State v. Price

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