State v. FellState v. Fell
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¶ 1 A jury found real party in interest Edward John Sanders guilty of sexual assault, sexual abuse, kidnapping, second-degree burglary, and first-degree murder. Because petitioner State of Arizona had withdrawn its previously filed notice of intent to seek the death penalty, the remaining sentencing options were a natural life prison term or a life term with the possibility of parole after twenty-five years.
See
¶ 2 The state petitioned for special action relief from those rulings. We are thus presented with two issues in this special action. We must decide whether
Blakely
requires a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole. We must also determine whether
PROCEDURAL BACKGROUND
¶ 3 On June 11, 2004, a jury found Sanders guilty of first-degree murder and other offenses related to his July 2000 sexual assault and murder of the eighty-eight-year-old victim. The state had initially filed a notice that it would be seeking the death penalty for the murder charge. It also gave notice of its intent to prove the following aggravating circumstances for sentencing purposes: Sanders had committed the offense in an especially heinous, cruel, or depraved manner; he was an adult at the time he committed the offense; and the victim was seventy years of age or older. Before trial, however, the state withdrew the notice seeking the death penalty, leaving as the two remaining sentencing alternatives a natural life term of imprisonment or a life term with the possibility of parole after twenty-five years. See
¶ 4 On June 24, the United States Supreme Court decided
Blakely.
The Court found the State of Washington’s non-capital sentencing scheme unconstitutional based primarily on the Court’s earlier decision in
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The respondent judge asked the parties to submit memoranda addressing whether
Blakely
and
¶ 5 After two status conferences on these issues, the respondent judge concluded in orders filed on July 20 and August 2 that
Blakely
applied. Thus, the respondent judge ruled that a jury would be required to find beyond a reasonable doubt the aggravating circumstances the state had alleged in September 2000, and that the state would be limited to those factors, before Sanders could be sentenced to a natural life prison term. Neither the respondent judge’s orders nor the transcripts of the status conferences make clear whether he believed he had to consider the aggravating circumstances listed in
¶ 6 The state contends the respondent judge abused his discretion or acted in excess of his authority by finding
Blakely
applies. The state maintains the respondent judge erred by concluding that, before he can sentence Sanders to a natural life prison term, a jury must find the state has proved beyond a reasonable doubt the aggravating circumstances of which the state previously had given notice. The state also maintains that
¶
7
We accept jurisdiction of this special action for several reasons. First, the state does not have an equally plain, speedy, or adequate remedy by appeal.
See
Ariz. R.P. Spec. Actions 1, 17B A.R.S. The respondent judge’s orders are interlocutory in nature and the state contends it could not challenge them after a judgment of conviction and sentence are imposed.
See generally
¶ 8 In addition, the questions raised are of first impression and statewide importance.
See Inzunza-Ortega v. Superior Court,
192 Ariz. 558, 968 P.2d 631 (App.1998). In the wake of
Blakely,
trial and appellate courts are wrestling with its applicability to a variety of statutes and circumstances. Clearly, the ramifications of
Blakely
on Arizona’s sentencing statutes are potentially far-reaching. The state urges us to accept jurisdiction to give guidance to trial courts faced with the decision whether to sentence murder defendants to a natural life prison term or life with the possibility of parole. Similarly, the question whether
IS
¶ 9 The state first contends the respondent judge erred by finding that he must consider the aggravating factors listed in
¶ 10 We begin our analysis with the general principle that a criminal defendant must be punished with the penalty that existed at the time the offense was committed.
¶ 11 Vacating this court’s decision,
State v. Viramontes,
200 Ariz. 452, 27 P.3d 809 (App.2001), the supreme court rejected the state’s argument that
¶ 12 In May 2003, about five months after the supreme court decided
Viramontes
and presumably in response to that case, the legislature amended
If the death penalty was not alleged or was alleged but not imposed, the court shall determine whether to impose a sentence of life or natural life. In determining whether to impose a sentence of life or natural life, the court:
1. May consider any evidence introduced before sentencing or at any other sentencing proceeding.
2. Shall consider the aggravating and mitigating circumstances listed in§ 13-702 and any statement made by a victim.
2003 Ariz. Sess. Laws, eh. 255, § 2. The effective date of the statute was September 18, 2003, ninety days after the legislative session ended.
See
¶ 13 The state contends
¶ 14 First, the state cites no legislative history or other support for its assertion that
¶ 15 Because we conclude
¶ 16 The state also relies on this court’s decision in
O’Brien
for the proposition that the legislature may enact a statute to clarify a previous statute. There, we addressed whether amendments to
¶ 17 Assuming, however, the legislature intended
¶ 18 We find particularly instructive our supreme court’s decision in
Murray.
Reiterating the separation of powers principles it had discussed at length in
San Carlos Apache Tribe v. Superior Court,
193 Ariz. 195, 972 P.2d 179 (1999), the court held that the legislature could not retroactively amend
¶ 19 The supreme court acknowledged in
Murray
that the legislature, unlike when it added
These principles, so recently restated in San Carlos, lead to only one conclusion: the legislature cannot overrule and change Tarango’s interpretation of the statute and apply it on a retroactive basis. It may change the statute for prospective application, but cases, including the present one, must be decided on the basis of the court’s interpretation of the substantive law that existed at the time the events in question occurred. That interpretation, binding under the separation of powers embodied in article III of our constitution, cannot be overruled. As a general matter, the separation of powers doctrine leaves creation of future statutory law to the legislative branch and determination of existing law and its application to past events to the judicial branch.
Id. ¶ 9.
¶ 20 Thus, assuming the legislature intended
¶ 21 When the legislature enacted
¶ 22 In San Carlos, the court explained that a “merely procedural [statute] may be applied retroactively.” 193 Ariz. 195, ¶ 15, 972 P.2d at 189. But it made clear that, once a right vests, it may not be disturbed by subsequent legislation. Id. Murray is even more instructive. There, the supreme court acknowledged that the legislature had intended the statutory amendments on parole eligibility to apply retroactively. However, the court held that the legislature “ ‘may not disturb vested substantive rights by retroactively changing the law that applies to completed events ... [and cannot] change the legal consequence of events completed before [a] statute’s enactment.” ’ 194 Ariz. 373, ¶ 6, 982 P.2d at 1289, quoting San Carlos, 193 Ariz. 195, ¶ 15, 972 P.2d at 189. Adding that it is for the judiciary to decide whether the legal consequences of a change in the law are substantive or procedural, the court held that parole eligibility rights are substantive, not procedural. 194 Ariz. 373, ¶ 6, 982 P.2d at 1289; see also San Carlos.
¶ 23 Sanders is correct that a change in the aggravating factors a judge must consider is not procedural. It is a substantive change that affects the penalty. That conclusion is supported by our supreme court’s decision in
State v. Ring,
204 Ariz. 534, 65 P.3d 915 (2003)
(Ring III).
In
Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
(Ring II),
the United States Supreme Court found Arizona’s capital sentencing statute unconstitutional based on principles it had announced in
Apprendi.
Because former
¶ 24 In Ring III, our supreme court held that resentencing defendants under the newly enacted sentencing statutes would not constitute an ex post facto violation under either the federal or state constitution. The court reasoned that the change in only the method of sentencing was procedural and could, therefore, as the legislature had expressly provided, apply to defendants who had committed offenses before the new statutes were enacted. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(A) (providing amendments to capital sentencing statutes applicable to senteneings or resentencings after Aug. 1, 2002).
¶ 25 The court in
Ring III
observed that the change in the death penalty statute in Arizona was similar to the change in Florida’s statute enacted in response to the United States Supreme Court’s decision in
Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In
Furman,
the Supreme Court had held state death-sentencing procedures that lacked standards violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Later, in
Dobbert,
the Court rejected the defendant’s claim that he could not constitutionally be sentenced under a new statute enacted in response to
Furman.
The Supreme Court found that “[t]he new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.” 432 U.S. at 293-94, 97 S.Ct. at 2298, 53 L.Ed.2d at 356;
see also Schriro v. Summerlin,
— U.S. —, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)
¶ 26 Significantly, the court in Ring III distinguished its decision in State v. Cornell, 148 Ariz. 468, 715 P.2d 721 (1986). In Cornell, the supreme court had held that the legislature’s addition of an aggravating circumstance to the capital sentencing statute (committing one or more other homicides during the commission of the offense) was a substantive change in the law that disadvantaged the defendant to whom it had been applied. The court found that retroactive application of the new provision to a defendant who had committed offenses before the effective date of the statute violated the ex post facto prohibitions of the federal and state constitutions. In Ring III, the court noted that the change in the statute in Cornell had “affected the substantive nature of the crime and sentencing” by adding a new factor that permitted the defendant to receive a more severe punishment than that available at the time of the offense. 204 Ariz. 534, ¶ 22, 65 P.3d at 928.
¶ 27 The enactment of
DOES BLAKELY APPLY TO THE DECISION TO IMPOSE A NATURAL LIFE PRISON TERM OR LIFE WITH THE POSSIBILITY OF PAROLE?
¶ 28 In Blakely, the Supreme Court found Washington’s non-capital sentencing statute violated the Sixth Amendment right to a jury trial based on the principle the Court had announced in Apprendi, that, “[ojther 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, — U.S. at —, 124 S.Ct. at 2536, 159 L.Ed.2d at 412, quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. The defendant in Blakely had pled guilty to a crime classified as a “class B felony,” punishable under one provision of the Washington sentencing statutes by a maximum of ten years’ imprisonment. But a different provision set a sentencing range for that crime of forty-nine to fifty-three months, permitting judges to sentence defendants beyond that range if the judge found “ ‘substantial and compelling reasons justifying an exceptional sentence’ ” and limiting the facts the judge could consider in imposing the “‘exceptional’” term to facts “ ‘other than those which are used in computing the standard range sentence for the offense.’ ” — U.S. at —, 124 S.Ct. at 2535, 159 L.Ed.2d at 411. The Supreme Court held:
[T]he ‘statutory maximum’ [of a sentencing statute] 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.
Id.
at —, 124 S.Ct. at 2537, 159 L.Ed.2d at 413 (emphasis deleted). The Court conclud
ed
¶ 29 Assuming for purposes of this decision that
Blakely
applies generally to Arizona’s non-capital sentencing statutes, as the state essentially concedes, we hold that
Blakely
does not apply to a trial court’s decision whether to sentence a defendant convicted of first-degree murder to a term of natural life imprisonment or life with the possibility of parole. As discussed below, both options are indeterminate sentencing alternatives in
¶ 30 Neither the statute nor case law requires a sentencing judge to enter factual findings on the aggravating or mitigating factors in this context.
Compare
¶ 31 As previously noted, at the time Sanders committed the offense,
A person guilty of first degree murder as defined insection 13-1105 shall suffer death or imprisonment in the custody of the state department of corrections for life as determined and in accordance with the procedures provided in subsections B through G of this section. If the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant’s natural life. An order sentencing the defendant to natural life is not subject to commutation or parole, work furlough or work release. If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years if the victim was fifteen or more years of age and thirty-five years if the victim was under fifteen years of age.
1999 Ariz. Sess. Laws, ch. 104, § 1.
¶ 32 In 2002, in response to
Ring II,
the legislature amended
¶ 33 In interpreting a statute, we must attempt to give effect to the legislature’s intent, looking first to its most rehable index, the text of the statute.
Zamora v. Reinstein,
185 Ariz. 272, 915 P.2d 1227 (1996);
see also Abbott v. City of Tempe,
129 Ariz. 273, 630 P.2d 569 (App.1981) (cardinal rule in statutory interpretation is to ascertain and give effect to legislature’s intent). “ ‘[Wjhen the language [of a statute] is clear and unequivocal, it is determinative of the statute’s construction.”’
Viramontes,
204 Ariz. 360, ¶ 8, 64 P.3d at 189,
quoting Janson v. Christensen,
167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991);
see also Hayes v. Cont’l Ins. Co.,
178 Ariz. 264, 872 P.2d 668 (1994) (when text of statute is clear and unambiguous, courts need not employ other methods of statutory interpretation to determine legisla
tive
¶ 34 As discussed earlier, in
Viramontes,
our supreme court found
¶ 35 The notion of a “presumptive” prison term derives from language in
¶ 36 In
State v. Ovind,
186 Ariz. 475, 478, 924 P.2d 479, 482 (App.1996), Division One of this court acknowledged that, “[u]nlike the sentences for other crimes, the statute relating to first degree murder does not describe any sentence as the ‘presumptive’ one.” Nevertheless, the court found that a prison term of life with the possibility of parole is tantamount to the presumptive prison term under
¶ 37 In contrast, here we have no reason to apply the rule of lenity because our supreme court stated in
Viramontes
that
¶ 38 Our conclusion is supported not only by the clear language of the first-degree murder sentencing statutes, a comparison of the sentencing statutes pertaining to offenses other than first-degree murder, and our reading of
Blakely,
but also by our supreme court’s decision in
State v. Wagner,
194 Ariz. 310, 982 P.2d 270 (1999). There, the court rejected the defendant’s claim that
¶ 39 The supreme court’s acknowledgment in Wagner that the statute provided no specific guidelines recognized, at least implicitly, that no findings were required. The court reasoned that, “[b]ecause appellant has no constitutional right to sentencing guidelines in a non-capital proceeding, the lack of guidelines for imposing a sentence of life or natural life does not violate appellant’s right to due process or equal protection under the law.” Id. Like Division One, the supreme court relied, in part, on the United States Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). There, the Court had rejected the claim that the Constitution required states “to create a sentencing scheme whereby life in prison without possibility of parole is simply the most severe of a range of available penalties that the sentencer may impose after hearing evidence in mitigation and aggravation.” Id. at 994, 111 S.Ct. at 2701, 115 L.Ed.2d at 864. Our supreme court in Wagner also relied on United States v. LaFleur, 971 F.2d 200 (9th Cir.1991), in which the Ninth Circuit Court of Appeals held that the Constitution does not require a sentencing court to conduct an individual assessment in determining whether a life prison term is appropriate.
¶ 40 We find further support for the conclusion that either a natural life term or a life term with the possibility of parole is authorized by the jury verdict in those portions of our supreme court’s decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), that the United States Supreme Court cited with approval in Ring II.. In Ring I, our supreme court characterized the first-degree murder sentencing statute as it read at all times relevant to Sanders’s case as follows:
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.
200 Ariz. 267, ¶ 42, 25 P.3d at 1151. And the Supreme Court similarly characterized Arizona’s capital sentencing statute as follows: “Based solely on the jury’s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment.” 536 U.S. at 597, 122 S.Ct. at 2437, 153 L.Ed.2d at 569. Neither the United States Supreme Court nor the Arizona Supreme Court distinguished a natural life term from a term of life with the possibility of parole; both courts regarded the prison term authorized by the jury verdict alone as a life term of imprisonment. Both forms of a life term, then, are authorized by the verdict. To sentence a defendant to death under former § 13-703, of course, required a sentencing judge to find aggravating circumstances beyond a reasonable doubt.
¶ 41 Nothing in
Viramontes
requires trial judges to make factual findings before choosing between a natural life term of imprisonment or life with the possibility of parole. Moreover, such a requirement would be inconsistent with
Wagner.
Although the
Vira-montes
court noted in dictum that it was not required to follow the court of appeals’ decisions in
State v. Guytan,
192 Ariz. 514, 968 P.2d 587 (App.1998), and
State v. Sproule,
188 Ariz. 439, 937 P.2d 361 (App.1996), it did
CONCLUSION
¶ 42 We conclude that a trial judge need not make any additional findings in deciding whether to impose a natural life prison term or life with the possibility of parole. Thus, Blakely does not apply, and Sanders is not entitled to a jury trial on the aggravating factors. But, even if the statute could be construed, implicitly or otherwise, as requiring a judge to make express factual findings and assuming, too, that, in light of Vira-montes, we must question the continued viability of Sproule and Guytan, we would nevertheless reach the same conclusion.
¶ 43 Once the jury found Sanders guilty of first-degree murder, the respondent judge may impose any term within the range authorized by the verdict. As we have said, that is a life term of imprisonment, which the respondent judge, in the exercise of his discretion, may order Sanders to serve in its entirety or with the possibility of parole after twenty-five years. The respondent judge may base that decision “on various facts relating to the defendant and the manner in which the offense was committed.” Harris v. United States, 536 U.S. 545, 549, 122 S.Ct. 2406, 2410, 153 L.Ed.2d 524, 533 (2002) (plurality opinion finding Apprendi is not implicated if court-found sentencing factor raises mandatory minimum penalty). The Court in Harris stated, “Though these facts may have a substantial impact on the sentence, they are not elements [of the offense] and are thus not subject to the Constitution’s indictment, jury, and proof requirements.” Id. “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.” Id. at 558, 122 S.Ct. at 2415, 153 L.Ed.2d at 538. Because there is no presumptive or aggravated prison term for first-degree murder, Blakely is not implicated. This would be true even if the statute required, implicitly or otherwise, trial courts to make express findings of fact.
DISPOSITION
¶ 44 For the reasons stated above, we accept jurisdiction of this special action. Because we find that the respondent judge “has proceeded or is threatening to proceed without or in excess of [his] jurisdiction or legal authority,” Rule 3(b), Ariz. R.P. Spec. Actions, by compelling the state to prove and a jury to find beyond a reasonable doubt the aggravating factors alleged in the state’s notice, we vacate those portions of the court’s July 20 and August 2 orders. The respondent judge is directed to conduct sentencing proceedings consistent with this opinion and our supreme court’s decision in
Viramontes.
We find, however, that the respondent judge did not err or abuse his discretion in finding,
Notes
. We note that, when the legislature amended the capital sentencing statutes in response to the United States Supreme Court’s decision in
Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), it specified that the amendments to
. Division One of this court’s decision in
Nation v. Colla,
173 Ariz. 245, 841 P.2d 1370 (App.1991), upon which the state also relies, is similarly distinguishable. There, the court found no need to determine whether the supreme court‘s decision in
Pritchard v. State,
163 Ariz. 427, 788 P.2d 1178 (1990), was retroactively applicable because
Pritchard
had held that the time limits in
. In arguing that there is no retroactivity issue in this case, the state again contends that the law as it existed at the time Sanders committed the offense was, in fact, § 13-703.01(Q), rather than
. We note, as we did before, footnote 1, supra, that when the legislature amended the capital sentencing statutes in response to Ring II, it expressly provided that the changes would apply to any sentencing or resentencing after the effective date of the statutes. That it did not do so when it enacted § 13-703.01(Q) suggests it did not intend that the statute apply immediately to all senteneings after its effective date. We also note that the state does not dispute that § 13— 703.01(Q) is substantive rather than procedural.
. At oral argument, Sanders contended