State v. Cleere

ESPINOSA, Judge,

dissenting in part.

¶ 19 I concur in the denial of relief on Cleere’s petition for review and the rejection of his legal argument relating to the trial court’s ability to cite the victim’s physical injury as an aggravating factor under A.R.S. § 13-702(0(1). I dissent, however, from that portion of the decision that concludes any Blakely error occurred here. I would find no such error and, therefore, no need for the ease to be remanded for resentencing. As the decision correctly concludes, any reasonable jury would have found that Cleere’s offense caused serious physical injury to the victim.9 More importantly, Cleere expressly admitted that fact and certainly does not contest it. At the change-of-plea hearing, Cleere’s attorney stated the factual basis on his behalf, including that “[he] did use a sharp instrument to cut the throat of [the victim] intending that that injury be a mortal wound.” The court then directly questioned Cleere, who affirmed that he had heard the factual basis, agreed with it, and acknowledged he had done “those things.” The trial court also recited all of the constitutional rights, including the right to a trial by jury, Cleere was giving up by pleading guilty. Cleere expressly stated he understood all of those rights and confirmed he had read and understood the plea agreement.

¶ 20 If Cleere’s factual admission is a sufficient basis for both a finding of guilt and a judgment of conviction for attempted murder, a fortiori, it should be sufficient for purposes of sentencing aggravation. Indeed, our supreme court has stated, “In cases in which a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, we will regard that factor as established.” State v. Ring, 204 Ariz. 534, ¶ 93, 65 P.3d 915, 944 (2003); see also State v. Finch, 205 Ariz. 170, 68 P.3d 123 (2003) (defendant’s admission that he had shot victim to prevent his reporting the robbery fully established pecuniary gain motive); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App.2004) (defendant’s trial testimony constituted “facts ‘admitted by the defendant’ ” for purposes of sentence aggravation comporting with Blakely); Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind.Ct.App.2004) (defendant’s statements at sentencing were facts admitted by him and were “exempt from the Apprendi/Blakely rule”); cf. State v. Montaño, 206 Ariz. 296, 77 P.3d 1246 (2003) (defendant’s introduction of mitigation evidence relating to prisoner status was admission of in-custody status for sentence aggravation). Accordingly, Cleere’s express admission that he had seriously injured the victim by intentionally cutting her *218throat with a sharp instrument constitutes an aggravating circumstance not infected with any Blakely error.

¶21 Furthermore, that Stofceii/-compliant aggravating factor authorized the expanded sentencing range under A.R.S. § 13-702(C)(1) and permitted the trial court to impose a sentence anywhere within the statutory range, regardless of other aggravating factors. See State v. Chiappetta, 210 Ariz. 40, 107 P.3d 366 (App.2005) (Espinosa, J.); State v. Estrada, 210 Ariz. 111, 108 P.3d 261 (Ct.App.2005); State v. Martinez, 209 Ariz. 280, 100 P.3d 30 (App.2004); cf. United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (judicial sentence enhancements acceptable if resulting sentence is within authorized range). Accordingly, I would deny relief not only on Cleere’s petition for review but also on the supplemental Blakely issues he raises.

. Contrary to Judge Florez’s view, both divisions of this court have concluded that Blakely error is subject to harmless error review. See Henderson, 209 Ariz. 300, 100 P.3d 911 (App.2004); Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App.2004).