State v. Fell

SUPREME COURT OF ARIZONA
En Banc

THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-04-0344-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 04-0057
HON. HOWARD FELL, JUDGE PRO )
TEMPORE OF THE SUPERIOR COURT OF ) Pima County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Pima, ) No. CR20002900
)
Respondent Judge, )
) O P I N I O N
EDWARD JOHN SANDERS, )
)
Real Party in Interest. )
)
__________________________________)

Special Action from the Superior Court of Pima County
The Honorable Howard Fell, Judge Pro Tempore
No. CR20002900

REMANDED

Opinion of the Court of Appeals, Division Two
209 Ariz. 77, 97 P.3d 902

AFFIRMED

BARBARA LAWALL, PIMA COUNTY ATTTORNEY Tucson
By Amy Pignatella Cain, Deputy County Attorney
Kathleen A. Mayer, Deputy County Attorney
Attorneys for State of Arizona

HIGGINS & HIGGINS, P.C. Tucson
By Harold Higgins, Jr.
Attorneys for Edward John Sanders
H U R W I T Z, Justice

¶1 Under Arizona law, if the death penalty is not imposed

for first degree murder, the only other possible sentences are

life with the possibility of release after a specified period

(“life”)1 or life with no possibility of eventual release

(“natural life”). Ariz. Rev. Stat. (“A.R.S.”) § 13-703(A)

(Supp. 2004). We are called on in this case to decide (1)

whether the Sixth Amendment requires that a jury find specific

aggravating circumstances before the superior court may impose a

natural life sentence and (2) whether the superior court can

apply a law adopted in 2003 in deciding between a life and a

natural life sentence for a first degree murder committed in

2000.

I.

¶2 Edward John Sanders was indicted in 2000 for sexual

assault and murder. The State filed a notice of intent to seek

the death penalty and alleged two aggravating circumstances:

that Sanders had committed the offense in an especially heinous,

cruel, or depraved manner, see A.R.S. § 13-703(F)(6) (Supp.

1
The period depends upon the age of the murdered person. If
the murdered person is fifteen or more years of age, the period
is twenty-five calendar years; if less than fifteen years of
age, the period is thirty-five years. A.R.S. § 13-703(A).

2
2000),2 and that at the time of the offense Sanders was an adult

and the victim was seventy years of age or older, see A.R.S. §

13-703(F)(9). The State later withdrew the notice seeking the

death penalty.

¶3 Before the case proceeded to trial, two different

cases and two different legislative enactments radically

affected Arizona’s first degree murder sentencing scheme. In

2002, the Supreme Court of the United States held Arizona’s

capital sentencing scheme unconstitutional because judges, not

juries, determined the existence of the aggravating

circumstances necessary to impose a death sentence. Ring v.

Arizona, 536 U.S. 584 (2002) (“Ring II”). The legislature

reacted to Ring II by amending Arizona’s sentencing scheme to

provide for jury trials on the existence of aggravating

circumstances in capital cases. 2002 Ariz. Sess. Laws, 5th

Spec. Sess., ch. 1.

¶4 In 2003, this Court held that under the pre-Ring

statutory scheme, a judge imposing a non-capital sentence for

first degree murder could consider only the aggravators set

forth in A.R.S. § 13-703(F) when deciding the appropriate

punishment. State v. Viramontes, 204 Ariz. 360, 64 P.3d 188

(2003). The legislature then amended the sentencing scheme to

2
Unless noted otherwise, all citations to A.R.S. § 13-703 in
this opinion refer to the version of the statute in place at the
time this crime was committed in 2000.
3
provide that a trial judge “[s]hall consider the aggravating and

mitigating circumstances listed in section 13-702” when choosing

between a life or natural life sentence for first degree murder.

2003 Ariz. Sess. Laws, ch. 255, § 2 (codified as A.R.S. § 13-

703.01(Q) (Supp. 2003)).

¶5 On June 11, 2004, a jury found Sanders guilty of first

degree murder and other offenses. On June 24, 2004, the United

States Supreme Court held Washington’s non-capital sentencing

scheme unconstitutional under the Sixth Amendment. Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The trial

judge subsequently determined that Blakely required a jury to

find the existence of aggravating circumstances before Sanders

could be sentenced to natural life. The trial judge also

concluded that, notwithstanding the adoption of § 13-703.01(Q),

only the aggravating circumstances listed in A.R.S. § 13-703(F)

were relevant to the sentencing decision.3

¶6 The State petitioned for special action review in the

court of appeals. That court accepted jurisdiction and held

that Blakely does not apply to Arizona’s non-capital, first

degree murder sentencing scheme because a trial judge is not

required to make findings in addition to those made by the jury

in its guilty verdict in deciding between a life and a natural

3
Although neither the superior court’s written order nor the
transcripts of the proceedings below are explicit on this point,
the parties agreed at oral argument in the court of appeals that
the superior court so held.
4
life sentence. State v. Fell (Sanders), 209 Ariz. 77, 89 ¶ 42,

97 P.3d 902, 914 (App. 2004). It also held that A.R.S. § 13-

703.01(Q) did not apply retroactively and that the trial court

therefore could consider only the factors in § 13-703(F) when

determining the sentence. Id. at 85 ¶ 27, 97 P.3d at 910.

¶7 Sanders petitioned for review of the Blakely holding

and the State cross-petitioned for review of the retroactivity

holding. We granted both petitions because the issues are of

statewide importance. We have jurisdiction pursuant to Article

6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-

120.24 (2003).

II.

A.

¶8 As we noted last year, Apprendi v. New Jersey, 530

U.S. 466 (2000), and its progeny make plain “that the Sixth and

Fourteenth Amendments of the United States Constitution require

a jury to find, beyond a reasonable doubt, any fact that would

‘expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict’ alone.” State v. Brown

(McMullen), 209 Ariz. 200, 202 ¶ 7, 99 P.3d 15, 17 (2004)

(quoting Apprendi, 530 U.S. at 494). Any fact other than the

existence of a prior conviction that increases a defendant’s

punishment beyond the “statutory maximum” must be found by a

5
jury beyond a reasonable doubt. Id. (quoting Apprendi, 530 U.S.

at 490).

¶9 In Blakely, the Supreme Court held that

the “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
. . . . In other words, the relevant “statutory
maximum” is not the maximum sentence a judge may
impose after finding additional facts, but the maximum
he may impose without any additional findings. When a
judge inflicts punishment that the jury’s verdict
alone does not allow, the jury has not found all the
facts “which the law makes essential to the
punishment,” and the judge exceeds his proper
authority.

542 U.S. at ___, 124 S. Ct. at 2537. Our initial task therefore

is to determine the “statutory maximum” for first degree murder

in Arizona: the maximum sentence that can be imposed without

the superior court making any factual findings beyond those

reflected in the jury verdict of guilt.

B.

¶10 Determining the “statutory maximum” for

Apprendi/Blakely purposes is of necessity a matter of statutory

construction. See Brown (McMullen), 209 Ariz. at 202-03 ¶¶ 11-

12, 99 P.3d at 17-18. When the crime in this case was

committed, A.R.S. § 13-1105(C) (Supp. 2000) provided that

“[f]irst degree murder . . . is punishable by death or life

imprisonment as provided by section 13-703.” At that time,

A.R.S. § 13-703(A) in turn provided as follows:

6
 A person guilty of first degree murder as defined in §
13-1105 shall suffer death or imprisonment in the
custody of the state department of corrections for
life as determined and in accordance with the
procedures provided in subsections B through G of this
section. If the court imposes a life sentence, the
court may order that the defendant not be released on
any basis for the remainder of the defendant’s natural
life. An order sentencing the defendant to natural
life is not subject to commutation or parole, work
furlough or work release. If the court does not
sentence the defendant to natural life, the defendant
shall not be released on any basis until the
completion of the service of twenty-five calendar
years if the victim was fifteen or more years of age
and thirty-five years if the victim was under fifteen
years of age.

¶11 We interpreted this statutory scheme in State v. Ring,

200 Ariz. 267, 25 P.3d 1139 (2001) (“Ring I”), rev’d on other

grounds by Ring II, 536 U.S. 584. We stated that in first

degree murder cases, “[t]he range of punishment allowed by law

on the basis of the [guilty] verdict alone is life imprisonment

with the possibility of parole or imprisonment for ‘natural

life’ without the possibility of release.” Id. at 279 ¶ 42, 25

P.3d at 1151. Although Ring I did not address the precise issue

now before us, we today confirm that our statement in that case

accurately explained the law: nothing in § 13-703 required the

finding of any fact beyond those reflected in the jury’s verdict

of guilt as a prerequisite to the imposition of a natural life

sentence.

¶12 The first degree murder sentencing statute in effect

in 2000 expressly required the finding of at least one

7
aggravating circumstance before a death sentence could be

imposed. See A.R.S. § 13-703(E) (allowing sentence of death

only if the “court finds one or more aggravating circumstances

. . . and that there are no mitigating circumstances

sufficiently substantial to call for leniency”); State v.

Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983) (“Where none

of the statutory aggravating circumstances are found to be

present, our statute prohibits the death penalty.”).4 In

contrast, nothing in § 13-703 required that any specific fact be

found before a natural life sentence could be imposed.

¶13 Sanders nonetheless argues that life is the

“presumptive” sentence for first degree murder and that natural

life is an “aggravated” sentence. The notion of a presumptive

sentence arises from the statutes governing punishment for

felonies other than first degree murder, which generally provide

that a defendant “shall” receive a specific term of

imprisonment. See A.R.S. §§ 13-701 (2001) (governing sentences

for class 2, 3, 4, 5 and 6 felonies) and 13-710 (2001)

(governing sentences for second degree murder). The presumptive

sentence may be either increased or reduced based upon findings

of specific aggravating or mitigating circumstances. A.R.S. §

13-702(A) (Supp. 2004). Thus, we held in Brown (McMullen) that

4
The current version of the statute similarly requires that
the “trier of fact” find one of the statutory aggravating
circumstances before the death penalty can be imposed. A.R.S. §
13-703(E) (Supp. 2004).
8
the “presumptive sentence” under § 13-701 is the “maximum

sentence” for purposes of Apprendi analysis. 209 Ariz. at 203 ¶

12, 99 P.3d at 18.

¶14 However, the statutes governing sentencing for first

degree murder are markedly different. While §§ 13-701 and 13-

710 provide that a specific sentence “shall” be imposed for

various felonies in the absence of a finding of either the prior

criminal history described in A.R.S. § 13-604 or the aggravating

circumstances specified in § 13-702, § 13-703 contains no

similar language. The statute does not provide that a defendant

“shall” receive life unless certain facts are found. To the

contrary, the statute provides that “[i]f the court imposes a

life sentence, the court may order that the defendant not be

released on any basis for the remainder of the defendant’s

natural life.” A.R.S. § 13-703(A) (emphasis added). Had the

legislature intended to require a specific finding be made

before a natural life sentence could be imposed, it surely would

have said so specifically, as it did in the statutes governing

sentencing for felonies other than first degree murder.

¶15 Unlike the determinate sentencing scheme generally

applicable to other felonies, § 13-703(E) provides the superior

court with the discretion to sentence an offender within a range

– from life to natural life – for non-capital first degree

murder. See State v. Wagner, 194 Ariz. 310, 313 ¶ 16, 982 P.2d

9
270, 273 (1999) (noting that the first degree murder statutes

“lack . . . guidelines for imposing a sentence of life or

natural life”). In this area, the legislature has concluded

that the trial court can appropriately exercise its discretion

to determine whether future release is possible (although not

assured) or whether the defendant must instead spend the rest of

his or her life in prison.5

C.

¶16 Viramontes held that under the pre-Ring version of the

first degree murder sentencing scheme, the “procedures and

aggravators of section 13-703 apply” in all first degree murder

cases, not simply those in which the death penalty is sought.

204 Ariz. at 362 ¶ 10, 64 P.3d at 190. Sanders argues that

because A.R.S. § 13-703(D) required that the court “return a

special verdict setting forth its findings as to the existence

or non-existence” of aggravating and mitigating circumstances, a

natural life sentence could not be imposed in the absence of the

5
State v. Ovind, 186 Ariz. 475, 924 P.2d 479 (App. 1996),
upon which Sanders relies, is not to the contrary. The court of
appeals expressly recognized in Ovind that “[u]nlike the
sentences for other crimes, the statute relating to first degree
murder does not describe any sentence as the ‘presumptive’ one.”
Id. at 478, 924 P.2d at 482. The court nonetheless applied the
rule of lenity in concluding that life was the presumptive
sentence for purposes of commitment of a defendant adjudged
guilty but insane, because it was “the least onerous commitment
to which the statute exposes the Defendant.” Id. (emphasis
added). The “least onerous commitment” allowed by the guilty
verdict is by definition plainly not the “maximum sentence” for
purposes of Apprendi analysis.
10
finding of at least one of the aggravating circumstances listed

in § 13-703(F). But Sanders’ argument conflates the notion of a

“statutory maximum” with an entirely different concept — the

specification by the legislature of what facts a sentencing

court may consider in exercising its discretion within a

statutorily permitted sentencing range.

¶17 In holding that a judge deciding between a life and

natural life sentence can consider only the factors in § 13-

703(F), Viramontes neither expressly nor impliedly held that a

court must find any specific aggravating factor to impose a

natural life sentence. The special verdict explains the judge’s

reasons for imposing the sentence, but the statute does not

require any specific factual finding before a defendant is

statutorily eligible for a natural life term. As Justice Scalia

explained in Blakely, there is an important constitutional

difference between factual findings necessary to make a

defendant eligible for a specified range of penalty and those

that shape a trial judge’s discretion within that range:

[T]he Sixth Amendment by its terms is not a limitation
on judicial power, but a reservation of jury power.
It limits judicial power only to the extent that the
claimed judicial power infringes on the province of
the jury. Indeterminate sentencing does not do so.
It increases judicial discretion, to be sure, but not
at the expense of the jury’s traditional function of
finding the facts essential to lawful imposition of
the penalty. Of course indeterminate schemes involve
judicial factfinding, in that a judge (like a parole
board) may implicitly rule on those facts he deems
important to the exercise of his sentencing
11
 discretion. But the facts do not pertain to whether
the defendant has a legal right to a lesser sentence—
and that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is
concerned.

542 U.S. at ___, 124 S. Ct. at 2540.

¶18 Sanders argues that the requirement in § 13-703(D)

that the superior court return a special verdict is meaningless

unless some specific factual finding is required before a

natural life sentence is imposed. A statutory requirement that

a judge make findings, however, does not mean that any specific

finding is necessary for imposition of the sentence.6 The

statutory scheme restricted the factors that the superior court

could consider in choosing between life and natural life

6
The Supreme Court has reached a similar conclusion with
respect to the federal sentencing guidelines. In United States
v. Booker, the Court, after holding that the provision making
the guidelines mandatory violated the Sixth Amendment, severed
that provision, thus making the guidelines “effectively
advisory.” 125 S. Ct. 738, 756-57 (2005) (Breyer, J., for the
Court (remedial majority)). So construed, the federal
guidelines did not violate the rule of Apprendi because they
simply directed sentencing judges to consider certain factors
when imposing a sentence within the previously determined
statutory range. See id. at 750 (“If the Guidelines as
currently written could be read as merely advisory provisions
that recommended, rather than required, the selection of
particular sentences in response to differing sets of facts,
their use would not implicate the Sixth Amendment.”) (Stevens,
J., for the Court (constitutional majority)). Thus, even though
federal judges make specific findings with respect to facts not
found by the jury in imposing sentence, there is no Sixth
Amendment violation because those findings do not increase the
statutory maximum. Similarly, the findings in an Arizona
special verdict resulting in a natural life sentence do not
increase the statutory maximum.

12
sentences for non-capital first degree murder. Given the

requirement of the former statute that only the aggravating

factors listed in § 13-703(F) be considered in determining

whether a life or natural life sentence was to be imposed, see

Viramontes, 204 Ariz. at 362 ¶ 12, 64 P.3d at 190, the special

verdict served to ensure that inappropriate factors were not

considered when the trial court exercised its sentencing

discretion.7

¶19 We therefore conclude that the Sixth Amendment does

not require that a jury find an aggravating circumstance before

a natural life sentence can be imposed.

III.

¶20 The remaining question is what factors the judge may

consider in exercising his discretion to sentence a defendant to

either life or natural life. Viramontes held that the former

version of § 13-703 limited trial judges to the aggravating

factors listed in subsection (F) of that statute. Several

months after that opinion was issued, the legislature enacted

7
When the sentencing scheme places discretion in the
superior court to sentence within a specified range, an
appellate court has the power to review the sentence for an
abuse of discretion. See State v. Grier, 146 Ariz. 511, 515,
707 P.2d 309, 313 (1985) (“An abuse of discretion in sentencing
is characterized by capriciousness, arbitrariness or by failure
to conduct an adequate investigation into facts necessary for an
intelligent exercise of the court’s sentencing power.”). While
an abuse of discretion will, as a practical matter, rarely be
found, the trial court’s explanation of its reasoning serves to
facilitate such review, and is thus never a useless exercise.

13
what is now A.R.S. § 13-703.01(Q)(2) (Supp. 2004), providing

that “[i]n determining whether to impose a sentence of life or

natural life,” a trial court “[s]hall consider the aggravating

and mitigating circumstances listed in section 13-702 and any

statement made by a victim.” 2003 Ariz. Sess. Laws, ch. 225, §

2. The State argues that § 13-703.01(Q) should be applied when

the superior court determines Sanders’ sentence.

A.

¶21 “No statute is retroactive unless expressly declared

therein.” A.R.S. § 1-244 (2002). Nothing in 2003 Ariz. Sess.

Laws, ch. 225, expressly declares that § 13-703.01(Q) is to be

retroactively applied. In contrast, when the legislature

amended the death penalty sentencing scheme after Ring II, it

carefully detailed the application of various provisions of the

new statute to pending cases. 2002 Ariz. Sess. Laws, 5th Spec.

Sess., ch. 1, § 7.

¶22 However, the absence of any legislative declaration

about retroactivity does not end our inquiry.

This court has previously created an exception to the
general rule requiring express language of
retroactivity. Enactments that are procedural only,
and do not alter or affect earlier established
substantive rights may be applied retroactively. Even
if a statute does not expressly provide for
retroactivity, it may still be applied if merely
procedural because litigants have no vested right in a
given mode of procedure.

14
Aranda v. Indus. Comm’n, 198 Ariz. 467, 470 ¶ 11, 11 P.3d 1006,

1009 (2000). We thus must determine whether § 13-703.01(Q) is a

procedural or substantive change to prior law.

¶23 We conclude that the change was not simply procedural.

Under the law in effect at the time that Sanders committed his

crime, the superior court could consider only the ten

aggravators specified in § 13-703(F) in making the choice

between a life and natural life sentence. Section 13-703.01(Q)

instead empowers the trial court to take into account the

twenty-one aggravators listed in § 13-702(C). Because the new

statute thus allows the imposition of a sentence on the basis of

factors that the prior law excluded from consideration, it is

plainly a substantive change in the law. See State v. Correll,

148 Ariz. 468, 482, 715 P.2d 721, 735 (1986) (holding that a law

changing the aggravating circumstances that may be considered in

a decision to impose the death penalty for murder under § 13-703

“is a substantive, rather than a procedural, change”).

B.

¶24 We have recognized another exception to the general

rule against retroactive application of a statutory amendment

when the amendment is simply a “clarification” of existing law.

“An amendment which, in effect, construes and clarifies a prior

statute will be accepted as the legislative declaration of the

15
original act.” City of Mesa v. Killingsworth, 96 Ariz. 290,

297, 394 P.2d 410, 414 (1964).

¶25 This rule of statutory interpretation applies,

however, only when the “original statute” is ambiguous. State

v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985). Even

assuming arguendo that § 13-703 was ambiguous before Viramontes,

no such conclusion was possible after our decision in that case.

“Once published, our interpretation becomes part of the

statute.” Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 17, 69

P.3d 23, 27 (2003). After Viramontes, it was clear that § 13-

703 precluded a trial judge from considering the aggravating

circumstances in § 13-702 when determining whether to impose a

life or natural life sentence. The 2003 statutory amendment to

§ 13-703.01(Q) cannot therefore be read as a clarification of

prior law. Compare Sweet, 143 Ariz. at 271, 693 P.2d at 926

(construing amendment to A.R.S. § 13-604.01 as “clarification”

where “[t]he amendment did not change that which was clear and

distinct in the first place”), with State v. Murray, 194 Ariz.

373, 982 P.2d 1287 (1999) (refusing to apply amendments to

A.R.S. §§ 13-604, -604.02 retroactively, where amendments

abrogated prior case law interpreting statutory language).

C.

¶26 Finally, the State argues that Viramontes was wrongly

decided and urges that we overrule it. We decline to do so.

16
 The doctrine of stare decisis, which requires us to
give weight to previous decisions addressing the same
issue, seeks to promote reliability so that parties
can plan activities knowing what the law is.
Importantly, our deference to precedent is strongest
when prior decisions construe a statute. [E]ven those
who regard stare decisis with something less than
enthusiasm recognize that the principle has even
greater weight where the precedent relates to
interpretation of a statute.

Galloway, 205 Ariz. at 256 ¶ 16, 69 P.3d at 27 (internal

quotation marks and citations omitted). Viramontes, as noted

above, involved statutory construction.

¶27 The legislature is, of course, free at any time to

respond to our statutory interpretations by changing the

relevant statute. That is precisely what occurred here. By

enacting § 13-703.01(Q), the legislature restricted the

application of the holding in Viramontes to those cases arising

before the effective date of the new statute. Thus, there is no

reason to revisit our prior decision.

IV.

¶28 For the reasons above, the opinion of the court of

appeals is affirmed, and the case is remanded to the superior

court for further proceedings consistent with this opinion.

Andrew D. Hurwitz, Justice
CONCURRING:

_________
Ruth V. McGregor, Chief Justice

17
 ____
Rebecca White Berch, Vice Chief Justice

____
Michael D. Ryan, Justice

____
Charles E. Jones, Justice (Retired)

18