SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0402-AP
Appellee, )
) Mohave County
v. ) Superior Court
) No. CR-96-865
FRANK WINFIELD ANDERSON, )
) S U P P L E M E N T A L
Appellant. ) O P I N I O N
)
__________________________________)
Appeal from the Superior Court of Mohave County
Honorable James E. Chavez
SENTENCE AFFIRMED
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Robert J. Gorman, Assistant Attorney General Tucson
Attorneys for the State of Arizona
LAW OFFICES OF THOMAS J. PHALEN Phoenix
By Thomas J. Phalen
And
LAW OFFICES OF THOMAS A. GORMAN Sedona
By Thomas A. Gorman
Attorneys for Frank Winfield Anderson
H U R W I T Z, Justice
¶1 Our previous opinion affirmed appellant Frank Winfield
Anderson’s convictions for conspiracy to commit first degree
murder, armed robbery, and three counts of first degree murder.
State v. Anderson, 210 Ariz. 327, 111 P.3d 369 (2005). We also
affirmed the sentences of death imposed for each count of first
degree murder and the sentence of life imprisonment without the
possibility of release for twenty-five years imposed for the
conspiracy conviction. Id. at 359 ¶ 147, 111 P.3d at 401. We
deferred resolution, however, of Anderson’s claim that the
superior court violated the rule set forth in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S.
Ct. 2531 (2004), by imposing a sentence of twelve and one-half
years for the armed robbery conviction. We address that issue
in this supplemental opinion.
I.
¶2 The Supreme Court of the United States held in
Apprendi that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at 490. Blakely
explained 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.” 124 S. Ct. at 2537.
¶3 Armed robbery is a class 2 felony, Ariz. Rev. Stat.
(“A.R.S.”) § 13-1904(B) (1989), which carries a presumptive
sentence of five years’ imprisonment, A.R.S. § 13-701(C)(1)
(Supp. 1995). That presumptive sentence is the “statutory
2
maximum” for a class 2 felony for Apprendi/Blakely purposes in
the absence of the factual findings required under the
applicable statutes to support an aggravated or enhanced
sentence. See State v. Brown (McMullen), 209 Ariz. 200, 203 ¶
12, 99 P.3d 15, 18 (2004).
¶4 The superior court imposed an aggravated sentence of
twelve and one-half years pursuant to A.R.S. § 13-702.01 (Supp.
1995). That statute allows the trial court to “increase the
maximum term of imprisonment otherwise authorized” for a class 2
felony up to twenty-three and one-quarter years for a defendant
with one historical prior felony conviction “if the court finds
that at least two substantial aggravating factors listed in §
13-702, subsection C apply.” A.R.S. § 13-702.01(C).1 The
superior court found six aggravating factors with respect to the
armed robbery: (1) infliction of serious physical injury, see §
13-702(C)(1); (2) use of a deadly weapon in the commission of
the offense, see § 13-702(C)(2); (3) presence of an accomplice,
1
The superior court did not identify the statute under which
the sentence was imposed. It appears that the trial judge
intended to impose the maximum super-aggravated sentence of
twelve and one-half years under A.R.S. § 13-702.01(A). That
subsection, however, applies only to persons convicted of a
felony “without having previously been convicted of any felony.”
Because Anderson had a recent prior felony conviction, he was
eligible for sentencing under the more punitive provisions of §
13-702.01(C). In order to facilitate appellate review, trial
judges should indicate on the record the specific statutory
subsection under which a criminal sentence is imposed.
3
see § 13-702(C)(4); (4) expectation of pecuniary gain, see § 13-
702(C)(6); (5) conviction of a previous felony, see § 13-
702(C)(11);2 and (6) commission of the offense by ambush, see §
13-702(C)(16).3
¶5 Anderson claims that because none of these aggravating
factors was submitted to the jury for determination, his
aggravated sentence violates the Sixth Amendment of the United
States Constitution as explicated in Apprendi and Blakely.
Anderson did not raise this claim in the superior court, and we
therefore review only for fundamental error. See State v.
Henderson, __ Ariz. __, __ ¶ 19, 115 P.3d 601, 607 (2005).
2
Anderson acknowledged having been convicted of a felony in
1995, the year before the armed robbery in this case. That
conviction qualified as a “historical prior felony conviction”
under A.R.S. § 13-702.01(C). See A.R.S. § 13-604 (V)(2) (Supp.
2004) (defining “historical prior felony conviction”). The fact
of a prior conviction may constitutionally be found by the trial
judge, rather than the jury. Apprendi, 530 U.S. at 490.
3
The superior court did not identify any aggravator with
specific reference to § 13-702(C). Rather, the judge simply
stated as follows:
The Court finds the following aggravating
factors: That the offense was committed by inflicting
serious bodily injury, that deadly weapons were used
in the commission of the offense, that the offenses
were committed with an accomplice, that the goal of
the offense was pecuniary gain, that the defendant has
a prior felony, and it was committed by ambush. The
Court finds all of those aggravating factors to be
substantial aggravating factors.
4
II.
A.
¶6 The jury found Anderson guilty of three counts of
first degree murder. Those verdicts establish beyond a
reasonable doubt the existence of the § 13-702(C)(1) “serious
physical injury” aggravator. See State v. Martinez, __ Ariz.
__, __ ¶ 27 & n.6, 115 P.3d 618, 625 & n.6 (2005) (finding
(C)(1) aggravator for burglary and theft convictions established
by jury verdict of guilt of first degree murder).
¶7 In addition, the jury concluded beyond a reasonable
doubt that each of the murders was motivated by pecuniary gain.
See A.R.S. § 13-703(F)(5).4 Although the jury did not make a
separate finding with respect to the motivation for the armed
robbery, no reasonable jury could have failed to find the
pecuniary gain aggravator, § 13-702(C)(6), under the facts of
this case. The murders and the armed robbery were committed as
part of a continuous course of conduct; the murders were the
means by which the armed robbery was accomplished. Thus, under
the facts of this case, the failure of the superior court to
4
Following an independent review of the record, this Court
also concluded that a pecuniary gain motive was proved beyond a
reasonable doubt for each of the murders. Anderson, 210 Ariz.
at 351 ¶ 105, 111 P.3d at 393.
5
submit to the jury the issue of motivation for the armed robbery
was at worst harmless error.5
B.
¶8 We held in Martinez that nothing in Apprendi or its
progeny prohibits a trial judge from finding and relying on
additional aggravating circumstances once facts sufficient to
expose the defendant to a particular range of sentence have been
found in conformity with the Sixth Amendment’s jury trial
requirement. __ Ariz. at __ ¶ 26, 115 P.3d at 625. In this
case, for the reasons explained above, neither the finding of a
historical prior felony conviction nor the findings of serious
physical injury and a pecuniary gain motive violated the Sixth
Amendment. These findings were sufficient to expose Anderson to
a sentence of twenty-three and one-quarter years under § 13-
702.01(C). Once a sentencing range up to this statutory maximum
was authorized in a constitutional manner, the trial judge was
5
Given our resolution of this issue, we need not today
determine whether a jury verdict of guilty for armed robbery is
also a finding that the robbery was motivated by the expectation
of the receipt of pecuniary gain. See A.R.S. § 13-1902(A) (“A
person commits robbery if in the course of taking any property
of another from his person or immediate presence and against his
will, such person threatens or uses force against any person
with intent either to coerce surrender of property or to prevent
resistance to such person taking or retaining property.”)
(emphasis added). But cf. State v. Carriger, 143 Ariz. 142,
161, 692 P.2d 991, 1010 (1984) (holding that a conviction of
first degree felony murder based on the predicate felony of
robbery does not establish the pecuniary gain aggravator set
forth in § 13-703(F)(5) with respect to the murder).
6
permitted to find and rely upon additional aggravating factors
in imposing the sentence within that range.
III.
¶9 Because two aggravating factors and the existence of a
historical prior felony conviction were found in accordance with
the Sixth Amendment, the aggravated sentence for the armed
robbery conviction was constitutionally imposed. We therefore
affirm that sentence.
Andrew D. Hurwitz, Justice
CONCURRING:
_________
Ruth V. McGregor, Chief Justice
_________
Rebecca White Berch, Vice Chief Justice
____
Michael D. Ryan, Justice
7