State v. Henderson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0442-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 03-0920
ROBERT ALLEN HENDERSON, )
) Maricopa County
Appellant. ) Superior Court
) No. CR-2003-009923-001 DT
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Karen L. O’Connor, Judge
No. CR-2003-009923-001 DT

CONVICTION AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
209 Ariz. 300, 100 P.3d 911 (App. 2005)

AFFIRMED IN PART; VACATED IN PART
________________________________________________________________

TERRY GODDARD, ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Nicolas D. Acedo, Assistant Attorney General
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Edward F. McGee, Deputy Public Defender
Attorneys for Robert Allen Henderson
________________________________________________________________

M c G R E G O R, Chief Justice
¶1 We granted review to consider whether a reviewing

court should consider a claim based upon Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531 (2004), under a harmless error or

a fundamental error standard when the defendant failed to raise

the issue at trial. We hold that such claims should be reviewed

for fundamental error.

I.

¶2 Robert Allen Henderson lived with his 73-year-old

mother, Marian Pyle, at her house. During an argument,

Henderson assaulted Pyle. The assault continued until Pyle

forced Henderson from her bedroom. The next morning, Pyle’s

daughter arrived and Pyle left her bedroom. When Pyle’s

daughter left the house, Henderson attacked Pyle again. The

attack continued until sheriff’s deputies arrived and arrested

Henderson. The deputies observed that Pyle had abrasions on her

face and nose, a chipped tooth, and cuts and abrasions on her

hands. Pyle also complained of back injuries.

¶3 Henderson was indicted on one count of kidnapping,

Ariz. Rev. Stat. (A.R.S.) § 13-1304 (2001), one count of

assault, A.R.S. § 13-1203 (2001), and one count of threatening

or intimidating, A.R.S. § 13-1202 (2001). The jury convicted

Henderson of assault and threatening or intimidating. The jury

did not convict him of kidnapping, but did find him guilty of

2
the lesser included offense of unlawful imprisonment, A.R.S. §

13-1303 (2001).

¶4 Pursuant to A.R.S. § 13-702.01.A (2001), the trial

judge imposed a “super-aggravated” sentence for the unlawful

imprisonment conviction. Unlawful imprisonment is a class 6

felony that carries a presumptive term of one year. A.R.S. §

13-701.C.5 (2001). Section 13-702.A (2001) permits a sentencing

court to increase or reduce the presumptive sentence and

mandates that any increase or decrease be based on the

“aggravating and mitigating circumstances” contained within that

same section. Id. The maximum term that a judge can impose

under section 13-702.A for a class 6 felony is 1.5 years. Id.

Section 13-702.01.A, however, provides that a judge can increase

the sentence for a class 6 felony to two years, providing that

the court “finds [] at least two substantial aggravating factors

listed in § 13-702, subsection C.”

¶5 The trial court found three aggravating circumstances

that fit within the list of statutory aggravators codified in

A.R.S. § 13-702.C: infliction or threatened infliction of

serious physical injury, § 13-702.C.1; physical and emotional

harm caused to the victim, § 13-702.C.9; and that the victim was

3
over the age of sixty-five, § 13-702.C.13.1 Henderson did not

object either to the fact that the court, not a jury, found the

aggravators or to the court’s decision to impose a super-

aggravated sentence.

¶6 On appeal, Henderson alleged that the trial judge

erred by not giving him proper credit for his presentence

incarceration and also raised claims related to his Fifth

Amendment privilege against self-incrimination. He did not

raise any Sixth Amendment claims.

¶7 After Henderson submitted the case to the court of

appeals, the United States Supreme Court issued its opinion in

Blakely v. Washington, holding that “any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

1
The court did not make explicit references to A.R.S. § 13-
702.C when sentencing Henderson. Rather, the court made the
following statement:
Mr. Henderson, I was here at your trial. I heard
the testimony. I observed the witnesses testify, and
in aggravation I find that the violent nature of the
facts of this case are aggravating. The trauma that
you’ve caused Ms. Pyle and the injuries that you’ve
caused her are aggravating.
I find, in aggravation, Ms. Pyle’s age. I
further find in aggravation that you have no remorse
whatsoever for any of these offenses. I find in
aggravation your statements that you made to me today.
I don’t have to consider the allegations that
would have been presented on acts that are unrelated
to the crimes that you committed on March 15, 2003 to
find that this crime here, all by itself, warrants a
super aggravated sentence, and the most I can give you
under this crime is two years, and so that’s what I’m
going to do.

4
be submitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 542 U.S. at ___, 124 S. Ct. at 2536 (quoting Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000)). Sua sponte, the court

of appeals ordered the parties to file supplemental briefs on

the issues of whether Blakely applied to Henderson’s sentencing

and, if so, whether the court should consider any Blakely error

under a harmless error analysis.

¶8 The court concluded that Blakely did apply to

Henderson’s direct appeal, which was pending at the time Blakely

was decided. State v. Henderson, 209 Ariz. 300, 303 ¶ 9, 100

P.3d 911, 914 (App. 2004). The court also concluded that

Blakely error constitutes trial error, rather than structural

error. Id. at 311 ¶ 34, 100 P.3d at 922. The court correctly

noted the distinction between the two types of trial error,

stating that “trial error to which an objection is made at trial

is subject to a harmless error analysis” while “trial error to

which no objection is made at trial is subject to a review for

fundamental error.” Id. at 304 ¶ 13, 100 P.3d at 915. The

court then applied the harmless error standard from State v.

Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring III), holding that

“judicial fact-finding . . . may constitute harmless error if we

can conclude beyond a reasonable doubt that no reasonable jury

would fail to find the aggravating circumstance.” Henderson,

209 Ariz. at 311 ¶ 35, 100 P.3d at 922 (citations omitted).

5
¶9 The State contends that the court erroneously applied

the harmless error standard to Henderson’s Blakely claim,

because Henderson had not preserved his objection at trial.

Specifically, the State argues that, under the correct

fundamental error standard, Henderson must establish not only

that fundamental error occurred but also that the error caused

prejudice. See State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980,

982 (1984).

¶10 We granted review to determine whether the court of

appeals erred in applying a harmless error standard to

Henderson’s Blakely claim. We exercise jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution and Rule

31.19 of the Arizona Rules of Criminal Procedure.2

II.

¶11 The parties no longer dispute several issues

considered at earlier stages of this proceeding. First, neither

party disputes that the holding of Blakely applies to this case.

In addition, as the State candidly conceded at oral argument,

Blakely error clearly occurred. A judge, not a jury, found

2
Henderson initially contended that this appeal is moot
because he has been released from prison. The State conceded
that the case is moot, but nonetheless urged us to take review.
As a general rule, this Court will not examine moot questions
unless they present issues of great public importance or they
are likely to recur. See David G. v. Pollard ex rel. County of
Pima, 207 Ariz. 308, 309 ¶ 6, 86 P.3d 364, 365 (2004). This
case meets both criteria.

6
facts that made Henderson eligible for an aggravated sentence

and, in doing so, applied a lesser standard of proof than

Blakely requires. Moreover, Henderson acknowledges that he made

no trial objection that could be construed as raising any

Blakely issue.

¶12 Finally, Henderson does not challenge the court of

appeals’ conclusion that Blakely error constitutes trial, not

structural, error, a conclusion with which we agree. As we held

in Ring III, there are “relatively few instances in which we

should regard error as structural.” 204 Ariz. at 552 ¶ 46, 65

P.3d at 933. Structural errors, as opposed to trial errors, are

those which “deprive defendants of basic protections without

which a criminal trial cannot reliably serve its function as a

vehicle for guilt or innocence.” Id. at ¶ 45 (quoting Neder v.

United States, 527 U.S. 1, 8-9 (1999) (internal quotations

omitted). Additionally, errors are considered structural rather

than trial errors when they “affect the ‘entire conduct of the

trial from beginning to end,’” and thus taint “‘the framework

within which the trial proceeds.’” State v. Anderson, 197 Ariz.

314, 323 ¶ 22, 4 P.3d 369, 378 (2000) (quoting Arizona v.

Fulminante, 499 U.S. 279, 307-08, 309-10 (1991)). We previously

have held that we will analyze Apprendi error as trial error,

7
rather than as structural error.3 See State v. Sepahi, 206 Ariz.

321, 324 n.3, ¶ 19, 78 P.3d 732, 735 n.3 (2003); see also Ring

III, 204 Ariz. at 555 ¶ 53, 65 P.3d at 936. In Ring III, we

held that, in the capital context, “Arizona’s failure to submit

[aggravating factors] to the jury does not constitute structural

error.” Id. at 552 ¶ 44, 65 P.3d at 933. We have been asked to

revisit this question on several occasions and have declined to

do so. See, e.g., State v. Murdaugh, 209 Ariz. 19, 30 ¶ 50, 97

P.3d 844, 855 (2004); State v. Montaño, 206 Ariz. 296, 297 ¶ 3,

77 P.3d 1246, 1247 (2003); State v. Sansing, 206 Ariz. 232, 235

¶ 5, 77 P.3d 30, 33 (2003).

3
Every federal circuit court of appeals has also held that
Apprendi error may be reviewed as trial error. E.g., United
States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003) (“An
Apprendi error is not a ‘defect affecting the framework within
which the trial proceeds,’ but, rather, ‘simply an error in the
trial process itself.’”) (quoting Arizona v. Fulminante, 499
U.S. 279, 310 (1991)); United States v. Friedman, 300 F.3d 111,
127-28 (2d Cir. 2002) (subjecting an alleged Apprendi error to
harmless error review); United States v. Henry, 282 F.3d 242,
252 (3d Cir. 2002) (same); United States v. Strickland, 245 F.3d
368, 379-80 (4th Cir. 2001) (evaluating Apprendi claim under
plain error doctrine); United States v. Matthews, 312 F.3d 652,
665 (5th Cir. 2002) (holding that Apprendi error is susceptible
to harmless error review); United States v. Stewart, 306 F.3d
295, 322-23 (6th Cir. 2002) (same); United States v. Trennell,
290 F.3d 881, 890 (7th Cir. 2002) (holding Apprendi error
harmless); United States v. Frazier, 280 F.3d 835, 855-56 (8th
Cir. 2002) (evaluating Apprendi claim under plain error
doctrine); United States v. Velasco-Heredia, 319 F.3d 1080,
1085-86 (9th Cir. 2003) (applying harmless error analysis);
United States v. Lott, 310 F.3d 1231, 1240 (10th Cir. 2002)
(applying plain error analysis to Apprendi claim); United States
v. Suarez, 313 F.3d 1287, 1293 (11th Cir. 2002) (holding
Apprendi error harmless); United States v. Lafayette, 337 F.3d
1043, 1052 (D.C. Cir. 2003) (same).

8
¶13 Ring III however, considered only the Sixth Amendment

violation caused by submitting factual questions legally

essential to expose a defendant to a maximum sentence to the

wrong factfinder. The aggravating facts used to enhance

Henderson’s sentence were found by a judge instead of by a jury.

As we held in Ring III, that procedure violated Henderson’s

Sixth Amendment right to a jury trial. See 204 Ariz. at 545 ¶

12, 65 P.3d at 926; see also Apprendi, 530 U.S. at 490. In

addition, however, the trial judge here applied a preponderance

standard to find the aggravators, rather than the

constitutionally required standard of beyond a reasonable doubt.

This procedure violated the Fifth Amendment. See, e.g., In re

Winship, 397 U.S. 358, 364 (1970) (holding that Due Process

Clause of the Fifth Amendment puts the burden on the prosecution

to prove all elements of all charges beyond a reasonable doubt).

¶14 Before the court of appeals, Henderson relied

primarily upon Sullivan v. Louisiana, 508 U.S. 275 (1993), in

arguing that the failure to apply the proper standard of proof

to the determination of aggravating factors legally essential to

his punishment constitutes structural error requiring automatic

reversal. In Sullivan, the United States Supreme Court held

that submitting a case to a jury under a constitutionally

deficient reasonable doubt instruction “vitiate[d] all the

jury’s findings” because the jury had returned no verdict of

9
guilty beyond a reasonable doubt. Id. at 281. Because no

actual jury verdict exists in such cases upon which the

harmless-error scrutiny can operate, the Court concluded, the

error “unquestionably qualifies as ‘structural error.’” Id. at

282.

¶15 The defendant in Neder v. United States, 527 U.S. 1

(1999), sought to expand the Sullivan holding to a situation in

which the judge failed to submit one element of the charged

offense to the jury. Neder argued that the failure to submit an

element to the jury “prevent[ed] the jury from rendering a

‘complete verdict’ on every element of the offense” and that the

error therefore could not be reviewed for harmless error under

Federal Rule of Criminal Procedure 52(a). Id. at 11.

Recognizing that part of the analysis in Sullivan appeared to

support Neder’s argument, the Court concluded that “this strand

of the reasoning in Sullivan . . . cannot be squared with our

harmless-error cases.” Id. Citing numerous cases, the Court

held that the absence of a “complete verdict” does not

necessarily preclude application of the harmless-error analysis.

See id. at 11-12 (citing cases). Thus, because “an instruction

that omits an element of the offense does not necessarily render

a criminal trial fundamentally unfair or an unreliable vehicle

for determining guilt or innocence,” id. at 9, the Court applied

a harmless error analysis.

10
¶16 Recently, in Mitchell v. Esparza, 540 U.S. 12 (2003),

the Court reiterated the critical distinction between the errors

considered in Neder and in Sullivan: The error in Sullivan

invalidated all of the jury’s findings, while the error in Neder

impacted only the finding of a single element. Id. at 16.

When, as occurred in Neder, a jury is “precluded from

determining only one element of an offense, . . . harmless-error

review is feasible.” Id.4

¶17 As the court of appeals correctly noted, the Blakely

error in this case much more closely resembles the error in

Neder than that found in Sullivan. Henderson, 209 Ariz. at 309

¶ 29, 100 P.3d at 920. Because a factual finding that is

legally essential to expose a defendant to a maximum sentence

operates as the “functional equivalent of an element,” Apprendi,

530 U.S. at 494 n.19, a judge’s failure to ask a jury to find

aggravating factors beyond a reasonable doubt is equivalent to

the failure to require a jury to find every element of an

offense. Like the errors in Neder and Mitchell, Blakely error

4
Justice Stevens’ dissent to United States v. Booker
similarly recognizes that not all judicial factfinding related
to sentencing violates constitutional guarantees: “[J]udicial
factfinding to support an offense level or an enhancement is
only unconstitutional when that finding raises the sentence
beyond the sentence that could have lawfully been imposed by
reference to facts found by the jury or admitted by the
defendant.” 125 S. Ct. 738, 775 (2005) (Stevens, J., dissenting
in part) (emphasis omitted).

11
does not infect the entire trial process. Therefore, it does

not constitute structural error and may be reviewed using a

trial error analysis. The question remaining is whether a

reviewing court should consider Blakely claims such as that

involved here under a fundamental error or a harmless error

standard.

A.

¶18 Reviewing courts consider alleged trial error under

the harmless error standard when a defendant objects at trial

and thereby preserves an issue for appeal. See State v.

Totress, 107 Ariz. 18, 20, 480 P.2d 668, 670 (1971) (holding

that without claim of error at trial, claim is waived); see also

State v. Hardwick, 183 Ariz. 649, 653, 905 P.2d 1384, 1388 (App.

1995) (holding that because trial court incorrectly allowed

inadmissible evidence over objection, review was for harmless

error). Harmless error review places the burden on the state to

prove beyond a reasonable doubt that the error did not

contribute to or affect the verdict or sentence. See State v.

Bible, 175 Ariz. 549, 588, 858 P.2d, 1152, 1191 (1993).

¶19 Fundamental error review, in contrast, applies when a

defendant fails to object to alleged trial error. Id. at 572,

858 P.2d at 1175 (holding that only fundamental error may be

raised for the first time on appeal). The scope of review for

fundamental error is limited. A defendant who fails to object

12
at trial forfeits the right to obtain appellate relief except in

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.” Hunter, 142

Ariz. at 90, 688 P.2d at 982; see also State v. Gendron, 168

Ariz. 153, 155, 812 P.2d 626, 628 (1991) (holding that

fundamental error is that which is “clear, egregious and curable

only via a new trial”). In addition, we place the burden of

persuasion in fundamental error review on the defendant. We

impose this additional limitation upon obtaining relief for

fundamental error to discourage a defendant from “tak[ing] his

chances on a favorable verdict, reserving the ‘hole card’ of a

later appeal on [a] matter that was curable at trial, and then

seek[ing] appellate reversal.” State v. Valdez, 160 Ariz. 9,

13-14, 770 P.2d 313, 317-18 (1989).

¶20 To prevail under this standard of review, a defendant

must establish both that fundamental error exists and that the

error in his case caused him prejudice. See Gendron, 168 Ariz.

at 155, 812 P.2d at 628; see also Hunter, 142 Ariz. at 90, 688

P.2d at 982 (holding that defendant must prove fundamental error

exists, and is of such magnitude that he could not have received

a fair trial); State v. King, 158 Ariz. 419, 424, 763 P.2d 239,

244 (1988) (holding that after determining that error occurred,

13
a court must evaluate the prejudicial nature of the error). Our

requirements for establishing a right to relief for fundamental

error are not unique. Other jurisdictions that apply

fundamental error review also have held that a defendant must

establish prejudice to qualify for relief under that standard of

review. See, e.g., Reed v. State, 837 So. 2d 366, 370 (Fla.

2002) (holding that for error to be fundamental it must follow

that the error prejudiced the defendant); Corcoran v. State, 739

N.E.2d 649, 655 (Ind. 2000) (holding that for fundamental error

to exist, court “must find that [the error] so prejudiced the

defendant’s rights as to make a fair trial impossible.”); In re

Harris, 671 A.2d 1278, 1279 (Vt. 1995) (holding that petitioner

must establish fundamental error and that such error prejudiced

him to prevail).

¶21 We note that prior appellate decisions have not

consistently described the showing necessary to establish

fundamental error. Compare King, 158 Ariz. at 424, 763 P.2d at

244 (holding that error is fundamental if it may have

contributed to the verdict), with State v. Thomas, 130 Ariz.

432, 436, 636 P.2d 1214, 1218 (1981) (holding that error is not

fundamental if it did not “contribute significantly” to the

verdict). Our decision in Ring III also may have contributed to

the confusion on this issue. In that decision, this Court and

counsel agreed that we should address a number of issues,

14
including whether we should review Ring II error as structural

or harmless error. Ring III, 204 Ariz. at 544 ¶ 6, 552 ¶ 44, 65

P.3d at 925, 933. The parties did not brief, and this Court did

not consider, whether we should apply the fundamental error

standard rather than the harmless error standard. We granted

review in this case in part to dispel any confusion created by

prior decisions. To the extent that any prior decisions are

inconsistent with today’s holding, we disapprove of them.

¶22 We review the Blakely error that occurred here under a

fundamental error standard because Henderson did not object at

trial. Hence, Henderson, not the State, bears the burden of

establishing both that fundamental error occurred and that the

error caused him prejudice.

III.

A.

¶23 To obtain relief under the fundamental error standard

of review, Henderson must first prove error. As previously

noted, the State concedes that Apprendi/Blakely error occurred.

¶24 Because the parties concede that error occurred, we

next consider whether this error was fundamental. To establish

fundamental error, Henderson must show that the error complained

of goes to the foundation of his case, takes away a right that

is essential to his defense, and is of such magnitude that he

15
could not have received a fair trial. Hunter, 142 Ariz. at 90,

688 P.2d at 982.

¶25 In this case, as previously noted, error exists on two

levels. First, the aggravating facts used to enhance

Henderson’s sentence were found by a judge instead of a jury,

violating Henderson’s Sixth Amendment right to a jury trial.

See Apprendi, 530 U.S. at 490. In addition, the trial judge

applied a preponderance standard, not the constitutionally

required standard of beyond a reasonable doubt, violating

Henderson’s Fifth Amendment rights. See Winship, 397 U.S. at

364. We have found similar error to constitute fundamental

error. See, e.g., Hunter, 142 Ariz. at 90, 688 P.2d at 982

(1984) (holding that improper burden shifting to a defendant

constitutes fundamental error); State v. Johnson, 173 Ariz. 274,

276, 842 P.2d 1287, 1289 (1992) (same). Indeed, it is difficult

to conceive that use of a procedure that denied rights

guaranteed both by the Fifth and by the Sixth Amendments to the

United States Constitution could be other than fundamental

error. Because the sentencing procedure followed denied

Henderson the right to have certain facts decided by a jury

beyond a reasonable doubt, we conclude that the procedure

utilized went to the foundation of Henderson’s case. We

therefore hold that fundamental error occurred.

16
 B.

¶26 Having shown that fundamental error occurred,

Henderson must demonstrate that the error caused him prejudice.

Fundamental error review involves a fact-intensive inquiry, and

the showing required to establish prejudice therefore differs

from case to case. Bible, 175 Ariz. at 572, 858 P.2d at 1175;

see also State v. Allen, 157 Ariz. 165, 171-72, 755 P.2d 1153,

1159-60 (1988). The showing a defendant must make varies,

depending upon the type of error that occurred and the facts of

a particular case. See State v. Dann, 205 Ariz. 557, 572 ¶ 57,

74 P.3d 231, 246 (2003) (holding that defendant claiming error

in being excluded from pretrial conferences must establish a

right to attend those conferences and show his trial was

prejudiced through his absence); Bible, 175 Ariz. at 572, 858

P.2d at 1175 (holding that in a case in which voir dire error is

claimed, defendant must show how court should have conducted

voir dire and how absence of such procedure prejudiced him);

Hunter, 142 Ariz. at 90, 688 P.2d at 982 (holding that defendant

must demonstrate how faulty jury instruction prejudiced him).

¶27 Because the nature of the error involved here deprived

Henderson of the opportunity to require that a jury find facts

sufficient to expose him to an aggravated sentence, Henderson

must show that a reasonable jury, applying the appropriate

17
standard of proof, could have reached a different result than

did the trial judge.

¶28 Whether a defendant can make that showing depends upon

the facts of his particular case. In some cases, no Blakely

error will have occurred because the factual finding or findings

necessary to expose a defendant to an aggravated sentence will

fall outside the Apprendi/Blakely analysis, will be implicit in

the jury verdict, or will have been admitted by the defendant.

In other cases, no Blakely error will occur because a jury,

applying the beyond a reasonable doubt standard, will find those

facts legally essential to expose a defendant to a defined

sentencing range. The Sixth Amendment then allows a judge to

find additional facts by a preponderance of the evidence, as

long as the sentence imposed does not fall outside the

statutorily prescribed sentencing range. State v. Martinez, ___

Ariz. ___ ¶¶ 26-27, ___ P.3d ___ (2005). In this case, some of

the statutory aggravators legally essential to Henderson’s

punishment were found by the trial court. We review for

fundamental error to determine whether a reasonable jury,

applying the correct standard of proof, could have failed to

find the existence of each aggravator. If we find that a

reasonable jury applying the correct standard of proof could

have reached a different conclusion than did the trial judge as

to any or all aggravators, we must then consider whether at

18
least two aggravators not subject to such a conclusion remain to

sustain the defendant’s super-aggravated sentence. See A.R.S. §

13-702.01 (requiring finding of two substantial aggravators for

super-aggravated sentence). If not, the defendant has made an

adequate showing of prejudice.

¶29 We consider the C.1 and C.9 aggravators together, as

did the court of appeals. Henderson, 209 Ariz. at 311 ¶ 37, 100

P.3d at 922. Section C.1 requires infliction or threatened

infliction of serious physical injury, and C.9 assumes physical

and emotional harm caused to the victim.

¶30 The fact that the jury found Henderson not guilty of

kidnapping under A.R.S. § 13-1304 strongly supports his argument

that a jury could have reached a different conclusion as to

these aggravators than did the judge. The difference between

the kidnapping charge and unlawful imprisonment, A.R.S. § 13-

1303, the lesser charge of which the jury convicted Henderson,

is that the jury could have convicted Henderson of kidnapping

only if it found, beyond a reasonable doubt, that Henderson

intended to inflict serious injury upon his victim. See A.R.S.

§ 13-1304.A.3. Unlawful imprisonment, in contrast, does not

include violence as an element. By convicting Henderson of

unlawful imprisonment rather than kidnapping, the jury arguably

distinguished between the crimes on the basis of violence, the

only element the two crimes do not share.

19
¶31 In aggravating Henderson’s sentence for unlawful

imprisonment, however, the trial judge found that the crime was

of a violent nature and that the victim suffered trauma and

injuries. Blakely involved a similar circumstance. There, the

defendant pled guilty to second-degree kidnapping. 542 U.S. at

___, 124 S. Ct. at 2534. The trial judge then found that the

defendant had acted with deliberate cruelty and aggravated his

sentence. Id. at ___, 124 S. Ct. at 2535-36. The Supreme Court

noted that the aggravating factor of deliberate cruelty was

essentially the same as the element that separated second-degree

kidnapping from first-degree kidnapping, the charge that the

defendant pled guilty to avoid. Id. at ___, 124 S. Ct. at 2539.

Thus, Blakely was exposed to the sentence for which he would

have been eligible had the jury actually convicted him of the

greater crime. Id.

¶32 A similar situation occurred here. By finding the

presence of the C.1 and C.9 aggravators, the trial judge made a

finding at least arguably contrary to the facts found by the

jury. Given the jury’s failure to convict Henderson of

kidnapping, we conclude that a reasonable jury, applying the

correct burden of proof of beyond a reasonable doubt, could have

found differently than did the trial judge as to the C.1 and C.9

aggravators.

20
¶33 The trial judge also found the existence of a third

aggravating factor listed in section 13-702, that Henderson’s

victim was over the age of sixty-five. A.R.S. § 13-702.C.13.

This fact was not disputed; no reasonable jury could have failed

to find the existence of this aggravator beyond a reasonable

doubt.

¶34 Section 13-702.01, however, requires that a trial

judge find the existence of at least two substantial aggravators

under section 13-702.C. Because the victim’s age, by itself,

could not expose Henderson to the super-aggravated sentence of

section 13-702.01, Henderson has demonstrated that the

fundamental error in his case caused him prejudice.

¶35 Normally, in such a situation, we would remand this

case to the superior court for re-sentencing. Because

Henderson has been released from prison and has finished his

term of community supervision, however, remand is no longer

appropriate.

IV.

¶36 For the foregoing reasons, the opinion of the court of

appeals is vacated in part and affirmed in part. The superior

21
court conviction is affirmed.

_______________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

__________________________________
Rebecca White Berch, Vice Chief Justice

________________________________________
Michael D. Ryan, Justice

________________________________________
Andrew D. Hurwitz, Justice

________________________________________
Charles E. Jones, Justice (Retired)

H U R W I T Z, Justice, concurring

¶37 Were we writing on a clean slate, I would conclude

that all Apprendi error is structural, for the reasons explained

by Justices Jones and Feldman in their separate opinions in Ring

III and its progeny. See, e.g., State v. Ring, 204 Ariz. 534,

565-67 ¶¶ 105-114, 65 P.3d 915, 946-48 (2003) (“Ring III”)

(Feldman, J., concurring in part, dissenting in part); State v.

Sansing, 206 Ariz. 232, 241-42 ¶¶ 40-46, 77 P.3d 30, 39-40

(2003) (Jones, C.J., dissenting); State v. Armstrong, 208 Ariz.

360, 366-68 ¶¶ 25-37, 93 P.3d 1076, 1082-84 (2004) (Jones, C.J.,

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concurring in part, dissenting in part). But this Court

resolved that issue to the contrary in Ring III.5 Moreover, the

Supreme Court of the United States, although in a different

factual context, arguably has reached the same conclusion,

stating that “[w]here the jury was precluded from determining

only one element of an offense . . . harmless-error review is

feasible.” Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

Therefore, albeit not without reservations, I join that portion

of the Court’s opinion concluding that Blakely error is not

structural.

¶38 I join the balance of the Court’s opinion

unreservedly. It is perhaps worth noting, however, that the

fundamental error test for prejudice we adopt today — whether

any reasonable jury could have disagreed about the presence of

an aggravating factor, see supra ¶ 27 — is for practical

purposes no different than the harmless error test adopted in

Ring III. See Armstrong, 208 Ariz. at 362 ¶ 6, 93 P.3d at 1078

(“[J]udicial fact-finding . . . may constitute harmless error if

5
As the Court correctly notes, see supra ¶ 13, there is a
difference between Ring error and Blakely error. Ring error
involves a deprivation only of Sixth Amendment rights; Blakely
error violates both the Fifth and Sixth Amendments. See id.
Nonetheless, given the holding in Ring III that the denial of a
defendant’s right to a jury finding of aggravating factors can
be harmless in a case in which a defendant is sentenced to
death, it would beggar reason to arrive at a different
conclusion when the consequence of the judge’s factual finding
is merely an additional term of years.

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we can conclude beyond a reasonable doubt that no reasonable

jury would fail to find the aggravating circumstance.”) (citing

Ring III, 204 Ariz. at 555, 565 ¶¶ 53, 103, 65 P.3d at 936,

946).

¶39 The major conceptual difference is that under

fundamental error analysis, the defendant bears the burden of

proving prejudice, while under harmless error analysis, the

burden is on the State.6 In practice, however, because a

reviewing appellate court will virtually never be in equipoise

about the issue, the burden of proof is of little consequence.

In both instances, the reviewing court’s analysis will be

substantively identical — it must determine whether a reasonable

jury could have concluded differently than the sentencing judge

as to the relevant aggravating factor. As the Court

convincingly demonstrates, a reasonable jury could have reached

6
An appellate court may find fundamental error even if the
issue is not raised on appeal by a defendant. See United States
v. Atkinson, 297 U.S. 157, 160 (1936) (“In exceptional
circumstances, especially in criminal cases, appellate courts,
in the public interest, may, of their own motion, notice errors
to which no exception has been taken, if the errors are obvious,
or if they otherwise seriously affect the fairness, integrity,
or public reputation of judicial proceedings.”); State v. Curry,
187 Ariz. 623, 626-27, 931 P.2d 1133, 1136-37 (App. 1996)
(citing Atkinson); State v. Taylor, 187 Ariz. 567, 571-72, 931
P.2d 1077, 1081-82 (App. 1996) (same). In such cases, it is
somewhat misleading to speak of burden of proof. In cases where
there is any doubt as to whether an error not addressed in the
defendant’s brief is prejudicial, an appellate court raising the
issue sua sponte should ask for supplemental briefing, thus
allowing the defendant to discharge the burden the Court today
identifies.

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a different conclusion than the sentencing judge in the case

before us, and Henderson has therefore demonstrated the

prejudice required to establish fundamental error.

Andrew D. Hurwitz, Justice

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