State v. BrownState v. Brown
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¶ 1 In this special action, petitioner State of Arizona challenges two presentence orders the respondent judge entered in the underlying criminal case, in which real party in interest Jonathan McMullen pled guilty to reckless manslaughter. Based on
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and
Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
(Ring
II), the respondent judge first ordered that the state would have to prove, in a jury trial and beyond a reasonable doubt, any aggravating circumstances alleged pursuant to
¶2 This court subsequently ordered the state and McMullen to file supplemental memoranda on the constitutional issue, accepted jurisdiction of the special action, and vacated both of the respondent judge’s orders, with a decision to follow. This is that decision. We first note that special action jurisdiction is appropriate here because the state has no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Special Actions 1(a), 17B A.R.S.;
see
¶ 3 On the merits, we hold that
Apprendi
and its progeny neither compel a jury trial for determining aggravating circumstances in a noncapital case under
BACKGROUND
¶4 According to its petition for special action, the state charged McMullen, a minor,
¶ 5 The respondent judge initially deferred acceptance of the plea until the time of sentencing and sua sponte ordered a trial by jury for determination of any aggravating circumstances the state alleged under
¶ 6 On McMullen’s subsequent motion, the respondent judge entered another order declaring unconstitutional
DISCUSSION
¶ 7 Under
B. The upper or lower term imposed pursuant to ... [§ ] 13-702.01 ... or subsection A of this sеction may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge on any evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing. 3
(Emphasis added.) Subsection (C) of
¶ 8 5 Section 13-702.01, A.R.S., entitled “Exceptional circumstances; aggravation; mitigation,” provides in part:
A. Notwithstanding§ 13-702 , subsection A, if a person is convicted of a felony without having previously been convicted of any felony and if the court finds that at least two substantial aggravating factors listed in ’§ 13-702 , subsection C apply, the court may increase the maximum term of imprisonment otherwise authorized for that offense up to the following maximum terms:
1. For a Class 2 Felony 12.5 Years
B. Notwithstanding§ 13-702 , subsection A, if a person is convicted of a felony without having previously been convicted of any felony and if the court finds that at least two substantial mitigating factors listed in§ 13-702 , subsection D apply, the court may decrease the minimum term of imprisonment otherwise authorized for that offense down to the following minimum terms:
1. For a Class 2 Felony 3 Years
G. The upper or lower term imposed pursuant to this section may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge on any evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of these findings are set forth on the record at the time of sentencing.
¶9 In finding
No matter how artfully disguised, these “circumstances” or “sentencing factors” are FACTS. Thereforе, they are Elements of the Crime upon which the defendant must be sentenced. Every defendant has a right to trial by jury as to the existence of each element of the crime with which he is charged and for which the state seeks to punish him; and that jury must find those FACTS “Beyond a Reasonable Doubt.”
¶ 10 The respondent judge’s analysis and conclusion hinged largely on Apprendi and Ring II. In Apprendi the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory mаximum must be submitted 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. Likewise, in overturning Arizona’s former capital sentencing scheme, under which the death penalty could be imposed only on a judge’s post-trial finding of one or more aggravating factors, the Court in Ring II reiterated Apprendi’s thrust:
If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt. A defendant may not be “expose[d] ... to a pеnalty exceeding the maximumhe would receive if punished according to the facts reflected in the jury verdict alone.”
Ring II, 536 U.S. at 602, 122 S.Ct. at 2439-40, 153 L.Ed.2d at 572, quoting Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359, 147 L.Ed.2d at 450 (internal citation omitted; emphasis in Apprendi). Finding Apprendi and Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), “irreconcilable,” the Court in Ring II overruled Walton “to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576-77.
¶ 11 Arizona courts have addressed the scope and effect of
Apprendi
and
Ring II
in various contexts. For example, in
State v. Benenati,
203 Ariz. 235, 52 P.3d 804 (App.2002), this court held that
Apprendi
requires a jury to determine a defendant’s release status for purposes of imposing the mandatory, two-year sentence enhancement under
¶ 12 Similarly, in
Nichols,
201 Ariz. 234, ¶ 7, 33 P.3d 1172, ¶ 7, we held that “the fact of drug-sale income greater than $25,000 [under
¶ 13 The common thread in Benenati, Gross, and Nichols was that a judge’s factual finding could have impermissibly exposed the defendant to an enhanced sentence exceeding the maximum sentence authorized by the jury’s verdict and otherwise prescribed in the applicable, statutоry sentencing range. In other situations, however, Arizona courts have found no constitutional problem when a judge’s post-trial factual finding may have affected the sentence but did not expose the defendant to a sentence exceeding the prescribed statutory maximum for purposes of Apprendi
¶ 14 For example, in
State v. Tschilar,
200 Ariz. 427, 27 P.3d 331 (App.2001), Division One of this court concluded that
Apprendi
does not require a jury to determine whether the defendant had safely released a kidnapping victim for purposes of
¶ 15 In
State v. Flores,
201 Ariz. 239, 33 P.3d 1177 (App.2001), this court addressed the question of whether the defendant was entitled to have a jury determine his probation or parole status before he could be sen
tenced
¶ 16 The validity of the holdings in Flores and Cox was confirmed in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the Supreme Court held that Apprendi is not implicated if the court-found sentencing factor merely raises the mandatory minimum penalty. The principal question addressed in Harris was whether McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), survived Apprendi. 536 U.S. at 550, 122 S.Ct. at 2410, 153 L.Ed.2d at 533. In McMillan, the Court “sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm.” Harris, 536 U.S. at 550, 122 S.Ct. at 2410, 153 L.Ed.2d at 533.
¶ 17 In
Harris,
the Supreme Court upheld as constitutional a federal statute,
McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — and thus the domain of the jury— by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution.
536 U.S. at 557, 122 S.Ct. at 2414, 153 L.Ed.2d at 537-38.
¶ 18 As the Court in Harris also stated, “[t]hat a fact affects the defendant’s sentence, even dramatically so, does not by itself make it an element.” Id. at 566, 122 S.Ct. at 2419, 153 L.Ed.2d at 544. The Court explained:
Read together, McMillan and Apprendi mean that those fаcts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion— and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings. It is critical not to abandon that understanding at this late date. Legislatures and their constituents have relied upon McMillan to exercise control over .sentencing through dozens of statutes like the one the Court approved in that ease.
Id. at 567, 122 S.Ct. at 2419, 153 L.Ed.2d at 544.
¶ 19 Against this legal backdrop, we find two significant flaws in the respondent
¶ 20 Harris, unlike this case, involved a judge’s factual finding that raised the mandatory minimum sentence. Despite that distinction, however, Harris supports the principle that a judge may constitutionally make factual findings affecting, upward or downward, the ultimate sentencе that is authorized by the jury’s verdict, as long as the factual findings do not expose the defendant to an enhanced sentence beyond the maximum sentence prescribed in the applicable statutory sentencing range. As noted in ¶ 10 above, that latter possibility clearly was the constitutional concern in Apprendi and Ring II. See Apprendi, 530 U.S. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449 (“[Njothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.”). See also Sattazahn v. Pennsylvania, 537 U.S. 101, _, 123 S.Ct. 732, 739, 154 L.Ed.2d 588, 598-99 (2003) (“Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact — no matter how the State labels it — constitutes an element, and must be found by a jury beyond a reasonable doubt.”) (emphasis added); cf. United States v. Tighe, 266 F.3d 1187, 1192 (9th Cir.2001) (“A fact that is used to increase the maximum statutory penalty to which a defendant is exposed raises an entirely different set of constitutional concerns than a fact that merely affects where a sentence is fixed within an undisputed statutorily mandated rаnge.”).
¶ 21 Harris, decided the same day as Ring II, made clear that “[¡Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.” Harris, 536 U.S. at 558, 122 S.Ct. at 2415, 153 L.Ed.2d at 538. And, as noted in Harris, facts that merely affect sentencing within a statutory range, “though stigmatizing and punitive, have been the traditional domain of judges.” Id. at 560, 122 S.Ct. at 2416, 153 L.Ed.2d at 539. According to the Court, “[tjhere is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of [such facts] as the elements of the crime.” Id. In sum,
[w]hether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt____The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from [the grand and petit] juries — and without contradicting Apprendi
Id. at 565, 122 S.Ct. at 2418, 153 L.Ed.2d at 543.
¶ 22 Second, and perhaps more importantly, the respondent judge’s rulings and McMullen’s entire argument rest on a fundamentally flawed premise — that § 13-701 establishes a five-year term as the “maximum” sentence for a first offense, class two felony, such as the reckless manslaughter charge to which McMullen pled guilty. 5 Starting with that premise, the judge concluded that exposing McMullen to a sentence that might exceed that five-year “maximum,” based on the judge’s (rather than a jury’s) finding of aggravating circumstances, is unconstitutional under Apprendi and Ring II. Again, we disagree with the judge’s conclusion because we reject its underlying premise.
¶ 23 In
Apprendi
“New Jersey’s ‘hate crime enhancement ]’... doubled [the defendant’s] maximum authorized sentence,” and
¶ 24 In contrast, we have neither been cited to nor found any Arizona cases that have construed the sentence specified in § 13-701 as the “maximum” sentence for a noncapital offense or otherwise equated the two. Rather, Arizona courts consistently have referred to and treated the sentence prescribed in § 13-701 as the presumptive, not maximum, sentence.
See, e.g., State v. DePiano,
187 Ariz. 27, 29, 926 P.2d 494, 496 (1996) (presumptive prison term determined by § 13-701);
State v. Solano,
150 Ariz. 398, 399, 724 P.2d 17, 18 (1986) (§ 13-701 sets forth presumptive sentences for felony offenses).
7
So, too, do various Arizona statutes.
See, e.g.,
¶25 Thus, the five-year prison term prescribed in § 13-701 for a first offense, class two felony is merely the presumptive sentence that typically would apply absent any evidence of aggravating or mitigating circumstances or if the trial court were to find such evidence is equally balanced. For approximately a quarter century, Arizona’s statutory sentencing scheme has prescribed sentencing
¶ 26 For the offense of reckless manslaughter, the crime to which McMullen pled guilty, the applicable statutes set a minimum prison term of three years, a maximum term of 12.5 years, and a presumptive term of five years.
CONCLUSION
¶27 Unlike
Apprendi
and
Ring II,
this case does not presеnt a situation in which a judge-made factual finding, not found by the jury or admitted in a plea agreement, will expose the defendant to a sentence exceeding the statutory maximum. Regardless of how many aggravating circumstances the respondent judge might find under
DISPOSITION
¶ 28 The respondent judge’s orders of December 12, 2002, and January 27, 2003, are vacated. Further proceedings consistent with this opinion may proceed in the trial court.
ESPINOSA, C.J. and DRUKE, J. (Retired), concurring.
Notes
. Although the respondent judge had set an aggravation/mitigation hearing before a jury, sua sponte he stayed that hearing and any further proceedings pending appellate disposition of the issues raised in this special action.
. Under his plea agreement, McMullen expressly waived “his right to jury trial.” The respondent judge found, however, that McMullen had waived a trial by jury only on the substantive offense of reckless manslaughter and had never intended “to waive his right to trial by jury on the facts in aggravation.” The state does not challenge that finding now and also conceded below that McMullen had not “given ... up” any right he might have to a jury trial on any alleged aggravating circumstances. McMullen waived any right to a jury trial on whether mitigating circumstances existed under
. Because the offense to which McMullen pled guilty involved the discharge of a deadly weapon and the intentional or knowing infliction of serious physical injury,
.
. We note, however, that at the hearing that resulted in the respondent judge’s first order, he stated several times that reckless manslaughter “carries a
presumptive
sentence of five years.” (Emphasis added.) But in his subsequent orders, the judge characterized the five-year term as the “maximum” sentence, which could be exceeded only if he found aggravating circumstances under
. We observe that the Supreme Court in Ring II essentially adopted our supreme court’s explanation of Arizona’s former capital sentencing system. 536 U.S. at 597, 122 S.Ct. at 2437, 153 L.Ed.2d at 569. In State v. Ring, 200 Ariz. 267, ¶ 42, 25 P.3d 1139, ¶ 42 (2001) (Ring I), our supreme court stated:
In Arizona, a defendant cannot be put to death solely on the basis of a jury’s verdict, regardless of the jury’s factual findings. The range of punishment allowed by law on the basis of the verdict alone is life imprisonment with the possibility of parole or imprisonment for “natural life” without the possibility of release.
Thus, aside from a death sentence based on the trial court’s post-trial findings, Arizona‘s former scheme prescribed a sentencing “range” for a first-degree murder conviction of natural life or life with the possibility of parole after either twenty-five or thirty-five years, depending on the victim’s age.
See
former
.
See also State v. Ramos,
133 Ariz. 4, 7, 648 P.2d 119, 122 (1982) (“The statutorily presumptive term of imprisonment for the crime for which appellant was found guilty is five years.
. The right to a jury trial under Arizona’s Constitution, article II, §§ 23, 24, “is substantially the same as that contained within the Sixth Amendment.” Rothweiler v. Superior Court, 1 Ariz.App. 334, 336, 402 P.2d 1010, 1012 (1965), aff‘d, 100 Ariz. 37, 410 P.2d 479 (1966).
. The respondent judge’s ruling that the state must establish any aggravating circumstances alleged under