SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0435-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 04-0508
JACOB PRICE, )
) Maricopa County
Appellant. ) Superior Court
) No. CR 2002-017550
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Gregory H. Martin, Judge
VACATED IN PART AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
213 Ariz. 550, 145 P.3d 647 (2006)
VACATED IN PART
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Nicholas D. Acedo, Assistant Attorney General
Attorneys for State of Arizona
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Jacob Price
________________________________________________________________
B A L E S, Justice
¶ 1 We accepted review to determine whether the
defendant’s sentence was aggravated in violation of Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington,
542 U.S. 296, 305 (2004), which hold that the Sixth Amendment
affords a right to have a jury, rather than a judge, determine
any fact, other than a prior conviction, that increases a
defendant’s statutory maximum sentence. The trial court imposed
an aggravated sentence based on facts that the State now
concedes were not found in compliance with Apprendi and Blakely.
We hold that the case must be remanded for resentencing and
reject the State’s suggestion that, as a reviewing court, we
should find other aggravating facts to uphold the flawed
sentence.
I.
¶ 2 In August 2001, while driving an SUV, Jacob Price
fired a gun at a car. After a police pursuit, Price escaped on
foot. Police seized a handgun and methamphetamine from Price’s
vehicle and later arrested him. A jury convicted him on six
counts, including one count of drive-by shooting, Ariz. Rev.
Stat. (“A.R.S.”) § 13-1209 (2001), a class two felony; three
counts of aggravated assault of passengers in the car, A.R.S. §
13-1204 (2001), class three felonies; and two other counts for
class four felonies.
¶ 3 The drive-by shooting count and the aggravated assault
counts involved the discharge of a deadly weapon and thus
subjected Price to enhanced sentencing ranges for dangerous
2
felonies. See A.R.S. § 13-604(I) (2001).1 Under A.R.S. § 13-
702(C) (2001), Price’s sentences were also subject to
aggravation beyond their presumptive terms if there existed
certain enumerated factors, such as the “presence of an
accomplice,” A.R.S. § 13-702(C)(4), or “the defendant was
previously convicted of a felony within the ten years
immediately preceding the date of the offense,” A.R.S. § 13-
702(C)(11). The statute, which has since been amended, also
included a “catch-all” provision allowing aggravation based on
“[a]ny other factor the court deems appropriate to the ends of
justice.” A.R.S. § 13-702(C)(18).
¶ 4 The trial court aggravated Price’s sentences for the
four dangerous felonies and imposed sentences totaling thirty-
one years.2 In aggravation the court found that Price was a
“danger to the community and that he was by a preponderance of
the evidence” guilty of an unrelated homicide for which he had
1
The class two dangerous felony had a presumptive term of ten
and one-half years and a maximum term of twenty-one years.
A.R.S. § 13-604(I). The class three dangerous felonies each had
presumptive terms of seven and one-half years and maximum terms
of fifteen years. Id.
2
The trial court imposed a fifteen-year sentence for the class
two dangerous felony and eight-year sentences for each of the
class three dangerous felonies. The sentences for one of the
class three felonies and both of the class four felonies were
concurrent with the sentence for the class two felony.
3
been acquitted by a jury. Although the court did not identify
the statutory basis for these aggravating factors, they can only
be based on the “catch-all” provision, A.R.S. § 13-702(C)(18),
because neither is an enumerated aggravator.3
¶ 5 The trial court’s belief that Price had committed the
unrelated homicide significantly influenced the sentencing.
When Price objected to the court’s considering conduct for which
he had been acquitted, the judge said that if the law barred him
from relying on the homicide, he would be inclined to sentence
Price differently. Price did not, however, object to the judge,
rather than a jury, finding the aggravating facts.
¶ 6 On appeal, Price argued that his sentence was
aggravated beyond the presumptive term in violation of the
Apprendi/Blakely rule. The court of appeals affirmed the
sentence but relied on a different rationale than had the trial
court. Reviewing Price’s judicial record, which did not include
any prior felony that would qualify as an enumerated aggravator
under A.R.S. § 13-702(C)(11), but did include juvenile
adjudications, the court of appeals concluded that the record
“necessarily connotes” and the trial court thus properly found
3
A trial court should identify the statutory authority for each
aggravating circumstance. See State v. Anderson, 211 Ariz. 59,
60 ¶ 4 n.1, 116 P.3d 1219, 1220 n.1 (2005) (“In order to
facilitate appellate review, trial judges should indicate on the
record the specific statutory subsection under which a criminal
sentence is imposed.”).
4
that Price was a danger to the community. State v. Price, 213
Ariz. 550, 553 ¶¶ 11-12, 145 P.3d 647, 650 (App. 2006).
¶ 7 After we granted review, the State conceded that it
was error to aggravate Price’s sentence based only on the non-
jury determinations that Price had committed the unrelated
homicide and was a danger to the community. Nonetheless, the
State urges this Court to hold that Price’s juvenile
adjudications fall within the Apprendi prior conviction
exception and that they exposed Price to an aggravated sentence.
II.
¶ 8 The Sixth Amendment requires that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. In Arizona, “the statutory maximum
sentence for Apprendi purposes in a case in which no aggravating
factors have been proved to a jury beyond a reasonable doubt is
the presumptive sentence established” by statute. State v.
Martinez, 210 Ariz. 578, 583 ¶ 17, 115 P.3d 618, 623 (2005).
See Blakely, 542 U.S. at 303 (“[T]he ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” (emphasis in original)).
¶ 9 Based on the jury verdict alone, Price faced maximum
5
sentences of ten and one-half years for the class two felony and
seven and one-half years for each of the class three felonies.
See A.R.S. § 13-604(I). Thus, unless some aggravating factor
constitutionally authorized an increase in Price’s maximum
sentence, the judge erred when he sentenced Price to aggravated
sentences of fifteen years for the class two felony and eight
years each for the class three felonies.
¶ 10 There are three ways an aggravating factor can
constitutionally increase a maximum sentence. A jury can find
the aggravating factor beyond a reasonable doubt. Apprendi, 530
U.S. at 490. The defendant can waive his Apprendi rights by
stipulating to “the relevant facts or consent[ing] to judicial
factfinding.” Blakely, 542 U.S. at 310. Finally, either the
judge or the jury can find “the fact of a prior conviction.”
Apprendi, 530 U.S. at 490.
A.
¶ 11 In this case, the jury did not find and Price did not
admit any of the aggravating factors that subjected him to a
sentence above the statutory presumptive sentence. As the State
now concedes, the trial court erred when it increased Price’s
sentence based on the judge’s findings that Price had committed
an unrelated homicide and was a danger to the community.
¶ 12 The United States Supreme Court’s recent opinion in
Cunningham v. California makes the error clear. 549 U.S. __,
6
127 S. Ct. 856 (2007). There, the trial court aggravated
Cunningham’s sentence based upon, among other things, his
“violent conduct, which indicated a serious danger to the
community.” 127 S. Ct. at 860. The Court held that
California’s sentencing law unconstitutionally allowed “the
judge, not the jury, to find facts permitting an upper term
sentence.” Id. at 871. The Court rejected the idea that there
is a Sixth Amendment “distinction between facts concerning the
offense, where Apprendi would apply, and facts concerning the
offender, where it would not.” 127 S. Ct. at 869 n.14.
¶ 13 The court of appeals believed that a finding of
“danger to the community” could be made by the court under the
prior conviction exception if the finding was inherent in the
defendant’s criminal record, including juvenile adjudications.
Price, 213 Ariz. at 553 ¶¶ 11-12, 145 P.3d at 650. Such
reasoning, however, is foreclosed by the Supreme Court’s
subsequent decision in Cunningham. Even if a court could
conclude from Price’s judicial record that he is a danger to the
community, this fact “concerning the offender,” 127 S. Ct. at
869 n.14, cannot expose Price to an increased sentence unless it
is submitted to a jury and proved beyond a reasonable doubt.
B.
¶ 14 While now conceding error with respect to the trial
court’s finding of aggravating factors based on danger to the
7
community and the unrelated homicide, the State nevertheless
asks this Court to search the record for facts establishing a
different Apprendi-compliant aggravating circumstance.
¶ 15 If there is one Apprendi-compliant aggravating factor,
“a defendant is exposed to a sentencing range that extends to
the maximum punishment available under section 13-702.”
Martinez, 210 Ariz. at 584 ¶ 21, 115 P.3d at 624. Once such a
factor is properly found – by the jury, based on a defendant’s
admission, or, for a prior conviction, by the court or the jury
– “the Sixth Amendment permits the sentencing judge to find and
consider additional factors relevant to the imposition of a
sentence up to the maximum prescribed in that statute.” Id. at
585 ¶ 26, 115 P.3d at 625.
¶ 16 The trial court did not rely on any other factors to
aggravate Price’s sentence. During sentencing, the trial court
remarked that Price had a juvenile record that “was not the
best” but expressly disclaimed considering that record as
aggravating. The State argues that the court’s reference to
Price’s juvenile record represents a “finding” that Price’s
juvenile adjudications exist for purposes of the “catch-all”
provision, A.R.S. § 13-702(C)(18), and that Apprendi’s prior
conviction exception allows a judge, rather than a jury, to find
the “fact” of juvenile adjudications. Thus, the State argues,
the finding of the juvenile adjudications exposed Price to the
8
aggravated term, giving the judge discretion to find and rely on
other aggravating circumstances, such as Price’s dangerousness,
in determining a sentence within the increased term.
¶ 17 The State’s arguments are not persuasive. Contrary to
the State’s suggestion, the trial court’s comment that Price had
a juvenile record is not, by any stretch, a finding that
juvenile adjudications should serve as an aggravating factor.
Cf. A.R.S. § 13-702(B) (noting that upper term sentence “may be
imposed only if the circumstances alleged to be in aggravation
. . . are found to be true by the trial judge . . . and factual
findings and reasons in support of such findings are set forth
on the record at the time of sentencing."). In effect, the
State suggests that even though the fact-finder did not validly
find any aggravating factor that exposed a defendant to an
aggravated sentence, a sentence should be upheld if an appellate
court could find in the record some aggravating factor that
could expose the defendant to a greater sentence and thus allow
the sentencing judge to consider other facts not found by the
jury in imposing a sentence within the higher range.
¶ 18 The State misapprehends the role of a reviewing court
in non-capital criminal sentencing. When a trial court
improperly relies on an aggravating factor in violation of
Apprendi and Blakely to subject a defendant to an increased
maximum sentence, a reviewing court should not assume the role
9
of a sentencing judge and seek out new aggravating
circumstances, not found below, to save the constitutionally
flawed sentence.
¶ 19 Furthermore, to embrace the State’s argument would
require us to address several important issues that are
unnecessary to resolve the case before us. The State assumes
that Arizona’s sentencing scheme permits the use of juvenile
adjudications as an aggravating factor in adult sentencing and
that juvenile adjudications fall within the Apprendi prior
conviction exception. These propositions are far from
established. Compare United States v. Tighe, 266 F.3d 1187,
1194 (9th Cir. 2001) (holding that the prior conviction
exception should not extend to non-jury juvenile adjudications),
with United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003)
(holding that a non-jury “juvenile adjudication that . . .
afforded all constitutionally-required procedural safeguards can
properly be characterized as a prior conviction for Apprendi
purposes”). The State also assumes that an unenumerated
aggravating circumstance under the “catch-all” provision in
A.R.S. § 13-702(C)(18) can by itself authorize an increase in a
defendant’s maximum sentence consistent with due process and the
Sixth Amendment jury-trial right. Cf. State v. Gomez, 211 Ariz.
494, 502 ¶ 36 n.8, 123 P.3d 1131, 1139 n.8 (2005) (declining to
address constitutionality of finding aggravators not specified
10
in the sentencing statute because defendant did not raise the
issue); State v. Glassel, 211 Ariz. 33, 57 ¶ 103 n.18, 116 P.3d
1193, 1217 n.18 (2005) (same). We decline to prematurely
address these issues here.
III.
¶ 20 Because Price did not object in the trial court to the
judge finding facts necessary to increase his sentence, he
cannot obtain relief unless he shows “both that fundamental
error occurred and that the error caused him prejudice.” State
v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115 P.3d 601, 608 (2005).
¶ 21 By itself making the finding that Price was a danger
to the community, the trial court denied Price “the right to
have certain facts decided by a jury beyond a reasonable doubt,”
in violation of the Fifth and Sixth Amendments to the United
States Constitution. Id. ¶ 25. Because this unconstitutional
procedure “went to the foundation of [Price’s] case,” id., there
was fundamental error, even if we assume that that the “catch-
all” provision can ever serve as the aggravator that qualifies a
defendant for a higher statutory maximum sentence.
¶ 22 Price must also show that this error prejudiced him.
Prejudice in these circumstances turns on “whether a reasonable
jury, applying the correct standard of proof, could have failed
to find the existence of each aggravator.” Id. ¶ 28. The trial
judge found that Price was a danger to the community largely
11
because he believed that Price had committed the separate
homicide. We are not convinced that a reasonable jury would
have necessarily concluded that Price committed this homicide
(indeed, a jury previously acquitted him for that offense) or,
independent of that killing, was a danger to the community. The
judge, as noted above, said that absent his finding regarding
the homicide, he probably would have sentenced Price
differently. Price has established prejudicial error.
IV.
¶ 23 For the foregoing reasons, we affirm the convictions,
vacate the opinion of the court of appeals in part, vacate the
sentence, and remand to the trial court for resentencing.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
12
H U R W I T Z, Justice, concurring
¶ 24 The Court today correctly remands this case for
resentencing. I join in its opinion without reservation. I
write briefly to address a question that the Court pretermits,
see Op. ¶ 19 – whether a court can constitutionally employ only
an unenumerated aggravating circumstance under the “catch-all”
provision in former A.R.S. § 13-702 (C) (18) (2001)4 to impose a
sentence in excess of the statutory presumptive term.
¶ 25 When an aggravating circumstance subjects a defendant
to a sentence greater than one that could have been imposed
because of the jury verdict alone, that circumstance is “the
functional equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict.” Apprendi v. New
Jersey, 530 U.S. 466, 494 n.19 (2000); see also id. at 501
(Thomas, J., concurring) (“The aggravating factor is an element
of the aggravated crime.”). Apprendi and its progeny teach
that, with certain exceptions not relevant to this case, the
Sixth Amendment requires that a jury find this additional
element.
¶ 26 Price raised only Sixth Amendment arguments on appeal
and the Court’s opinion thus appropriately turns only on the
4
The “catch-all” provision has been amended and renumbered
as A.R.S. § 13-702 (C)(24) (Supp. 2007-08). For the reasons
explained below, the concerns expressed in this concurrence
apply equally to the amended provision.
13
denial of a right to jury trial. But even when a jury trial is
afforded, a serious Fourteenth Amendment due process problem is
presented if the “catch-all” is the only factor that makes a
defendant eligible for a sentence beyond the presumptive term.
In that situation, one of the elements of the aggravated crime
under former A.R.S. § 13-702(C)(18) is effectively “[a]ny other
factor the court deems appropriate to the ends of justice.”
Under the current “catch-all,” A.R.S. § 13-702 (C)(24), the
“functional element” of the aggravated crime in such a case is
“[a]ny other factor that the state alleges is relevant to the
defendant’s character, background or to the nature or the
circumstances of the offense.”
¶ 27 A defendant has no notice, in advance of the conduct
that exposes him to jeopardy for the “aggravated crime,” of
precisely what is proscribed under the critical “catch-all”
element. It is as if the criminal code had one punishment for
theft, and another for aggravated theft, the former consisting
of theft simpliciter and the latter consisting of the elements
of the theft plus “anything else the court or the state may
someday later find relevant.”
¶ 28 A statute that fails to provide fair notice of
precisely what acts are forbidden “violates the first essential
of due process of law.” Connally v. General Constr. Co., 269
U.S. 385, 391 (1926). When criminal penalties are at issue,
14
“[a]ll are entitled to be informed as to what the State commands
or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
Moreover, by failing to provide an explicit standard for a
sentencing judge, the “catch-all” element would also seem to
offend due process by allowing for arbitrary and discriminatory
enforcement. See Smith v. Goguen, 415 U.S. 566, 575 (1974)
(“Statutory language of such a standardless sweep allows
policemen, prosecutors, and juries to pursue their personal
predilections.”); Grayned v. City of Rockford, 408 U.S. 104,
108-09 (1972) (“A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad
hoc and subjective basis . . . .”).
¶ 29 It is difficult for me to see how an element of a
crime as loosely defined as the “catch-all” aggravator can
satisfy these basic elements of due process when used as the
only “functional element of a greater offense.”5 However,
5
The due process problem I address is not presented when a
clearly enumerated aggravator is found and the sentencing court
also considers items falling under the “catch-all” in arriving
at the sentence. In that circumstance, the “aggravated crime”
consists of the statutory elements of the underlying offense
plus the enumerated aggravator. Because the defendant is
exposed to the greater sentence because of the enumerated
aggravator, the “catch-all” in such a circumstance is simply a
sentencing factor relevant to the judge’s discretion in deciding
what sentence to impose within the constitutionally authorized
range, not a functional element of the “aggravated crime.” See
15
because Price did not raise this issue on appeal (and the State
therefore has had no notice that the Court might address this
issue), I am content to leave final resolution of this conundrum
to another day.
_______________________________________
Andrew D. Hurwitz, Justice
CONCURRING:
_______________________________________
Michael D. Ryan, Justice
State v. Martinez, 210 Ariz. 578, 585 ¶ 26, 115 P.3d 618, 625
(2005).
16
State v. Price
Court: Arizona Supreme Court
Date filed: 2007-12-03
Citations: 171 P.3d 1223, 217 Ariz. 182
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