State v. Burgett, 244 P.3d 89

Burgett pled to aggravated assault and received a 15-year aggravated term; sentencing relied on aggravators including emotional harm and offense in the presence of children.
Burgett challenged the trial court’s reliance on the presence of children as an aggravator and its admission of hearsay at the aggravation/mitigation hearing via Rule 32 post-conviction relief.
The post-conviction petition was dismissed; Burgett sought review under State v. Swoopes standard governing abuse of discretion.
Plea waiver: Burgett waived Blakely rights and the court could determine sentencing facts by a preponderance of the evidence, not bound by rules of evidence.
Factual posture: Burgett and the victim had two children; at the time of the offense the children were living with the victim and Burgett, who had been separated from the victim, attacked him with a box cutter after leaving a room with the children present nearby.
Statutory interpretation: § 13-701(D)(18) targets domestic violence and authorizes harsher punishment when children are exposed to such violence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether presence of a child supports §13-701(D)(18) aggravation.	Burgett argues no presence under statute.	State contends child presence is established by proximity and immediacy under the statute.	Yes; statute clear and children were present.
If 'presence' requires immediacy, do facts show immediacy?	Burgett challenges interpretation requiring immediacy.	State argues the facts still show presence even if not in same room.	Facts support presence even if immediacy is considered broadly.
Whether the trial court abused its discretion by admitting hearsay at aggravation/mitigation hearing.	Burgett asserts error in admitting hearsay.	State notes waiver of evidentiary rules and independent basis for presence.	No abuse of discretion; hearing permitted evidence and presence was established otherwise.
Whether Burgett validly waived Blakely rights and whether sentencing facts may be found by preponderance of the evidence.	Burgett contends Blakely waiver is invalid for determining facts.	State relies on waiver and non-applicability of evidence rules to sentencing facts.	Waiver valid; sentencing factors may be determined by a preponderance of the evidence.

State v. Swoopes, 216 Ariz. 390 (App.2007) (abuse of discretion standard in post-conviction review)
State v. Rubiano, 214 Ariz. 184 (App.2007) (abuse of discretion includes legal error)
State v. Ontiveros, 206 Ariz. 539 (App.2003) (statutory interpretation priority when language is clear)
State v. Hansen, 215 Ariz. 287 (App.2007) (statutory interpretation and plain meaning governs)
Collins v. State, 166 Ariz. 409 (App.1990) (sensical construction to avoid absurd results)
State v. Carreon, 210 Ariz. 54 (2005) (children may be present for purposes of the statute even if not in same room)