Concurring.
¶ 26 I concur with the majority.
¶27 In State v. Martinez, 209 Ariz. 280, 100 P.3d 30 (A00 2004), I concurred with the determination that if there was an aggravating factor implicit in the jury’s verdict, and the trial court considered other factors, Blakely was satisfied.
*100¶ 28 In that capital murder case, the jury found Martinez guilty of brutal murder of Mabel Lopez by multiple stab wounds, but did not find any aggravating factors to warrant the death penalty. The trial court, after listing aggravating factors that were not found by the jury, imposed aggravated sentences on the ancillary crimes of burglary and theft.
¶ 29 Now, having wrestled with the issue, I have come to the conclusion that in the eases that were still on appeal when Blakely was published, where we are trying to discern whether the Sixth Amendment was violated at the time of the conviction and sentence, the better analysis is the harmless error analysis articulated in State v. Munninger, 209 Ariz. at 478-79, ¶ 13, 104 P.3d at 209-10. It states that:
“[t]he failure to submit an aggravating factor to the jury may be harmless when ‘no reasonable jury could find that the state failed to prove the ... factor beyond a reasonable doubt.’
No reversible error occurs when the evidence ‘overwhelmingly establishes’ the factor, the defendant stipulated to the facts constituting the aggravating circumstance, or the fact is implicit in the jury’s verdict of guilt.”
Id. (internal citations omitted)
¶ 30 The analysis recognizes that the trial courts were following established law and procedural rules existing before Blakely and, wherever possible, allows us to affirm the sentence if the evidence supports the aggravating factors and we can say that the trial court would have imposed the same sentence under Blakely. If, however, the analysis demonstrates that the evidence used to support the aggravating factor evidence was not overwhelming and there is some question about whether- it could be found beyond a reasonable doubt, then the case should be remanded so the trial court can resentence a defendant mindful of Blakely.
¶ 31 In Martinez, using the harmless error analysis, I could state that the trial evidence overwhelmingly established that there was an accomplice, that a knife was used, that the severe injuries that resulted in Ms. Lopez’s death were emotionally and physically painful, that it was a brutal crime. I do not believe that the trial court could find that the crime was committed for pecuniary gain, since the jury had rejected that aggravating factor. Based on the totality of the evidence, the trial court would have imposed the same aggravated sentence for the burglary and theft.
¶ 32 Here, Pitre’s prior convictions are Blakely-compliant.7 However, the other aggravating factors need to be analyzed in light of the harmless error doctrine. The gratuitous use of violence factor, was not found by the jury. The trial court indicated on the record that he may have misspoken when talking about the nature of the violence and whether appellant had struck one of the victims with a gun. If the trial judge is mistaken about the factor, it undermines any notion that the evidence is overwhelming.
¶ 33 Consequently, based on the harmless error analysis, I concur that the sentence needs to be vacated and the matter remanded for resentencing.
. If the trial court had only considered Pitre’s prior convictions, he could have imposed the same sentence.