State v. Balli, 1 CA-CR 20-0502

Tyler Ray Balli was convicted of first-degree burglary and aggravated harassment; original sentence treated burglary as a dangerous offense and imposed 9 years for burglary concurrent with 1 year for harassment.
This court previously vacated and remanded the burglary sentence because no jury found dangerousness and the charged burglary was not inherently dangerous.
At resentencing the superior court (as to burglary) found two aggravators: victim over 65 and a prior felony within ten years; the court imposed an aggravated 9-year term (Balli as a first-time offender).
The State conceded on appeal that the prior-felony aggravator lacked evidentiary support (it relied only on the presentence report), but argued the victim-age aggravator was supported.
The appellate court held the victim-age aggravator was indisputably proven, the prior-felony aggravator was improperly considered, and that Balli demonstrated prejudice from the improper aggravator; the court vacated the burglary sentence and remanded for resentencing.
The court rejected claims of prosecutorial and judicial vindictiveness because Balli’s ultimate sentence did not increase on remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judge-imposed aggravators violated the Sixth Amendment (Apprendi/Blakely)	State: aggravators justified resentencing; asked court to reimpose 9 years	Balli: judge-found aggravators violated right to jury finding; fundamental error and prejudicial	Court: fundamental error conceded; victim-age aggravator supported; prior-felony aggravator unsupported; prejudice shown; vacated sentence and remanded
Prosecutorial vindictiveness after appeal	State: no vindictiveness; prosecutor sought same 9-year sentence on remand	Balli: prosecutor sought harsher punishment in retaliation for appeal	Court: no vindictiveness because sentence was not increased; doctrine inapplicable
Judicial vindictiveness on resentencing	State: judge’s sentence had non-vindictive bases; no due process violation	Balli: judge imposed aggravated sentence in retaliation for appeal	Court: no due process violation because sentence did not increase and judge made no vindictive remarks

Blakely v. Washington, 542 U.S. 296 (2004) (jury must find facts increasing maximum sentence beyond statutory range)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be found by jury beyond a reasonable doubt)
State v. Henderson, 210 Ariz. 561 (2005) (standard for fundamental error review)
State v. Trujillo, 227 Ariz. 314 (App. 2011) (prejudice exists if court could reasonably have imposed a lighter sentence absent improper aggravator)
State v. Pena, 209 Ariz. 503 (App. 2005) (reversal of a single aggravating factor may change sentencing calculus)
Blackledge v. Perry, 417 U.S. 21 (1974) (due process prohibits vindictive prosecution following exercise of a constitutional right)
United States v. Kinsey, 994 F.2d 699 (9th Cir. 1993) (vindictiveness doctrine does not apply when sentence is unchanged)
North Carolina v. Pearce, 395 U.S. 711 (1969) (judicial vindictiveness and limitations on increasing sentence after appeal)