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.,
22
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.
23
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.
24
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
25