sentence of
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. . . imprisonment for thirty years or more is authorized by law
shall consist of twelve persons.” In this case we consider
whether this provision is violated when a sentence of thirty
years or more is authorized by law for the crimes charged, the
case proceeds to verdict with a jury of less than twelve people
without objection, and the resulting sentence is less than
thirty years.
I
¶2 The State charged Basilio Soliz with possession of
dangerous drugs for sale. During a settlement conference, the
State offered to permit Soliz to plead guilty with a sentence of
between five and eight years in prison. The prosecutor said
that if Soliz opted for a trial the State would allege two
historical prior felony convictions at sentencing. In that
event, Soliz faced a maximum of thirty-five years in prison.
Soliz declined the offer.
¶3 When the case proceeded to trial, the court empanelled
only eight jurors and one alternate. Neither Soliz nor the
State objected. The jury found Soliz guilty of possession of
dangerous drugs for sale. At sentencing, the State declined to
prove Soliz’s prior convictions or any aggravating circumstance
and requested a presumptive sentence of ten years, which the
trial judge imposed.
¶4 Soliz appealed, arguing that he was deprived of the
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twelve-person jury required by Article 2, Section 23. The court
of appeals reversed. State v. Soliz, 1 CA-CR 07-0390, 2009 WL
597376, at *3 ¶ 11 (Ariz. App. Mar. 10, 2009) (mem. decision).
The court held that the failure to empanel a twelve-person jury
was “fundamental error” that required reversal absent evidence
in the record that the State “withdrew its allegations and thus
reduced Soliz’s exposure to less than thirty years.” Id. at *3
¶ 10.1
¶5 The State petitioned for review, arguing that because
no objection to the eight-person jury was raised at trial, our
most recent formulation of fundamental error review in State v.
Henderson required Soliz to prove that the error was fundamental
and that he had been prejudiced. 210 Ariz. 561, 567 ¶¶ 19-20,
115 P.3d 601, 607 (2005). We granted review to decide this
recurring issue of statewide importance. We exercise
jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031
(2001).
II
A
¶6 As originally adopted, the Arizona Constitution
1
Soliz raised another claim which the court of appeals
summarily rejected. Id. at *1, n.1, ¶ 1. Soliz did not raise
that claim here.
3
provided that the right to a jury trial “shall remain inviolate”
and that juries of less than twelve people could be employed
only “in courts not of record.” Ariz. Const. art. 2, § 23
(amended 1972). In Williams v. Florida, the Supreme Court held
that the Sixth Amendment did not require a twelve-person jury
when a defendant faced a life sentence. 399 U.S. 78, 102-03
(1970) (explaining that “[o]ur holding does no more than leave
these considerations to Congress and the States, unrestrained by
an interpretation of the Sixth Amendment that would forever
dictate the precise number that can constitute a jury”). In
1972, Arizona voters amended Article 2, Section 23 to require
juries of twelve only in “criminal cases in which a sentence of
death or imprisonment for thirty years or more is authorized by
law.” The amended provision stated that “[i]n all other cases,
the number of jurors, not less than six, and the number required
to render a verdict, shall be specified by law.”
¶7 In the same session in which it referred the amendment
of Article 2, Section 23 to the people, the legislature
conditionally passed a statute, now codified at A.R.S. § 21-102
(2002), that provided for eight-person juries in all cases but
those in which twelve jurors were mandated by the amended
provision. See Ariz. Const. art. 2, § 23 and historical note
4
(acknowledging conditional enactment of parallel legislation).2
The legislature thus reserved the twelve-person jury only for
the most serious offenses and measured seriousness by the
potential sentence upon conviction. Cf. Derendal v. Griffith,
209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156 (2005) (holding that
sentence authorized by the legislature indicates the seriousness
of the offense in question).
B
¶8 When determining whether a sentence of thirty years or
more is authorized and thus a twelve-member jury is required
under Article 2, Section 23, courts take into account sentencing
enhancements, see State v. Prince, 142 Ariz. 256, 259, 689 P.2d
515, 518 (1984), and whether consecutive sentences can be
imposed for multiple offenses, see State v. Henley, 141 Ariz.
465, 468, 687 P.2d 1220, 1223 (1984). Here, the maximum prison
sentence for the offense for which Soliz was charged, possession
of dangerous drugs for sale, was fifteen years. However,
2
Section 21-102 provides:
A. A jury for trial of a criminal case in which a
sentence of death or imprisonment for thirty
years or more is authorized by law shall
consist of twelve persons, and the concurrence
of all shall be necessary to render a verdict.
B. A jury trial in any court of record of any
other criminal case shall consist of eight
persons, and the concurrence of all shall be
necessary to render a verdict.
5
because of the State’s additional allegations, Soliz faced a
possible maximum sentence of thirty-five years. Therefore, had
Soliz requested a twelve-person jury, the trial court should
have granted that request.
III
A
¶9 In Henley, this Court held that, even in the absence
of an objection by the defendant, the failure to provide a
twelve-person jury if a sentence of more than thirty years would
have been possible is “fundamental” error because it violated a
constitutional provision. 141 Ariz. at 469, 687 P.2d at 1224.
Henley found reversal was required because the Court “[could]
[]not say beyond a reasonable doubt that the error did not
significantly contribute to the defendant’s conviction . . . .”
Id. The State urges us to revisit this holding in light of
Henderson. Soliz, on the other hand, urges us to recognize
Henley as a rule of structural error and thus presume prejudice.
See State v. Valverde, 220 Ariz. 582, 585 ¶ 10, 208 P.3d 233,
236 (2009) (“If error is structural, prejudice is presumed.”).
B
¶10 “Alleged trial court error in criminal cases may be
subject to one of three standards of review: structural error,
harmless error, or fundamental error.” Id. at 584 ¶ 9, 208 P.3d
at 235. Harmless error review applies when the defendant
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objects to the alleged error at trial. Id. at 585 ¶ 11, 208
P.3d at 236. Structural error, which “deprive[s] defendants of
basic protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence,” State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45,
65 P.3d 915, 933 (2003) (internal quotation marks omitted),
requires no trial objection for reversal, Valverde, 220 Ariz. at
585 ¶ 10, 208 P.3d at 236.
¶11 In all other cases, when no objection is made at
trial, we review only for fundamental error. Id. at ¶ 12.
“Fundamental error is limited to ‘those rare cases that involve
error going to the foundation of the case, error that takes from
the defendant a right essential to his defense, and error of
such magnitude that the defendant could not possibly have
received a fair trial’” and places the burden on the defendant
to show that the error was fundamental and prejudicial. Id.
(quoting Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607).
¶12 The prerequisite to all three categories of error is
that error indeed occurred. Because we conclude that Soliz’s
trial to an eight-person jury removed any risk of his receiving
a sentence of thirty years or more, no constitutional error
occurred; therefore, the parties’ dispute over what category of
error should be applied is irrelevant.
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C
¶13 In interpreting Article 2, Section 23, this Court has
long held that “a criminal defendant is not ‘at risk’ in terms
of maximum sentence until the case is submitted to the jury.”
Prince, 142 Ariz. at 259, 689 P.2d at 518. Thus, if by the time
the case is submitted, a sentence of thirty years or more is no
longer “authorized by law,” Article 2, Section 23 does not
mandate twelve jurors. Id.
¶14 In Prince, for example, the state represented that it
would pursue only a single prior conviction for sentencing
purposes, rather than the multiple convictions previously
alleged. Id. at 258, 689 P.2d at 517 (noting that the
prosecutor told the trial court that only one prior conviction
was alleged). This Court observed that the prosecutor’s
statement in effect withdrew the allegation of multiple prior
felony convictions, thus reducing the maximum sentence
authorized by law. Id. The Court concluded that “[b]y allowing
the trial to proceed before an eight-member jury, trial counsel
effectively foreclosed the ability of the prosecution to prove
that appellant had been convicted of two felonies, thereby
reducing the maximum possible sentence of imprisonment” to less
than thirty years. Id. at 260, 689 P.2d at 519; see also State
v. Cook, 122 Ariz. 539, 541, 596 P.2d 374, 376 (1979)
(permitting withdrawal of an allegation of a prior conviction in
8
order to lower defendant’s maximum exposure); State v. Thompson,
139 Ariz. 133, 134, 677 P.2d 296, 297 (App. 1983) (no
prejudicial error when judge, over objection of defendant,
reduced charge so that any sentence would be less than thirty
years).
¶15 These cases are consistent with the Supreme Court’s
approach to the Sixth Amendment. For example, in Scott v.
Illinois, the Court held that the Sixth Amendment does not
require appointment of counsel when the “defendant is charged
with a statutory offense for which imprisonment upon conviction
is authorized but not actually imposed upon the defendant.” 440
U.S. 367, 369 (1979); see also Argersinger v. Hamlin, 407 U.S.
25, 40 (1972) (noting that sentencing judges will be deemed
aware of controlling right-to-counsel case law requiring counsel
in face of imprisonment in determining in what manner to permit
the case to proceed). Similarly, Justices Kennedy and Breyer,
in their concurrence in Lewis v. United States, 518 U.S. 322
(1996), concluded that a defendant did not have a right to a
jury trial when the trial judge in the case stated that she
would not impose a sentence of more than six months’
imprisonment. Id. at 338.
¶16 In the cited Arizona cases, the prosecutor or judge
explicitly acted to effectively reduce the defendant’s jeopardy
before the jury began deliberations. The appellate courts
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concluded that the constitutional protections applicable to the
largest theoretical sentence that the legislature approved for
that defendant no longer applied. We believe that what was
explicit in those situations is implicit here. By failing to
request a jury of twelve, the State effectively waived its
ability to obtain a sentence of thirty years or more.3 The trial
judge affirmed this by failing to empanel a jury of twelve. In
such a circumstance, as long as a lesser sentence may legally be
imposed for the crime alleged, we hold that a sentence of thirty
years or more is no longer permitted and that the twelve-person
guarantee of Article 2, Section 23 is not triggered.
D
¶17 We acknowledge that the approach we adopt departs from
Henley and subsequent cases that relied on it,4 particularly
3
Because the State concedes that there is no victim in this
case we need not determine whether the State’s decision to waive
a particular sentence implicates a crime victim’s right “[t]o be
heard at any proceeding involving . . . sentencing.” Ariz.
Const. art. 2, § 2.1(4); see also State v. Lamberton, 183 Ariz.
47, 49, 899 P.2d 939, 941 (1995) (recognizing that state statute
and court rule define criminal proceeding as “matters before the
trial court”).
4
See, e.g., State v. Smith, 197 Ariz. 333, 340 ¶ 21, 4 P.3d
388, 395 (App. 1999) (reversible error when defendant’s right to
twelve person jury waived by defense counsel’s stipulation with
state that sentences would run concurrently, resulting in a
sentence of less than thirty years); State v. Pope, 192 Ariz.
119, 121 ¶¶ 10, 12, 961 P.2d 1067, 1069 (App. 1998) (judge’s
assurance that sentences would run concurrently did not cure
error in failing to empanel a jury of twelve); State v. Luque,
171 Ariz. 198, 201, 829 P.2d 1244, 1247 (App. 1992) (acquittal
10
State v. Pope, which held that a defendant could not be deprived
of a twelve-person jury by a judge’s assurance that a sentence
of less than thirty years would be imposed. 192 Ariz. 119, 121
¶ 10, 961 P.2d 1067, 1069 (App. 1998). Henley, however, created
anomalous results. First, because Henley adopted, in essence,
an automatic reversal rule, in many cases defense counsel had no
incentive to request a twelve-person jury. Instead, counsel
could decide to see what verdict an eight-person jury reached,
knowing that a retrial would always result if the client faced a
potential sentence of thirty years or more. Second, because the
state would usually be prohibited from seeking a sentence longer
than initially imposed after a defendant’s successful appeal,
see Blackledge v. Perry, 417 U.S. 21, 28-29 (1974); State v.
Noriega, 142 Ariz. 474, 483, 690 P.2d 775, 784 (1984), overruled
on other grounds by State v. Burge, 167 Ariz. 25, 28 n.7, 804
P.2d 754, 757 n.7 (1990), a remand after a reversal under the
Henley approach would be conducted before an eight-person jury.
Our holding here avoids such anomalous results while, at the
same time, protects defendants from lengthy imprisonment in
cases in which the jury is not comprised of twelve persons.
¶18 Accordingly, Soliz could not, as a matter of law,
on one or more charges so that maximum cumulative sentence could
not exceed thirty years does not cure error in failing to
empanel a twelve-member jury).
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receive a sentence of thirty years or more based on the State’s
additional allegations once a jury of less than twelve began
deliberations. Ariz. Const. art. 2, § 23; A.R.S. § 21-102(A).
As a result, no error occurred in this case.
IV
¶19 For the foregoing reasons we vacate the court of
appeals’ determination as to Article 2, Section 23 and affirm
the judgment of the superior court.
_____________________________________
Michael D. Ryan, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
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