State v. Carreon

                      SUPREME COURT OF ARIZONA
                               En Banc



STATE OF ARIZONA,                 )       Arizona Supreme Court
                                  )       No. CR-03-0160-AP
                        Appellee, )
                                  )       Maricopa County Superior
                 v.               )       Court
                                  )       No. CR 2001-090195
ALBERT MARTINEZ CARREON,          )
                                  )        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 Maricopa County
                    Honorable James H. Keppel
                        SENTENCES AFFIRMED
________________________________________________________________

TERRY GODDARD, ATTORNEY GENERAL                                 Phoenix
  By      Kent E. Cattani, Chief Counsel
          Capital Litigation Section
          Dawn M. Northup, Assistant Attorney General
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER           Phoenix
  By      Brent E. Graham, Deputy Public Defender
          Karen M. Noble, Deputy Public Defender
Attorneys for Albert Martinez Carreon
________________________________________________________________

M c G R E G O R, Chief Justice

¶1        A   jury   convicted   Albert   Martinez   Carreon   of   first

degree murder and sentenced Carreon to death.           The jury also

convicted Carreon of several non-capital offenses, for which the

trial judge imposed various terms of imprisonment.         We affirmed

his convictions and sentence of death in State v. Carreon, 210

Ariz. 54, ___ ¶ 100, 107 P.3d 900, 920 (2005).
¶2            In a supplemental brief filed after the United States

Supreme Court issued its opinion in Blakely v. Washington, 542

U.S. 296 (2004), Carreon challenged the procedure by which the

trial   court    imposed   aggravated        sentences   for   his    non-capital

convictions.      Carreon contends that the Sixth Amendment required

a jury, not a judge, to find all of the aggravating factors on

which   the    court   relied   in    sentencing    him.       In    our   previous

opinion in this case, we stated that we would address this issue

in a supplemental opinion.           Carreon, 210 Ariz. at ___ ¶ 125, 107

P.3d at 922.     This is that opinion.1         We find no error.

                                        I.

¶3            The trial judge sentenced Carreon to aggravated prison

terms on his non-capital convictions pursuant to Arizona Revised

Statutes (A.R.S.) § 13-604 (2001) and § 13-702 (2001).                     Carreon

does not assert that the trial judge erred in relying upon these

statutes.       Carreon does not dispute that his use of a deadly

weapon during the commission of his crimes brought him within

the ambit of § 13-604 and does not argue that any sentence

imposed for his non-capital offenses fell outside the sentencing

range allowed under § 13-604 when one or more of the § 13-702.C

aggravators are present.             Carreon also acknowledges that the

State proved to the jury that he previously had been convicted


1
     We exercise jurisdiction pursuant to Article 6, Section 5.3
of the Arizona Constitution and A.R.S. § 13-4031 (2001).

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of two felonies and that he committed the offenses while on

release    from   the   Department     of   Corrections.      Carreon’s   only

claim is that the trial judge violated his Sixth Amendment right

to a trial by jury by finding and relying upon aggravators other

than those found by the jury.

¶4          Although     the   trial    judge    did    not   make   specific

findings of aggravation under A.R.S. § 13-702.C, he made the

following statement with regard to the non-capital sentences:

     The defendant, as proven during the course of the
     trial, did have prior felony convictions and was on
     release at the time he committed these offenses.   I
     further find that he’s a stone-cold killer and a
     danger to society, all of which aggravating factors
     call for the maximum possible terms to be imposed.

¶5          The Sixth Amendment to the United States Constitution

guarantees a criminal defendant’s right to a trial by jury.

That right continues through sentencing.               The Sixth Amendment,

however,

     does not remove from a trial judge the traditional
     sentencing discretion afforded the judge, so long as
     the   judge   exercises   that  discretion  within   a
     sentencing range established by the fact of a prior
     conviction, facts found by a jury, or facts admitted
     by a defendant.    Once a jury finds the facts legally
     essential to expose a defendant to a statutory
     sentencing range, the sentencing judge may consider
     additional factors in determining what sentence to
     impose, so long as the sentence falls within the
     established range.2

2
     Only those facts that increase the maximum sentence to
which a defendant is exposed are legally essential to the
defendant’s sentence. State v. Martinez, ___ Ariz. ___ ¶ 21,
___ P.3d ___ (2005).

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State v. Martinez, ___ Ariz. ___ ¶ 16, ___ P.3d ___ (2005).

¶6           The State alleged and proved at trial that Carreon had

previously     been   convicted     of       two    felonies,       kidnapping     and

aggravated    assault.      The   presence          of    this   aggravator      alone

exposed Carreon to the aggravated sentencing range of § 13-604.

¶7           Nonetheless,    Carreon      alleges         that   the    trial    judge

violated     his   Sixth    Amendment         right      by   finding     additional

aggravating factors that were not admitted by him, not implicit

in the jury’s verdict, and not presented to the jury and found

beyond a reasonable doubt.             We explicitly rejected Carreon’s

argument     in    Martinez.        Under          our    holding      there,     once

constitutionally      permitted   factors          made    Carreon     eligible   for

aggravated sentences, the trial judge could “find and consider

additional factors relevant to the imposition of a sentence up

to   the   maximum     prescribed        in    [the       sentencing]      statute.”

Martinez, ___ Ariz. at ___ ¶ 26, ___ P.3d at ___.

                                       II.

¶8           For the foregoing reasons, we affirm Carreon’s non-

capital sentences.




                               _________________________________________
                               Ruth V. McGregor, Chief Justice




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CONCURRING:


_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
Andrew D. Hurwitz, Justice




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