The STATE of Arizona, Appellee, v. Jesus Antonio ALEMAN, Appellant.
No. 2 CA-CR 2003-0075.
Court of Appeals of Arizona, Division 2, Department B.
April 4, 2005.
109 P.3d 571
Harriette P. Levitt, Tucson, for Appellant.
OPINION
PELANDER, Chief Judge.
¶ 1 After a jury trial, appellant Jesus Aleman was convicted of two counts of second-degree murder, four counts of aggravated assault, and three counts of aggravated driving while under the influence of an intoxicant (DUI). The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling eighteen years on the murder and aggravated assault convictions, and a consecutive, ten-year term of supervised probation, a condition of which was a four-month prison term, on the aggravated DUI convictions. Aleman received mitigated, ten-year, concurrent sentences on the
¶ 2 In the sole issue raised on appeal, Aleman contends the trial court erroneously denied his pretrial motion to suppress evidence of blood test results, arguing
BACKGROUND
¶ 3 “In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court‘s ruling ... [and consider] only the evidence presented at the suppression hearing.” State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d 392, 394 (App. 2000); see also State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). On April 29, 2000, a car driven by Aleman crossed the centerline of a two-lane highway and collided head-on with an approaching minivan. Aleman was seriously injured and two passengers in his car were killed in the collision. The four family-member occupants of the minivan, two of whom were minors, were seriously injured. Law enforcement officers who responded to the accident scene found Aleman in and out of consciousness and trapped behind his car‘s steering wheel. Fire department personnel had to cut Aleman out of the car. The two passengers in Aleman‘s car were pronounced dead at the scene.
¶ 4 One officer testified that he had seen open alcoholic beverage containers in the car and on the roadway and that fire department personnel had told him they had detected the odor of an intoxicating beverage on Aleman‘s breath and person. Another officer testified he had seen beer cans in Aleman‘s car and had smelled a “distinct strong odor” of alcohol coming from Aleman. He also testified that from just outside the car by the driver‘s door, he had noticed the odor of alcohol became stronger when Aleman attempted to speak to the passenger in the front seat. A supervising officer at the scene also detected an odor of alcohol from Aleman‘s car and was told by another officer that Aleman was “under the influence of alcohol.”
¶ 5 Aleman was transported to a hospital, where he became “extremely uncooperative.” A hospital phlebotomist testified that Aleman had attempted to get off of the examination table, and it had taken about eight people to hold him down. The phlebotomist considered this a severe trauma case and testified that blood draws are “mandatory” for every trauma patient seen at the hospital. The hospital‘s trauma pack contained between five to seven blood vials. Regardless of the total number of vials, every pack contained two gray-topped vials that were specifically and routinely drawn for law enforcement purposes in every trauma case. The phlebotomist testified that she had drawn a “full trauma pack” on Aleman and that the two gray-topped vials were set aside in a locked area for law enforcement purposes.
¶ 6 Within a few hours, Officer Encisco of the Pinal County Sheriff‘s Department retrieved the two gray-topped blood vials from the hospital, took them to the sheriff‘s office, and stored them for evidence. The supervising officer testified that he had instructed Encisco to retrieve Aleman‘s blood sample from the hospital after another officer had informed the supervisor that emergency personnel had smelled an odor of alcohol on Aleman.
¶ 7 Before trial, Aleman moved to suppress evidence of the blood test results,1 arguing the blood samples had been obtained without a warrant, in violation of his Fourth Amendment rights. Following the suppression hearing, the trial court denied Aleman‘s motion,
DISCUSSION
I. Motion to suppress
¶ 8 “We review the trial court‘s ruling on a motion to suppress for clear and manifest error.” State v. Clary, 196 Ariz. 610, ¶ 8, 2 P.3d 1255, 1256-57 (App. 2000); see also State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App. 1989). In his opening brief, Aleman only challenges the trial court‘s reliance on
¶ 9 In his reply brief, however, Aleman argues that
¶ 10 Although Aleman did not challenge or otherwise address
¶ 11 Under Arizona law, absent express consent, police may obtain a DUI suspect‘s blood sample only pursuant to a valid search warrant, Arizona‘s implied consent law,
Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated
[A.R.S.] § 28-1381 4 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes.
¶ 13 The record reflects, and Aleman does not dispute, that his blood samples were drawn by medical personnel (a hospital phlebotomist) for medical purposes. See Cocio, 147 Ariz. at 286, 709 P.2d at 1345; Lind, 191 Ariz. 233, ¶ 17, 954 P.2d at 1062 (holding that “the hospital draws the entire sample ‘for medical purposes’ within the meaning of the statute, and the officer‘s subsequent statutory request for a portion of the sample does not violate any rights of a defendant“); Howard, 163 Ariz. at 50, 785 P.2d at 1238 (“officer‘s indication that he wanted a blood sample prior to the [hospital] technician‘s drawing the blood does not alter the fact of its being taken for medical purposes“); cf. Estrada. The record also reflects that the hospital furnished the two gray-topped blood vials to Officer Encisco pursuant to his request for a sample for law enforcement purposes, as
¶ 14 In conjunction with his challenge to
¶ 15 The only significant issue, therefore, is whether the officers had probable cause to believe that Aleman had violated the DUI statute at the time they requested and obtained the blood samples from the hospital. “Probable cause is something less than the proof needed to convict and something more than suspicions.” Howard, 163 Ariz. at 50, 785 P.2d at 1238; cf. Smith v. Ariz. Dep‘t of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App. 1985) (probable cause does not require law enforcement “to show that the operator was in fact under the influence“; “[o]nly the probability and not a prima facie showing of intoxication is the standard for probable cause“). In addition, probable cause exists if the collective knowledge of the officers establishes that they had “reasonably trustworthy information of facts and circumstances which are sufficient in themselves to lead a reasonable [person] to believe an offense ... has been committed and that the person to be arrested ... did commit it.” State v. Richards, 110 Ariz. 290, 291, 518 P.2d 113, 114 (1974); see also State v. Keener, 206 Ariz. 29, ¶ 14, 75 P.3d 119, 122 (App. 2003) (“[O]ur courts have long recog-
¶ 16 In addition to observing open beer containers in and around Aleman‘s car, emergency personnel who attended to him at the scene told police they had detected the odor of intoxicants on his breath. Moreover, the “distinct strong odor” of alcohol emanating from Aleman‘s position in the driver‘s seat became even stronger when he attempted to speak to the deceased front-seat passenger. The accident occurred in broad daylight when Aleman crossed the centerline and collided head-on with the oncoming van. The record reflects no circumstances other than Aleman‘s impairment to explain the collision.
¶ 17 Officer Encisco‘s testimony that he personally had not had “any evidence that Mr. Aleman had committed a crime” at the time Encisco retrieved the blood samples from the hospital is of no moment. Cf. McDougall, 191 Ariz. at 186, 953 P.2d at 930 (officer might have “probable cause to arrest even though he thought he did not“). As noted above, the collective knowledge of all of the officers may establish probable cause and in fact did so here.
¶ 18 In sum, the trial court did not clearly and manifestly err in implicitly finding the officers had had probable cause to believe Aleman had been driving while under the influence of an intoxicant, as required by
II. Blakely issues
¶ 19 After this appeal came at issue, the United States Supreme Court decided Blakely. Thereafter, pursuant to Aleman‘s motion and this court‘s order, the parties filed supplemental briefs addressing whether and how Blakely affects this case. We now address those issues.
¶ 20 As noted earlier, the trial court imposed slightly aggravated, eight-year sentences on the four aggravated assault convictions. Those convictions related to the four occupants, two of whom were minors, of the oncoming minivan with which Aleman‘s vehicle collided. In imposing those sentences, the trial court found the following aggravating circumstances: that Aleman previously had been convicted of at least one DUI and had another DUI charge pending; that two of the victims were minors; that multiple victims were involved; that Aleman‘s driver‘s license had been suspended or revoked at the time of the accident; and that Aleman had
¶ 21 In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), the Supreme Court held 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.” In Blakely, the Court extended that ruling and 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 or admitted by the defendant.” 542 U.S. at —, 124 S.Ct. at 2537. The Court explained:
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.
Id. (citation omitted), quoting 1 J. Bishop, Criminal Procedure § 87 at 55 (2d ed. 1872); see also United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
¶ 22 As Aleman correctly points out, new appellate opinions announcing a change in the law generally apply to any cases that are pending at the time the opinion is filed. See Schriro v. Summerlin, 542 U.S. 348, —, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004); Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987). Thus, Blakely applies to this case.6 See State v. Henderson, 209 Ariz. 300, ¶ 19, 100 P.3d 911, 914 (App. 2004); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d 35, 41 (App. 2004). The state does not argue otherwise.
¶ 23 Relying on Apprendi and Blakely, Aleman contends the trial court exceeded its authority by imposing aggravated sentences based on facts not found by the jury or admitted by him. Those aggravated sentences, Aleman argues, exceeded the “statutory maximum” as defined in Blakely and violated his Sixth Amendment right to a trial by jury on the aggravating circumstances. Aleman further argues that, because no aggravating factors were charged in the indictment and because the trial court supposedly has no legal authority to empanel a new jury to determine any such factors,7 he “is entitled to be resentenced to no more than the presumptive term of imprisonment” on the aggravated assault convictions.
¶ 25 Aside from its waiver argument, the state also contends Aleman‘s slightly aggravated sentences did not violate the Sixth Amendment because he “admitted at sentencing the fact that he had a prior DUI conviction—a conviction that fell within the exception announced in Apprendi.” As noted above, the Supreme Court in Apprendi excepted prior convictions from the general principle that facts that increase the penalty for a crime must be presented to a jury and proved beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455; see State v. Ring, 204 Ariz. 534, ¶¶ 64-66, 65 P.3d 915, 939 (2003) (Ring III). And, as the state correctly points out, ”Blakely did not alter Apprendi‘s exception of the fact of a prior conviction from the dictates of the Sixth Amendment trial-by-jury requirement.” See Blakely, 542 U.S. at —, 124 S.Ct. at 2536 (applying, but not altering, “the rule we expressed in Apprendi,” which expressly excluded “‘the fact of a prior conviction‘“), quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455; State v. Cons, 208 Ariz. 409, ¶ 15, n. 3, 94 P.3d 609, 614-15, 613 n. 3 (App. 2004).10
¶ 27 As noted earlier, Aleman admitted at sentencing the fact that he had a prior DUI conviction.11 The state argues, “[b]ased on the fact of the Apprendi-exempt prior conviction, [Aleman] became constitutionally eligible to receive a prison term of up to 15 years.” See
¶ 28 Some decisions by Division One of this court support the state‘s “one-is-enough” argument. See State v. Estrada, 210 Ariz. 111, ¶ 1, 108 P.3d 261 (App. 2005) (“defendant whose prior convictions constitute an aggravating circumstance” is not constitutionally entitled “to jury findings on the existence of any additional aggravating factors“); State v. Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d 30, 31-32 (App. 2004) (holding that “a judge‘s imposition of an aggravated sentence that falls within the range authorized by a jury‘s verdict comports with Blakely; a jury need not find every aggravator upon which a sentencing judge relies“); State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 12, 98 P.3d 881, 884 (App. 2004) (if jury finds “any alleged aggravating factor” was proven, trial court may consider “[o]ther factors in aggravation or mitigation” and impose a sentence anywhere “within the statutory range for aggravated sentences“); cf. Miranda-Cabrera, 209 Ariz. 220, ¶ 34, 99 P.3d at 43 (“[W]hether the sentencing scheme is determinate or indeterminate, once the jury has found the facts necessary to impose a sentence within a statutory range, a judge may consider any additional sentencing factors in imposing a lesser sentence than the statute authorizes.“).
¶ 29 This court, however, has rejected the state‘s broad argument that, even when a trial court finds both aggravating and mitigating factors, a single Blakely-compliant or -exempt aggravating factor authorizes the court to “find additional aggravating factors under the relaxed, pre-Blakely rules found in
¶ 30 Again, Aleman‘s prior DUI conviction was Blakely-exempt and, therefore, properly considered in aggravation. Likewise, the trial court properly considered two other factors that were Blakely-compliant because they were “inherent in the jury‘s verdicts.” State v. Oaks, 209 Ariz. 432, ¶ 23, 104 P.3d 163, 168 (App. 2004). The trial court cited the involvement of multiple victims as an aggravating factor. By finding Aleman guilty on the four charges of aggravated assault, the jury implicitly found there had been multiple victims. And, in its guilty verdicts on the DUI charges, the jury specifically found that at the time of the offenses, Aleman‘s license was “suspended, canceled, refused or revoked.”14 Our inquiry does not end there, however, because the trial court found other aggravating factors and weighed them against the mitigating factors it also found. See Munninger, 209 Ariz. 473, ¶ 25, 104 P.3d at 213; Timmons, 209 Ariz. 403, ¶ 11, 103 P.3d at 318-19. Nonetheless, we conclude the trial court‘s consideration of the other aggravating factors either did not violate Blakely or was harmless.
¶ 31 No Sixth Amendment violation occurs if a trial court aggravates a sentence based on a fact “admitted by the defendant.” Blakely, 542 U.S. at —, 124 S.Ct. at 2537; see also Ring III, 204 Ariz. 534, ¶ 93, 65 P.3d at 944 (“In cases in which a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, we will regard that factor as established.“). Based on undisputed evidence at trial, Aleman conceded at sentencing that “he knew he was impaired and shouldn‘t have been driving” at the time of the accident. Thus, the trial court‘s reliance on that acknowl-
¶ 32 Moreover, any alleged Blakely error relating to that factor or the other aggravating factors was harmless. Arizona courts and all federal circuit courts have concluded that Apprendi or Blakely error is subject to harmless error analysis. See State v. Sepahi, 206 Ariz. 321, n. 3, 78 P.3d 732, 735 n. 3 (2003) (“any Apprendi error would be harmless“); Henderson, 209 Ariz. 300, ¶¶ 22, 33, 100 P.3d at 917, 921-22 (noting that “every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error” and that “other courts, since Blakely, have also applied a harmless error analysis to Blakely violations“); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10, 100 P.3d at 460; Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d at 31-32 (holding that ”Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case“); Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d at 42 (even assuming defendant‘s trial testimony did not qualify as admissions for sentencing purposes, trial court‘s enhancement of sentencing range without “separate and specific [jury] finding” that defendant had directed his conduct at a child was harmless error).
¶ 33 The evidence indisputably showed that two of the victims were minors, and their young ages were specifically referred to at sentencing without contradiction. Thus, “no reasonable jury could have concluded differently than the trial judge concluded.” Henderson, 209 Ariz. 300, ¶ 41, 100 P.3d at 923. And both the prosecutor and the trial court noted at sentencing, without objection or dispute, that at the time of the offenses Aleman had not only a prior DUI conviction, but also a pending DUI charge on which he later was convicted. Finally, none of the aggravating factors involved “an inherently subjective determination.” Timmons, 209 Ariz. 403, ¶ 14, 103 P.3d at 319; see also Oaks, 209 Ariz. 432, ¶ 23, 104 P.3d at 168.
¶ 34 In short, “we have no difficulty in concluding that on the record in this case no reasonable jury could have concluded differently than the trial judge concluded” on these other aggravating circumstances the trial court cited. Henderson, 209 Ariz. 300, ¶ 41, 100 P.3d at 923. And, although the trial court also found some mitigating factors and weighed them against the aggravating factors, based on the particular factors found and the slightly aggravated sentence the court imposed (a mere six months above the presumptive term), we conclude beyond a reasonable doubt that any alleged Blakely error “did not contribute to or affect the sentencing outcome here.” Resendis-Felix, 209 Ariz. 292, ¶ 11, 100 P.3d at 460. Thus, any alleged Blakely error was harmless beyond a reasonable doubt.
DISPOSITION
¶ 35 Aleman‘s convictions and sentences are affirmed.
¶ 36 I fully concur in the analysis of the motion-to-suppress issue and the ultimate disposition affirming Aleman‘s convictions and sentences. With respect to the Blakely issues, however, I would find no error, and therefore no need to engage in any harmless error review. Under Blakely, Aleman‘s prior conviction, by itself, authorized the aggravated range and permitted the trial court to impose a sentence anywhere up to the prescribed statutory maximum. State v. Estrada, 210 Ariz. 111, 108 P.3d 261 (App. 2005); State v. Chiappetta, 210 Ariz. 40, 107 P.3d 366 (App. 2005) (Espinosa, J.); see State v. Martinez, 209 Ariz. 280, 100 P.3d 30 (App. 2004) (one Blakely-compliant aggravator permits sentencing within expanded statutory range).
¶ 37 It also bears mention that the dissent‘s view that any Blakely error, by its very nature, is structural and, therefore, not subject to harmless error review has been rejected by both divisions of this court. See State v. Henderson, 209 Ariz. 300, 100 P.3d 911 (App. 2004); State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004). Furthermore, the notion that a sentencing factor admitted by a defendant is subject to independent review pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), needlessly elevates form over substance, particularly on the facts here. There is no question or doubt about the status of Aleman‘s suspended license, which the jury expressly found in its verdicts on the DUI charges, or his prior DUI conviction. Indeed, Aleman knowingly and with the assistance of counsel stipulated to the former and acknowledged the latter to the court at sentencing and does not contest those facts or raise the theory adopted by the dissent.
¶ 38 Our supreme court has said: “In cases in which a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, we will regard that factor as established.” State v. Ring, 204 Ariz. 534, 563, 65 P.3d 915, 944 (2003); see also State v. Finch, 205 Ariz. 170, 68 P.3d 123 (2003) (defendant‘s admission that he had shot victim to prevent his reporting the robbery fully established pecuniary gain motive); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App. 2004) (defendant‘s trial testimony constituted “facts ‘admitted by the defendant‘” for purposes of sentence aggravation comporting with Blakely); Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind. Ct. App. 2004) (defendant‘s statements at sentencing were facts admitted by him and were “exempt from the Apprendi/Blakely rule“); cf. State v. Montaño, 206 Ariz. 296, 77 P.3d 1246 (2003) (defendant‘s introduction of mitigation evidence relating to prisoner status was admission of in-custody status for sentence aggravation).
¶ 39 Moreover, it is difficult to comprehend how even a routine stipulation or admission by a defendant can provide an element of an offense or the factual basis for a finding of guilt and judgment of conviction, as occurred here and has occurred in countless other cases, yet would be deemed insufficient for sentencing purposes absent an independent Boykin advisory. It was no surprise to Aleman, nor has it ever surprised any criminal defendant assisted by competent counsel, that such admissions could or would affect their sentences. In short, the dissent‘s view has never been the law, and Blakely does not compel such an expansion of the Sixth Amendment.
¶ 40 Finally, even if harmless error analysis were appropriate or required, I agree that any alleged Blakely error here would be harmless beyond a reasonable doubt.
FLÓREZ, Presiding Judge, concurring in part and dissenting in part.
¶ 41 I concur with the decision to affirm Aleman‘s convictions. I also join Judge Pelander in rejecting the state‘s argument that, even when a trial court finds both aggravating and mitigating factors, a single Blakely-compliant or -exempt aggravating factor authorizes the court to find additional aggravating factors by reasonable evidence. I dissent, however, because I believe the trial court erred by considering at least one aggravating factor that was neither exempt from nor compliant with Blakely. Because I agree with Judge Eckerstrom‘s special concurrence in State v. Resendis-Felix, 209
¶ 42 I would find Blakely error because, in determining Aleman was eligible for an aggravated sentence, the court weighed at least one non-Blakely-exempt fact that was neither found by the jury beyond a reasonable doubt nor admitted by Aleman under circumstances I believe are implicitly required under Blakely and Apprendi—namely, that Aleman admitted the alleged fact in a knowing, intelligent, and voluntary waiver of his right to have it decided by a jury beyond a reasonable doubt. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (record in criminal trial must show that a guilty plea was knowingly, intelligently, and voluntarily made).
¶ 43 Apprendi made clear that, other than the fact of a prior conviction, a criminal defendant has the right to have a jury determine beyond a reasonable doubt “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. “Almost without exception, the requirement of a knowing and intelligent waiver has been applied ... to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854, 868 (1973); see also Boykin, and State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980) (extending knowing, voluntary and intelligent standard to all cases in which defendant waives right to a jury trial); State v. Conroy, 168 Ariz. 373, 375, 814 P.2d 330, 332 (1991) (“[T]he knowing, voluntary, and intelligent waiver standard articulated in Boykin applies to all waivers of a jury trial, for that standard applies to the waiver of any constitutional right.“). The rights Blakely and Apprendi protect fall within that protected category, and exist at the core of our criminal justice system. In Blakely, the Supreme Court expressed its “commitment” to insure that the right to a jury trial “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” 542 U.S. at —, 124 S.Ct. at 2538-39. I see no reason to carve out an exception to the general rule expressed in Schneckloth.
¶ 44 Therefore, although the majority correctly points out that Aleman, in the face of undisputed evidence presented at trial, conceded at sentencing that “he knew he was impaired and shouldn‘t have been driving” at the time of the accident, that statement cannot be considered an admission for the purpose of complying with Blakely. Had Aleman known the consequences of his statement—that the fact he “admitted” would be used against him to aggravate his sentence—and had he understood that he had a right to require the state to prove this fact beyond a reasonable doubt to a jury, he might well have not conceded it at sentencing.