STATE of Arizona, Appellee, v. George Melendez ESTRADA, Appellant.
No. 1 CA-CR 03-0914.
Court of Appeals of Arizona, Division 1, Department E.
March 4, 2005.
108 P.3d 261
As Amended March 10, 2005.
Awarding Attorneys’ Fees and Costs Does Not Violate Eighth Amendment
¶ 42 Finally, Appellant contends that the award of attorneys’ fees and costs violates the Excessive Fines Clause of the Eighth Amendment. We disagree.
¶ 43 As previously stated, Bajakajian sets forth the factors necessary for an award to be deemed as punitive under the Excessive Fines Clause. 524 U.S. at 328-44, 118 S.Ct. 2028. We conclude that the award of attorneys’ fees and costs, based upon Appellant‘s liability under the statute, derives from her participation in the enterprise, and not from her criminal culpability. See id.; see generally
¶ 44 Furthermore, as discussed above, Bajakajian expanded the exception to the Excessive Fines Clause to include civil sanctions serving remedial purposes and linked to the amount of the sanction. Id. at 342-43, 118 S.Ct. 2028. The Supreme Court, in Austin v. United States, considered these sanctions a form of “liquidated damages.” 509 U.S. 602, 621, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Both cases relied upon One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), signaling that sanctions based upon compensation for social harm will not be considered to be punishment for a criminal offense. See Bajakajian, 524 U.S. at 343, 118 S.Ct. 2028; Austin, 509 U.S. at 621, 113 S.Ct. 2801. Because the award of attorneys’ fees and costs here was based upon the actual expenditure of government resources, it was proportional and cannot be considered to be punishment. See Bajakajian, 524 U.S. at 343, 118 S.Ct. 2028; see also United States v. Philip Morris USA, 310 F.Supp.2d 58 (D.D.C.2004)(holding that a $289 billion civil racketeering suit against cigarette manufacturers for disgorgement of sale proceeds does not implicate the Excessive Fines Clause).15
CONCLUSION
¶ 45 For all the foregoing reasons, we affirm the trial court‘s judgment.
WINTHROP, P.J. and KONGABLE, Judge Pro Tempore *, concurring.
James J. Haas, Maricopa County Public Defender, By Susan L. Corey, Deputy Public Defender, Phoenix, for Appellant.
HALL, J.
OPINION
¶ 1 The issue presented on appeal is whether the Sixth Amendment‘s jury-trial guarantee 1 as interpreted by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), entitles a defendant whose prior convictions constitute an aggravating circumstance to jury findings on the existence of any additional aggravating factors. We conclude that, under Arizona‘s noncapital sentencing scheme, a defendant is not constitutionally entitled to jury findings in such a case.2
FACTUAL BACKGROUND
¶ 2 On April 22, 2003, the victim was home alone when she heard a knock at her front door. She did not recognize the man at the door and did not open it. The man, later identified as Estrada, sat in a chair on the front porch and began reading a newspaper. Periodically, he would get up and knock on the door, look into the window, and shake the door knob. The victim surreptitiously watched Estrada from inside the house but did not reveal her presence.
¶ 3 After repeating this pattern for approximately half an hour, Estrada went to the side of the house. Becoming increasingly alarmed, the victim called the police. Estrada tried unsuccessfully to open the door of her truck and then climbed atop some wooden pallets near her fence and whistled. Bolt cutters were handed over the fence. Estrada used the bolt cutters to cut the lock on the back gate and another lock on the gate leading to the back alley where a white truck was parked. Estrada‘s accomplice entered the backyard through the alley gate. Estrada then used the bolt cutters to cut the lock securing the victim‘s lawn mower to a wooden post and took the lawn mower.
¶ 4 Estrada came to the victim‘s back door and unsuccessfully attempted to open the sliding door lock. The victim became in-
¶ 5 By this time, two Phoenix Police Officers had responded to the scene and had just come upon the entrance to the alley when the truck appeared. The officers ordered the men out of the truck and put them under arrest. At trial, both officers identified Estrada as one of the occupants of the truck.
¶ 6 The officers found a padlock with its clasp cut on the front seat of the truck and the lawn mower in the bed of the truck. One of the officer‘s found bolt cutters in the victim‘s backyard, a broken chain that had secured the front gate, a broken lock on the ground near the back gate, and a cut cable that had been used to tether the lawn mower to the post.
¶ 7 Later that morning, the victim identified Estrada and his accomplice as the men she had seen at her house. She was able to make the identification based upon the clothing both men were wearing.
¶ 8 Both men were charged with one count of burglary in the third degree, a class 4 felony, and one count of possession of burglary tools, a class 6 felony, and tried separately. The jury convicted Estrada on both counts and the court sentenced him to aggravated prison terms of 11 years and 4 years, respectively, to be served concurrently. Estrada timely appealed.
DISCUSSION
I.
¶ 9 Estrada claims that the aggravated sentences imposed by the trial court violate Blakely. Because he had multiple historical prior felony convictions and committed the present offenses while on probation, see
¶ 10 Estrada contends that the judicial determination of aggravating circumstances denied him the jury-trial guarantee of the Sixth Amendment that “every defendant [has] the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” Blakely, 542 U.S. at —, 124 S.Ct. at 2543. In Blakely, the Supreme Court held that a Washington State statute that authorized a trial judge to impose a sentence above the “standard range” based on facts found by the court at sentencing by a preponderance of evidence violated Blakely‘s federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence: “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. at —, 124 S.Ct. at 2537 (citations omitted).
¶ 11 However, one of the aggravating factors found by the trial court—Estrada‘s history of prior felony convictions—is exempt from the Blakely rule: This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “Other 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.” Id. at —, 124 S.Ct. at 2536 (emphasis added). See United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (citing widespread agreement among federal circuit courts that Blakely preserves the exception for the fact of a prior conviction); State v. Cons, 208 Ariz. 409, 413, ¶ 10 n. 3, 94 P.3d 609, 613 n. 3 (App.2004). Furthermore, because several of Estrada‘s convictions occurred within ten years preceding the date of the current offenses, the court was required to consider them as aggravating factors. See
¶ 12 Thus, it is clear that had the trial court restricted its finding of aggravating circumstances to Estrada‘s prior convictions, Estrada could only ask us to review his sentences for an abuse of discretion by the trial court. See State v. Long, 207 Ariz. 140, 147, ¶ 37, 83 P.3d 618, 625 (App.2004) (“If sufficient and appropriate aggravating circumstances exist to justify imposition of an aggravated sentence, we will find no abuse of discretion in the trial court‘s decision to impose such a sentence.“). The question therefore presented is whether Blakely nonetheless required that the additional aggravating factors be submitted to a jury and proved beyond a reasonable doubt because they were facts that “increase[d] the penalty for a crime beyond the prescribed statutory maximum.” Estrada did not raise this claim in the trial court; therefore, we review for fundamental error. See State v. Henderson, 209 Ariz. 300, 302, ¶ 1, 100 P.3d 911, 913 (App.2004) (reviewing claimed Blakely violation for fundamental error); State v. Martinez, 209 Ariz. 280, 282, ¶ 1, 100 P.3d 30, 32 (App.2004) (same) (petition for review granted on February 8, 2005).5
¶ 13 Blakely describes the term “prescribed statutory maximum” as: the maximum sentence a judge may impose solely on the facts reflected in the jury verdict or admitted by the defendant .... 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. 542 U.S. at —, 124 S.Ct. at 2537. Under Arizona‘s statutory scheme, Estrada‘s criminal history constituted an aggravating circumstance that—without the need for any additional jury findings—exposed him to being sentenced to 12 and 4.5 years, respectively, based solely on the facts reflected in the jury verdicts. Because the sentences imposed by the trial court did not exceed these maximums, the three additional aggravating circumstances found by the trial court were not facts legally essential to the punishment; thus, Estrada had no legal right to have a jury determine their existence. See id. at —, 124 S.Ct. at 2543 (“[E]very defendant has the right to insist that the prosecutor prove to the jury all facts legally essential to the punishment.“).
¶ 14 Instead, given the existence of Estrada‘s Blakely-exempt prior convictions,
¶ 15 Our conclusion is supported by Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the United States Supreme Court considered the related question whether a federal statute that treated the “brandishing” of a firearm during the commission of a crime 7 as a sentencing factor requiring an increase in the minimum sentence was actually a separate crime that must be submitted to a jury and proved beyond a reasonable doubt. Reject-
¶ 16 In language later echoed in Blakely, the Court further explained that the “elements” to which the constitutional protections attach consist of “facts legally essential to the punishment to be inflicted.” Id. at 561, 122 S.Ct. 2406 (citations omitted). Because the minimum could have been imposed “with or without the factual finding; the finding [was] not ‘essential’ to the defendant‘s punishment.” Id. Likewise, Estrada‘s constitutional rights were not violated because the trial court had discretion to impose aggravated sentences “with or without” the additional factual findings. See also Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (“Capital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.“) (emphasis added).
¶ 17 In Martinez, another panel of this court recently reached a similar conclusion
Because the jury found at least one aggravating factor, defendant was eligible to receive an aggravated sentence, and the trial court‘s weighing of additional aggravating and mitigating circumstances to determine the appropriate sentence within the aggravated range was permissible. Put another way, the jury having found the existence of one aggravating factor, its verdict expanded the sentencing range and the scope of the trial court‘s sentencing discretion. When one aggravating factor is authorized by the jury, Blakely is satisfied. 209 Ariz. at 284, ¶ 16, 100 P.3d at 34.
¶ 18 As did the panel in Martinez, we reject the argument that State v. Ring, 204 Ariz. 534, 561-62, ¶¶ 87-90, 65 P.3d 915, 942-43 (2003) (Ring III), requires that all aggravating factors in noncapital cases be found by a jury. It is true that in Ring III, our supreme court declined to adopt a “narrow” reading of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II) that would have permitted a judge in capital cases to find the existence of additional aggravating factors so long as there was at least one aggravating factor either implicitly found by the jury or not subject to the Ring II analysis: “[W]e conclude that Ring II requires a jury to consider all aggravating factors urged by the state and not either exempt from Ring II, implicit in the jury‘s verdict, or otherwise established beyond a reasonable doubt.” 204 Ariz. at 562, ¶ 88, 65 P.3d at 943.
¶ 19 The court went on to explain that our legislature has always assigned to one fact-finder the important tasks of determining and weighing the facts in capital cases:
In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. Id. at 562, ¶ 89, 65 P.3d at 943.
These concerns, however, are presently inapplicable to Arizona‘s noncapital sentencing scheme, which, interpreted in light of Blakely, assigns complementary roles to both jury and judge in the sentencing process:
There is nothing in the plain language of
A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing inA.R.S. § 13-702(B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, andA.R.S. § 13-702(B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated inA.R.S. § 13-702 .
State v. Superior Court (Tinnell), 209 Ariz. 195, 197, ¶ 7, 98 P.3d 881, 883 (App.2004). See also Apprendi, 530 U.S. at 490-91 n. 16, 120 S.Ct. 2348 (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation” and that judicial fact-finding of mitigating circumstances does not “expose[] the defendant to a deprivation of liberty greater than that authorized by the verdict“); Strong v. State, 817 N.E.2d 256, 262 (Ind.App.2004) (“[W]e do not discern from the Blakely decision that the trial court‘s sentencing authority of balancing and weighing mitigating and aggravating circumstances has been usurped.“). Accordingly, Ring III‘s requirement that additional aggravating factors must be found by a jury is inapplicable in the context of noncapital sentencing. But see State v. Alire, 209 Ariz. 517, 105 P.3d 163 (App.2005); State v. Munninger, 209 Ariz. 473, 104 P.3d 204 (App.2005); State v. Timmons, 209 Ariz. 403, 103 P.3d 315 (App.2005) (all rejecting the Martinez holding that a trial court‘s reliance on one Blakely-compliant aggravating factor permits the court to consider additional aggravating factors, not found by a jury, and weigh them against
II.
¶ 20 The dissent warrants a response. Our colleague concurs with the panel in Munninger in rejecting the principle that we, and the Martinez panel, find controlling: The existence of a single Blakely-compliant or (as here) Blakely-exempt aggravating factor raises the sentencing ceiling to the legislatively prescribed maximum, thereby permitting (indeed, requiring pursuant to
¶ 21 That the Munninger panel‘s and the dissent‘s overly broad interpretation of the scope of the Apprendi/Blakely rule misses the mark is made clear by the recent United States Supreme Court decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applying Blakely to the Federal Sentencing Guidelines (Guidelines). After hearing evidence that Booker had 92.5 grams of crack cocaine in his duffel bag, the jury convicted him of possession with intent to distribute at least 50 grams of cocaine base (crack) in violation of
¶ 22 Later, Justice Stevens, writing the lead dissent to the remedial opinion (joined in by Justice Souter and in which Justice Scalia joined in relevant part), in criticizing the remedial majority‘s excision of the mandatory provisions in the Guidelines as unnecessary, emphasized that applying Blakely to the Guidelines as written would require only “limited jury factfinding,” id. at —, 125 S.Ct. at 780 n. 10, in part because “judicial factfinding to support an enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” Id. at —, 125 S.Ct. at 775 (emphasis in original). Thus, as Justice Stevens pointed out, the Sixth Amendment violation in Booker could have been avoided entirely had the judge‘s finding that Booker possessed an additional 566 grams of cocaine been made by the jury, which would have authorized a Guidelines sentence anywhere between 324 and 405 months. Id. at —, 125 S.Ct. at 772. In that event, “[r]elying on his own appraisal of the defendant‘s obstruction of justice, and presumably any other information in the presentence report, the judge would have had discretion to select any sentence within that range.” Id.12
¶ 23 Likewise, because Estrada‘s prior convictions exposed him to an aggravated sentence, “the judge [] had discretion to select any sentence within that range.” In other words, as stated in Martinez in the context of a Blakely-compliant finding by a jury, the “verdict expanded the sentencing range and the scope of the trial court‘s sentencing discretion.” 209 Ariz. at 284, ¶ 16, 100 P.3d at 34. By their contrary interpretations, both the panel in Munninger, 209 Ariz. at 479, ¶ 16, 104 P.3d at 210 (“[W]e disagree that a single properly found aggravating factor satisfies Blakely when the sentence also rests on other aggravating factors not found by a jury.“) and the dissent, infra ¶ 45 (“The rule adopted by the majority today emasculates the principle that all factors used to aggravate a sentence beyond that inherent in the jury‘s verdict, other than prior convictions or facts admitted by the defendant, must be found by the jury.“), place themselves at odds with the Supreme Court Justices who authored the opinions (Apprendi and Blakely) upon which they rely. See also Booker, — U.S. at —, 125 S.Ct. at 798 (Thomas, J., dissenting from remedial majority) (“[Rule 32(c)(1) 13] is valid when it requires the sentencing judge, without a jury, to resolve a factual dispute in order to decide where within the jury-authorized Guidelines range a defendant should be sentenced.“).
¶ 24 Fortunately, the surgery performed by Booker‘s remedial majority in transforming the Guidelines from a mandatory to an advisory system (undertaken to “maintain the judicial factfinding that Congress thought would underpin the mandatory Guidelines system,” — U.S. at —, 125 S.Ct. at 757) is probably unnecessary in Arizona because the sentencing scheme established by
¶ 25 Furthermore, in Arizona, unlike the system of overlapping “bumps” incorporated in the Guidelines, the existence of a single aggravator authorizes a judge (in his or her discretion) to impose a sentence up to the statutory maximum. Supra ¶ 11. Therefore, assuming the presence of one Blakely-exempt or Blakely-compliant factor, superimposing Blakely onto the current Arizona statutory scheme “preserve[s] Sixth Amendment substance” by guaranteeing “in a meaningful way [] that the jury [] still stand[s] between the individual and the power of the government,” Booker, — U.S. at —, 125 S.Ct. at 752 (Stevens, J., merits majority), while also largely preserving the traditional ability of a trial court to make sentencing determinations based on its assessment of all relevant information regarding the defendant and the crime. Conversely, the Munninger panel‘s and the dissent‘s approach would substantially limit a trial judge‘s sentencing discretionid. at —, 125 S.Ct. at 774,
¶ 26 In summary, Estrada‘s prior felony convictions, which are Blakely-exempt, raised the ”Blakely” sentencing ceiling for his convictions for the offenses of burglary in the third degree and possession of burglary tools to 12 and 4.5 years, respectively. Hence, the trial court did not violate Estrada‘s Sixth Amendment jury-trial guarantee when it considered (and properly found) 14 additional aggravating factors not found by the jury, weighed them against the sole mitigating circumstance, and imposed aggravated sentences within the authorized ranges.
CONCLUSION
¶ 27 For the reasons set forth in this Opinion we affirm Estrada‘s sentences.
TIMMER, J., concurring.
KESSLER, Judge, dissenting.
¶ 28 I respectfully dissent on the majority‘s affirming the sentence imposed in this case. Consistent with the holdings of other panels of this Court,15 I would hold that the mere presence of an aggravating factor that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not require to be found by a jury (”Blakely-exempt factors“) or the presence of one aggravating factor found by the jury (”Blakely-compliant factors“) does not trump a defendant‘s constitutional right to have a jury determine all other factors (”Blakely-violative factors“) used to aggravate a sentence beyond that warranted by the jury‘s verdict.16 Accordingly, because the error here was reversible, I would remand to the superior court to determine whether it would have imposed the same sentence based solely on the Blakely-compliant and -exempt factors. If not, then the presence of other Blakely-violative factors must be found by a jury if an aggravated sentence is to be imposed.
¶ 29 I conclude we are bound by State v. Ring, 204 Ariz. 534, 561-62, ¶¶ 87-90, 65 P.3d 915, 942-43 (2003) (Ring III), which rejected the argument the majority adopts here. I also base my conclusion on: (1) the literal language of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely; (2) the United States Supreme Court‘s application of that language which I read to effectively reject the position taken by the majority in this case; (3) the rejection of the “single factor rule” by other courts. See People v. White, 124 Cal.App.4th 1417, 22 Cal.Rptr.3d 586 (2004); and (4) the philosophy and purpose underlying the rulings in Apprendi and Blakely. I also disagree with the majority that the recent deci-
Ring III
¶ 30 I begin with Ring III. There, the State made the same argument it makes here. It contended that because there was the presence of an aggravator which did not have to be found by the jury under Apprendi17 and which increased the statutory maximum, the superior court was free to find additional aggravating factors.18 The court in Ring III cited two independent reasons for rejecting that argument. First, it held that while:
[a] narrow reading of Ring II [Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] may permit a judge to decide the existence of additional aggravating factors in the circumstances described by the State ... we conclude that Ring II requires a jury to consider all aggravating factors urged by the state and not either exempt from Ring II, implicit in the jury‘s verdict, or otherwise established beyond a reasonable doubt.
Ring III, 204 Ariz. at 561-62, ¶¶ 87-88, 65 P.3d at 942-43. Thus, the court rejected the “narrow” reading of the Apprendi/Blakely rule the majority adopts here.
¶ 31 Our supreme court cited “another factor” for rejecting the “single factor rule“: in the capital sentencing scheme, the statutes assigned both the duty to consider aggravating and mitigating factors and to balance those factors to the jury. The court held it did not want to speculate how the State‘s proposed argument would impact that process. 204 Ariz. at 562, ¶ 89, 65 P.3d at 943. The majority conflates this second reason for rejecting the “single factor rule” with the first reason stated in Ring III.
¶ 32 Consistent with the above reasoning in Ring III, our supreme court has held that it will reverse death sentences in which the
Apprendi and Blakely
¶ 33 The United States Supreme Court‘s language in Apprendi and Blakely also support rejecting the rule adopted by the majority. The Court stated in Apprendi that “any” and “all” facts, other than a prior conviction, had to be found by a jury. Thus, for example, the Court stated:
The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
530 U.S. at 482-83, 120 S.Ct. 2348 (emphasis added in part). Similarly, the Court stated: “[b]ut practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond a reasonable doubt.” Id. at 483-84, 120 S.Ct. 2348 (emphasis added). Driving this point home a third time, the Court summarized its holding:
Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”
Id. at 490, 120 S.Ct. 2348 (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1997)) (emphasis added).
¶ 34 The Court continued with this principle when it applied Apprendi in Blakely. The Court began its analysis by clearly stating, “[t]his case requires us to apply the rule we expressed in Apprendi ... ‘[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.‘” Blakely, 542 U.S. at —, 124 S.Ct. at 2536 (emphasis added). The Court repeated this point when it held:
Our precedents make clear, however, 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 .... 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, that jury has not found all the facts “which the law makes essential to the punishment” ... and the judge exceeds his proper authority.
Id. at 2537, 124 S.Ct. 2531 (citations omitted) (emphasis added in part). Thus, the key to Apprendi and Blakely is that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, — U.S. —, —, 125 S.Ct. 738, 756, 160 L.Ed.2d 621, — (2005).
¶ 35 As the Court made clear in both Apprendi and Blakely, the jury must find the presence of aggravating factors other than prior convictions, facts admitted by the defendant or facts inherent in the jury verdict. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; Blakely, 542 U.S. at —, 124 S.Ct. at 2537. If the Court had meant to state that the presence of any one of those factors eliminated the need for the jury to make additional findings, it would have done so. But it did not. As shown by the following comparison, the rule the majority adopts today would rewrite the fundamental holding in Apprendi.
| Language in Apprendi | Hypothetical Language if “Single Factor Rule” Applied |
|---|---|
| “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum [the maximum based on the jury verdict] must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). | Unless there is a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum [the maximum based on the jury verdict] must be submitted to a jury, and proved beyond a reasonable doubt. |
The Supreme Court‘s Treatment of the “Single Factor” Argument
¶ 36 In none of the Apprendi-line of cases has the United States Supreme Court dealt directly with the issue of whether the presence of one Blakely-compliant or -exempt factor permits the trial court to find other, Blakely-violative factors to aggravate the sentence beyond that authorized by the verdict. However, the Court appears to have rejected a type of “single factor rule” in Apprendi and Ring II. Apprendi and the
¶ 37 The state argued that even if the judge had not found racial bias, the twelve-year sentence was within the statutory maximum because without enhancement, the trial judge could have sentenced Apprendi to consecutive terms amounting to twelve years. The Court expressly rejected that argument:
[C]ertain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge‘s finding of racial bias, the judge could have imposed consecutive sentences [on the two second-degree counts] that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi‘s actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty .... The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. The finding is legally significant because it increased—indeed, it doubled—the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no relevance to our disposition than the dismissal of the remaining 18 counts.
Id. at 474, 120 S.Ct. 2348 (emphasis added).
¶ 38 Similarly, the Court explained in Ring II that the trial judge had imposed the death penalty because he found that the murder had occurred for pecuniary gain and the crime was heinous, cruel or depraved. After finding that Apprendi applied, the Court dealt with the State‘s argument that any error was harmless “because a pecuniary gain finding was implicit in the jury‘s guilty verdict.” 536 U.S. at 609 n. 7, 122 S.Ct. 2428. Instead of characterizing the presence of that one factor as precluding an Apprendi analysis as to other factors, the Court stated it would not address the argument because it left the issue of harmlessness to the lower courts to rule on in the first instance. Id. Thus, such an argument was error—the question left unanswered was whether it was harmless error.
¶ 39 The above argument by the state in Apprendi and Ring II is similar in principle to the rule adopted by the majority in this case. Based on any one fact necessarily found in the jury verdict or admitted to by the defendant, the ultimate sentence is within the “statutory maximum” permitted by statute. It is a short step from the argument rejected in Apprendi and Ring II to the majority‘s position here that once any one Blakely-compliant or -exempt factor is present the statutory maximum has been raised and Blakely no longer applies. The Court rejected that type of reasoning in Apprendi and Ring II by focusing on the increase in the maximum sentence based on the judge‘s finding of a Blakely-violative factor regardless of the ultimate range which could have been imposed based on the guilty plea or the
People v. White
¶ 40 At least one court in another jurisdiction has also rejected the rule adopted by the majority today. In White, the California Court of Appeal explained that several panels of the California Court of Appeal had held Blakely did not apply to California‘s determinate sentencing scheme. White, 124 Cal.App.4th at 1434-38, 22 Cal.Rptr.3d 586. The court further noted that two panels of that appellate court had held once there is one aggravating factor not requiring a jury finding, Blakely did not apply to any other factors.20 White rejected that argument because it conflicted with the Supreme Court‘s application of the Apprendi rule. Id. at 1439-40, 22 Cal.Rptr.3d 586. As the court explained, “[t]he fact that there were other ways for the judge to have arrived at the same or a higher sentence ... [was] of ‘no relevance.‘” Id. at 1439, 22 Cal.Rptr.3d 586 (quoting Apprendi, 530 U.S. at 474, 120 S.Ct. 2348). Applying that reasoning, the court in White held:
In view of the Supreme Court‘s assertion that hypothetical alternative scenarios should not be used as after-the-fact rationalizations for impermissible sentencing choices, we must respectfully disagree with the courts in Jaffe and Barnes to the degree that they support a conclusion that the existence of a single aggravating factor found by the jury or admitted by the defendant avoids Blakely and automatically justifies an upper term sentence. The relevant question is not whether we can conceive of a legitimate way for the trial court to have arrived at the 13-year sentence imposed on appellant. The question is whether the trial court would have exercised its discretion to impose the upper term ... if it knew that one or more of the factors relied on were invalid.
Id. at 1439-40, 22 Cal.Rptr.3d 586.
Philosophical Underpinnings of Blakely
¶ 41 The rule adopted by the majority also conflicts with the philosophical underpinnings of Blakely. As the Supreme Court made clear in both Apprendi and Blakely, the basis for requiring a jury to find any and all contested aggravating factors, other than prior convictions, is in the historical notions imbedded in the Sixth Amendment to protect the people from overreaching and arbitrary sentences sought by the state and imposed by judges. Apprendi, 530 U.S. at 476-81, 120 S.Ct. 2348; Blakely, 542 U.S. at —, 124 S.Ct. at 2538-40. By ensuring that only a jury could find facts which might increase the sentence otherwise permitted by a verdict, the Court explained:
“[T]o guard against a spirit of oppression and tyranny on the part of the rulers,” and “as the great bulwark of [our] civil and political liberties,” ... trial by jury has been understood to require that “the truth of every accusation ... should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant‘s] equals and neighbours ....”
Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (citation omitted) (emphasis deleted).
¶ 42 The “single factor rule” runs contrary to this philosophical underpinning. The need for such protection is not a mere formality. Blakely seeks to ensure that the government‘s power to deprive citizens of liberty, whether it be wielded by the executive or judicial branches of government, be limited by the bulwark of a jury of one‘s peers. Booker, — U.S. at —, 125 S.Ct. at 753 (“The Framers of the Constitution understood the threat of ‘judicial despotism’ that
¶ 43 The effect of the majority‘s decision here and in Martinez directly conflicts with the philosophical and historical underpinnings of Blakely. Under the rule adopted by the majority here, if a single Blakely-exempt or -compliant factor was present, which factor might not justify anything more than a slight increase in the sentence authorized by the jury, the trial judge could consider innumerable other aggravating factors which were Blakely-violative to impose the maximum sentence authorized by our statutes. For example, if the defendant admitted he had committed a class five felony ten years before and the judge indicated she would not impose more than one-day in excess of the sentence authorized by the verdict, under the “single factor rule” the judge could then consider all other factors listed in
The Majority‘s Arguments
¶ 44 The majority, citing Martinez, 209 Ariz. at 285, ¶ 19, 100 P.3d at 35, reasons that the “single factor rule” violates neither Ring III nor Blakely. I cannot agree on either basis. As to Ring III, the majority appears to conflate the two independent reasons given for rejecting the “single factor rule” in the capital punishment context. That analysis ignores that in Ring III, our supreme court stated that the division of authority between the trial court and the jury in the capital context was merely “another factor” leading it to reject the “single factor rule.” The first factor, that it simply did not agree with the “narrow” reading of Ring II proposed by the State, independently requires us to reject the “single factor rule.” When dealing with the import of the constitutional right to have a jury find the factors to sentence a defendant, I see no reason to apply a different rule in the non-capital context.
¶ 45 The majority‘s analysis also fails to recognize that there should be no difference in treatment between capital and noncapital cases. As the court held in Timmons, 209 Ariz. at 406-07, ¶¶ 9-12, 103 P.3d at 318-19,
¶ 46 The majority also contends that the rule it adopts does not violate Blakely because once any aggravating factor is properly found, the definition of the sentencing range is increased. Accordingly, an “aggravated” sentence which then may be imposed does not exceed the “maximum sentence” the judge may impose without making additional findings beyond those made by the jury. That analysis allows the tail to wag the dog. See Blakely, 542 U.S. at —, 124 S.Ct. at 2539 (allowing a legislature to establish legally essential sentencing factors within limits amounts to allowing the tail to wag the dog of the substantive offense). Instead of complying with the principle underlying Apprendi and Blakely that the court cannot impose a sentence based on any Blakely factors not found by the jury, the majority‘s rule allows a court to impose just such a sentence by redefining what the statutory maximum sentence is.
¶ 47 Moreover, the majority‘s reasoning is impractical. It relies on the idea that Blakely only applies to any fact “legally essential” to the punishment. According to the majority, any one aggravator is all that is “legally necessary” to impose any aggravated sentence because that aggravator, in the absence of a mitigator, allows a maximum sentence.
¶ 48 As the court stated in Munninger, 209 Ariz. at 482, ¶ 25, 104 P.3d at 213, the presence of one aggravating factor does not permit an aggravated sentence; rather, it is the balancing and weighing of all aggravating and mitigating factors which ultimately leads to the sentence imposed. Thus, while the trial court has discretion to weigh all such factors without violating Blakely, it may do so only after the jury finds the Blakely factors to be present.21
¶ 49 In Blakely, the Supreme Court explained that a “statutory maximum” sentence was a term of art:
[T]he 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, that 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 (citation omitted) (emphasis added in part). How can the mere presence of one Blakely-compliant or -exempt factor automatically increase the “statutory maximum” to allow the judge to constitutionally find myriad other Blakely factors when “statutory maximum” means the maximum the judge may impose without any additional findings?
The Effect of Booker
¶ 50 The majority contends that Booker supports the “single factor rule“. Booker does not deal with the issue presented in this case of whether the presence of one Blakely-compliant or -exempt factor permits a trial judge to find all other Blakely-violative factors present in imposing a sentence. Thus, it should not be relied upon to support the “single factor” rule. Moreover, as explained below, the federal sentencing scheme is very different from Arizona‘s scheme. However, if anything the reasoning and holdings in Booker implicitly, if not expressly, reject the rule the majority adopts today.
¶ 51 To understand the implied impact of Booker, it is important to first understand how the federal sentencing guidelines (“Guidelines“) work. Generally, the distinction between Arizona and the Guidelines is that in Arizona, any and all of the aggravating factors found in
¶ 52 On a simplified basis, the Guidelines create a grid of sentencing ranges. A court first finds the baseline sentencing level for the offense of which the defendant was convicted. That baseline is then modified by the defendant‘s prior history, adding points for prior incarcerations. This computation gives the court a sentencing range within which the judge may sentence the defendant absent other aggravating or mitigating factors. Thomas W. Hutchinson, et al., Federal Sentencing Law and Practice §§ 1B1.1(a)-(g), 1B1.2(a)-(b) 1B1.3 and 4A1.1 (2004 ed.)
¶ 53 For example, robbery has a base offense level of twenty. Id. at § 2B3.1(a). If the
¶ 54 The Guidelines permit two types of increases to the above sentencing. First, most offense levels list certain factors which would permit the district court to increase the level of the offense in the sentencing table. The district judge cannot take these factors into account in departing from the Guidelines’ range. Id. at § 1A1.1 at 6. Thus, in the above example for robbery, if the robbery involved a financial institution or a post office, it would be increased two levels to offense level 22. Id. at 2B3.1(b)(1). Second, both
¶ 55 The federal system is distinctly different from Arizona‘s sentencing system. The Guidelines create various ranges of sentences based on the offense and whether the jury finds certain factors to be present. Each range is keyed to the factors specific to that offense level. The trial judge may then consider any other non-prohibited offender-related or offense-related factors to increase the sentence. However, under Booker, while the judge may increase the sentence based on those latter factors, she may not exceed the range authorized by the verdict. Thus, in our robbery example, the sentence would be an offense level of twenty with three criminal history points for a range of 37-46 months. If the judge found a weapon was used in the robbery, she could increase the sentence under Guidelines § 5K2.6. However, under Booker, that offense characteristic cannot be used to increase the sentence beyond the forty-six months.
¶ 56 In contrast in Arizona, each class of crime has its own range of minimum, presumptive and maximum sentences. If the defendant is convicted of that crime, the range is that authorized for that level of felony. Then, the sentence can be increased by innumerable offender-related and offense-related aggravating factors under
¶ 57 If applicable at all to Arizona, Booker would require rejection of the rule the majority adopts today. This is because the aggravating factors under
¶ 58 In Booker, the Court made clear that without violating Blakely, the district court could only use its discretion to consider factors not found by the jury if it stayed within the sentencing range authorized by the sentencing table based on the jury verdict. Thus, for example, the majority first cites to Justice Stevens’ statement that “[a]pplying Blakely to the Guidelines would invalidate a sentence that relied on such an enhancement [perjury] if the resulting sentence was outside the range authorized by the jury verdict. Nevertheless, there are many situations in which the district judge might find that the enhancement is warranted, yet still sentence the defendant within the range authorized by the jury.” Booker, — U.S. at —, 125 S.Ct. at 753. (Emphasis added).
¶ 59 The above language does not support the rule the majority adopts here. It stands for the proposition that the district court can consider other factors not found by the jury without violating Blakely, but only if the
¶ 60 Nor does the majority‘s reliance on Justice Stevens’ dissent from the remedial opinion support the “single factor rule.” This is because, again, Justice Stevens was saying the trial judge could consider enhancement or aggravating factors not found by the jury, but only if the ultimate sentence was within the range based on the factors found by the jury. — U.S. at —, 125 S.Ct. at 772.
¶ 61 Thus, the majority quotes Justice Stevens’ dissent from the remedial opinion in Booker, which dissent emphasized that the Guidelines only require limited jury factfinding. — U.S. at — n. 10, 125 S.Ct. at 780 n. 10. However, in turning to that language, we find that Justice Stevens again stated that any judicial factfinding could not exceed the sentencing range authorized by the facts found by the jury: “[A] requirement that certain enhancements be supported by jury verdicts leaves the ultimate sentencing decision exclusively within the judge‘s hands—the judge, and the judge alone, would retain the discretion to sentence the defendant anywhere within the required Guidelines range and within overlapping Guidelines ranges when applicable.” Id. at —, 125 S.Ct. at 780 (emphasis added).
¶ 62 That the Court in Booker was holding that Blakely limited district judges to sentencing within the sentencing range based on the jury verdict is further re-enforced by the other language to which the majority points. The majority states that Justice Stevens reasoned the judge could enhance the sentence beyond that found by the jury. Supra, ¶ 23. However, in the passage quoted by the majority, Justice Stevens explained that an enhancement by the district judge to a higher offense level based on factors not found by the jury would not violate Blakely only if the actual sentence under the increased offense level did not exceed the maximum sentence in the lower offense level based solely on the jury‘s verdict, that is, it fell within the overlap between the two sentencing ranges. Id. at —, 125 S.Ct. at 775.23
¶ 63 That Blakely limited a trial court to a sentencing range authorized by the factors found by the jury verdict is finally highlighted by Justice Stevens’ treatment of Booker himself. As the Supreme Court explained in Booker, the only fact found by the jury was that Booker possessed 92.5 grams of cocaine base. Based on that fact and Booker‘s prior history, the federal sentencing guidelines required the district court to select a base sentence of from 210 to 262 months. However, the judge found that Booker possessed 566 grams of the drug and had obstructed justice. Based on the higher amount of the drug alone, the Guidelines’ sentencing range was twenty-seven to thirty years. Based on both the increased amount of the drug and the obstructing factor, the sentencing range was thirty years to life. The judge sentenced Booker to 30 years (360 months) in prison. Booker, — U.S. at — & —, 125 S.Ct. at 746 & 772. The Court held that dissent which limits the trial court‘s sentencing authority to the range which was authorized by the jury verdict.
¶ 64 Justice Stevens, dissenting from the Court‘s remedial opinion, wrote if the 566 gram finding had been made by the jury, that finding would have authorized a Guidelines sentence between 27 and 34 years given Booker‘s criminal history and “[r]elying on his own appraisal of the defendant‘s obstruction of justice, and presumably any other information in the presentence report, the judge would have had discretion to select any sentence within that range.” Id. at 772 (emphasis added). Thus, the ultimate sentence imposed, even relying on other supposed aggravating factors, could not have exceeded the range authorized if the jury had found the 566 grams factor.
¶ 65 That Justice Stevens was not adopting the rule suggested by the majority is further supported by the statement in his dissent that “[b]ecause the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, they allow ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue.” Id. (emphasis added). Again, Arizona does not have those mandatory ranges based on specific factors. Moreover, it is only when the district judge keeps the sentence within the range permitted by the factors found by the jury‘s verdict (and the prior criminal history) that the Blakely issue does not arise.
¶ 66 In sum, Booker does not support the rule adopted by the majority today. As the Court made clear repeatedly in Booker, the district judge can enhance or increase a sentence by finding facts not found by the jury, but only when that sentence is within the sentencing range authorized by factors found by the jury in its verdict. Arizona‘s system does not have various ranges of sentencing based on specific factors, but only ranges based on the offense itself. Any use of offender-related or offense-related factors, i.e.,
Resolution
¶ 67 Here, the superior court found a number of aggravating factors to be present in imposing an aggravated sentence. The Arizona Court of Appeals is divided on whether Blakely error is subject to harmless error analysis or amounts to structural error. Compare State v. Henderson, 209 Ariz. 300, 310-11, ¶ 33, 100 P.3d 911, 921-22 (App.2004) (holding error subject to harmless error analysis), with id. at 316, ¶ 58, 100 P.3d at 927 (Weisberg, J., concurring and stating that such error is structural in nature); State v. Resendis-Felix, 209 Ariz. 292, 294, ¶ 8, 100 P.3d 457, 459 (App.2004) (harmless error rule applies to Blakely error), with id. at 296-99, ¶¶ 12-25, 100 P.3d at 461-64 (Eckerstrom, J., concurring; Blakely error is structural error). While I agree that this type of error is structural in nature for many of the reasons stated by the concurrences in those two decisions,24 even if such error were subject to
¶ 68 Accordingly, I would vacate the sentences and remand for further proceedings consistent with the views I have set forth in this dissent.
(in months of imprisonment)
Criminal History Category (Criminal History Points)
| Offense Level | I (0 or 1) | II (2 or 3) | III (4, 5, 6) | IV (7, 8, 9) | V (10, 11, 12) | VI (13 or more) |
|---|---|---|---|---|---|---|
| 1 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 |
| 2 | 0-6 | 0-6 | 0-6 | 0-6 | 0-6 | 1-7 |
| 3 | 0-6 | 0-6 | 0-6 | 0-6 | 2-8 | 3-9 |
| 4 | 0-6 | 0-6 | 0-6 | 2-8 | 4-10 | 6-12 |
| 5 | 0-6 | 0-6 | 1-7 | 4-10 | 6-12 | 9-15 |
| 6 | 0-6 | 1-7 | 2-8 | 6-12 | 9-15 | 12-18 |
| 7 | 0-6 | 2-8 | 4-10 | 8-14 | 12-18 | 15-21 |
| 8 | 0-6 | 4-10 | 6-12 | 10-16 | 15-21 | 18-24 |
| 9 | 4-10 | 6-12 | 8-14 | 12-18 | 18-24 | 21-27 |
| 10 | 6-12 | 8-14 | 10-16 | 15-21 | 21-27 | 24-30 |
| 11 | 8-14 | 10-16 | 12-18 | 18-24 | 24-30 | 27-33 |
| 12 | 10-16 | 12-18 | 15-21 | 21-27 | 27-33 | 30-37 |
| 13 | 12-18 | 15-21 | 18-24 | 24-30 | 30-37 | 33-41 |
| 14 | 15-21 | 18-24 | 21-27 | 27-33 | 33-41 | 37-46 |
| 15 | 18-24 | 21-27 | 24-30 | 30-37 | 37-46 | 41-51 |
| 16 | 21-27 | 24-30 | 27-33 | 33-41 | 41-51 | 46-57 |
| 17 | 24-30 | 27-33 | 30-37 | 37-46 | 46-57 | 51-63 |
| 18 | 27-33 | 30-37 | 33-41 | 41-51 | 51-63 | 57-71 |
| 19 | 30-37 | 33-41 | 37-46 | 46-57 | 57-71 | 63-78 |
| 20 | 33-41 | 37-46 | 41-51 | 51-63 | 63-78 | 70-87 |
| 21 | 37-46 | 41-51 | 46-57 | 57-71 | 70-87 | 77-96 |
| 22 | 41-51 | 46-57 | 51-63 | 63-78 | 77-96 | 84-105 |
| 23 | 46-57 | 51-63 | 57-71 | 70-87 | 84-105 | 92-115 |
| 24 | 51-63 | 57-71 | 63-78 | 77-96 | 92-115 | 100-125 |
| 25 | 57-71 | 63-78 | 70-87 | 84-105 | 100-125 | 110-137 |
| 26 | 63-78 | 70-87 | 78-97 | 92-115 | 110-137 | 120-150 |
| 27 | 70-87 | 78-97 | 87-108 | 100-125 | 120-150 | 130-162 |
| 28 | 78-97 | 87-108 | 97-121 | 110-137 | 130-162 | 140-175 |
| 29 | 87-108 | 97-121 | 108-135 | 121-151 | 140-175 | 151-188 |
| 30 | 97-121 | 108-135 | 121-151 | 135-168 | 151-188 | 168-210 |
| 31 | 108-135 | 121-151 | 135-168 | 151-188 | 168-210 | 188-235 |
| 32 | 121-151 | 135-168 | 151-188 | 168-210 | 188-235 | 210-262 |
| 33 | 135-168 | 151-188 | 168-210 | 188-235 | 210-262 | 235-293 |
| 34 | 151-188 | 168-210 | 188-235 | 210-262 | 235-293 | 262-327 |
| 35 | 168-210 | 188-235 | 210-262 | 235-293 | 262-327 | 292-365 |
| 36 | 188-235 | 210-262 | 235-293 | 262-327 | 292-365 | 324-405 |
| 37 | 210-262 | 235-293 | 262-327 | 292-365 | 324-405 | 360-life |
| 38 | 235-293 | 262-327 | 292-365 | 324-405 | 360-life | 360-life |
| 39 | 262-327 | 292-365 | 324-405 | 360-life | 360-life | 360-life |
| 40 | 292-365 | 324-405 | 360-life | 360-life | 360-life | 360-life |
| 41 | 324-405 | 360-life | 360-life | 360-life | 360-life | 360-life |
| 42 | 360-life | 360-life | 360-life | 360-life | 360-life | 360-life |
| 43 | life | life | life | life | life | life |
-363- November 1, 2003