SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0308-PR
Respondent, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0935 PRPC
MICHAEL DIMETRIUS SCHMIDT, )
) Maricopa County
Petitioner. ) Superior Court
) No. CR1992-003695
)
)
) O P I N I O N
__________________________________)
Petition for Review from the Superior Court in Maricopa County
The Honorable Carey Snyder Hyatt, Judge
VACATED AND REMANDED
________________________________________________________________
Order of the Court of Appeals, Division One
Filed Sept. 26, 2008
________________________________________________________________
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Elizabeth B. Ortiz, Deputy County Attorney
Attorneys for the State of Arizona
LAW OFFICES OF MICHAEL P. DENEA, PLC Phoenix
By Michael P. Denea
Attorney for Michael Dimetrius Schmidt
________________________________________________________________
B A L E S, Justice
¶1 Under Arizona law, those convicted of a crime are
subject to longer sentences when certain aggravating factors are
proved. We hold that a court may not, consistent with due
process, increase a defendant’s maximum potential sentence based
solely on a so-called “catch-all” aggravator, defined as “any
other factors which the court may deem appropriate to the ends
of justice.” Ariz. Rev. Stat. (“A.R.S.”) § 13-702(D)(13) (Supp.
1991).1
I.
¶2 In April 1993, Michael Dimetrius Schmidt entered into
an agreement under which he pled guilty to two of eight offenses
charged in an indictment – count 4, sexual abuse and count 5,
attempted sexual abuse. Each was charged as a dangerous crime
against children. Consistent with the plea agreement, the court
sentenced Schmidt to the presumptive term of ten years’
imprisonment on count 4 and lifetime probation on count 5 and
dismissed the other counts. After serving his sentence on count
4, Schmidt was released on probation. During the next two
years, the probation department filed three petitions to revoke
Schmidt’s probation. The trial court twice reinstated probation
conditioned on Schmidt serving six-month jail terms.
¶3 After a third petition was filed, the trial court
revoked probation on count 5. Instead of the presumptive
sentence of ten years, the court imposed an aggravated sentence
1
The legislature has amended and moved the catch-all
provision since Schmidt committed his offenses. It is currently
located at A.R.S. § 13-701(D)(24) (Supp. 2008), and covers
“[a]ny other factor that the state alleges is relevant to the
defendant’s character or background or to the nature or
circumstances of the crime.”
2
of 12.5 years. The court stated that it was aggravating the
sentence under the catch-all provision based on Schmidt’s
conviction on count 4. Schmidt petitioned for post-conviction
relief, which the trial court denied. The court of appeals
denied review.
¶4 We granted review to address the recurring issue of
the use of the catch-all aggravator as the sole aggravating
factor to increase a defendant’s maximum potential sentence. We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution, A.R.S. section 13-4239(H) (2001), and Arizona Rule
of Criminal Procedure 32.9(g).
II.
¶5 The Due Process Clause of the Fourteenth Amendment
mandates that criminal statutes not be vague. See Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). Two principles
underlie this key tenet. First, citizens are entitled to fair
notice of the acts the government deems worthy of punishment so
they may conform their conduct to the law. See Rose v. Locke,
423 U.S. 48, 50 (1975). Second, the law must be sufficiently
definite to avoid arbitrary enforcement. See Grayned, 408 U.S.
at 108-09 (“A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.”). The second
3
principle is the more important of the two. See Kolender v.
Lawson, 461 U.S. 352, 357-58 (1983); see also United States v.
Reese, 92 U.S. 214, 221 (1875) (“It would certainly be dangerous
if the legislature could set a net large enough to catch all
possible offenders, and leave it to the courts to step inside
and say who could be rightfully detained, and who should be set
at large.”). This is because “[t]he touchstone of due process
is protection of the individual against arbitrary action of
government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974); see
also County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)
(“Since the time of our early explanations of due process, we
have understood the core of the concept to be protection against
arbitrary action[.]”).
III.
¶6 In Apprendi v. New Jersey, the United States Supreme
Court stated that “[s]ince [In re] Winship, [397 U.S. 358
(1970),] we have made clear beyond peradventure that Winship’s
due process and associated jury protections extend, to some
degree, ‘to determinations that [go] not to a defendant’s guilt
or innocence, but simply to the length of his sentence.’” 530
U.S. 466, 484 (2000) (quoting Almendarez-Torrez v. United
States, 523 U.S. 224, 251 (1998) (Scalia, J., dissenting)). The
Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
4
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. The thrust of
the Apprendi line of cases is that any fact that “the law makes
essential to the punishment” is the “functional equivalent of an
element of a greater offense,” and is to be treated accordingly.
See Blakely v. Washington, 542 U.S. 296, 303-04 (2004); Ring v.
Arizona, 536 U.S. 584, 609 (2002).
¶7 This Court has recognized that under Arizona law, “the
statutory maximum sentence for Apprendi purposes in a case in
which no aggravating factors have been proved . . . is the
presumptive sentence established” by statute. State v.
Martinez, 210 Ariz. 578, 583 ¶ 17, 115 P.3d 618, 623 (2005). An
aggravating factor that subjects a defendant to an increased
statutory maximum penalty is thus the functional equivalent of
an element of an aggravated offense. Because protection against
arbitrary government action is the quintessence of due process,
the rationale of Apprendi and subsequent cases requires that we
assess the vagueness of the catch-all aggravator in Arizona’s
sentencing scheme when it alone is used to increase a
defendant’s maximum potential sentence.
IV.
¶8 When Schmidt committed his offenses, the relevant
statute provided that a defendant’s sentence could be increased
based on twelve specific aggravating factors. A.R.S. § 13-
5
702(D)(1)-(12) (Supp. 1991). For example, the statute
identified the infliction of serious physical injury, id. §
(D)(1), the use of a weapon, id. § (D)(2), and the presence of
an accomplice, id. § (D)(4), as potential aggravating factors.
In addition to the twelve listed aggravating factors, the
statute included a catch-all: “Any other factors which the court
may deem appropriate to the ends of justice.” Id. § (D)(13).
¶9 The catch-all provision is patently vague. As Justice
Hurwitz observed in his concurrence in State v. Price, “[i]t 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.’” 217 Ariz. 182, 187 ¶ 27, 171 P.3d 1223,
1228 (2007) (Hurwitz, J., concurring); see also Sattazhan v.
Pennsylvania, 537 U.S. 101, 112 (2003) (plurality opinion)
(noting that “‘murder plus one or more aggravating
circumstances’ is a separate offense from ‘murder’
simpliciter”).
¶10 Use of the catch-all as the sole factor to increase a
defendant’s statutory maximum sentence violates due process
because it gives the sentencing court virtually unlimited post
hoc discretion to determine whether the defendant’s prior
conduct is the functional equivalent of an element of the
6
aggravated offense. Cf. Kolender, 461 U.S. at 358 (declaring
unconstitutional statute that provided “virtually complete
discretion in the hands of the police” to assess whether statute
had been violated).
¶11 There is, however, an important difference between a
trial court’s using a catch-all aggravator to increase a
defendant’s maximum potential sentence versus the court’s
considering factors embraced by a catch-all in imposing a
sentence within a properly determined maximum range. When one
or more clearly enumerated aggravators are found consistent with
Apprendi, and they allow imposition of an aggravated sentence
under the relevant statutory scheme, the “elements” of the
aggravated offense will have been identified with sufficient
clarity to satisfy due process. Subsequent reliance on other
factors embraced by a catch-all provision to justify a sentence
up to the statutory maximum comports with the traditional
discretionary role afforded judges in sentencing. See Price,
217 Ariz. at 188 n.5 ¶ 29, 171 P.3d at 1229 n.5 (Hurwitz, J.,
concurring) (“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.’”); Martinez, 210 Ariz. at 583
7
¶ 16, 115 P.3d at 623; see also Apprendi, 530 U.S. at 481 (“We
should be clear that nothing in this history suggests that it is
impermissible for judges to exercise discretion – taking into
consideration various factors relating both to offense and
offender – in imposing a judgment within the range prescribed by
statute.”).
V.
¶12 Because the trial court increased the length of
Schmidt’s sentence beyond the presumptive based solely on the
catch-all aggravator, the sentence is invalid. We therefore
vacate the sentence and remand this case for resentencing in
accordance with this opinion.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
8
State v. Schmidt
Court: Arizona Supreme Court
Date filed: 2009-06-03
Citations: 208 P.3d 214, 220 Ariz. 563
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