¶ 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 Because petitioner State of Arizona had withdrawn its previously filed notice of intent to seek the death penalty, the remaining sentencing options were a natural life prison term or a life term with the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
A.R.S. § 13-703(A). Before the sentencing hearing, the respondent judge held two status conferences and entered orders that resulted in the filing of this petition for special action. The respondent judge found that the United States Supreme Court’s recent decision in
Blakely v. Washington,
— U.S. —,
¶ 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 A.R.S. § 13-703.01(Q), which requires judges to consider the aggravating circumstances in § 13-702 in choosing between these sentencing alternatives, applies retroactively to persons who committed offenses before the effective date of the statute. On the latter question, we deny relief and affirm the respondent judge’s orders insofar as they suggest § 13 — 703.01(Q) may not be retroactively applied. However, because we conclude that Blakely does not apply, Sanders is not entitled to a jury trial on the aggravating circumstances. We therefore accept jurisdiction of this special action and grant partial relief by reversing those portions of the respondent judge’s orders that are to the contrary.
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 § 13-703(A).
¶ 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,
¶ 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 § 13-703 or the factors listed in § 13-702, as directed by § 13-703.01(Q). But the state’s allegations are such that they appear to fall under § 13-703. And, at oral argument on this petition, the parties agreed the respondent judge intended to consider only the factors set out in that statute.
¶ 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 § 13-703.01(Q) applies to Sanders’s sentencing and that, consequently, the respondent judge must consider the factors under § 13-702, not § 13-703.
¶
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
A.R.S. § 13-4032 (setting forth kinds of orders from which the state has a right to appeal in criminal cases). Even assuming, without deciding, that the state could raise the issues after sentencing, its remedy would not be equally plain, speedy, or adequate because the state would have then proceeded in accordance with the order, presumably proving the aggravating circumstances beyond a reasonable doubt to a jury. Second, our review of the respondent judge’s orders requires us to consider the applicability of
Blakely
and to interpret §§ 13-708 and 13-703.01(Q), questions of law that are particularly appropriate for review by special action.
See State ex rel. Romley v. Fields,
¶ 8 In addition, the questions raised are of first impression and statewide importance.
See Inzunza-Ortega v. Superior Court,
IS § 13-703.01(Q) RETROACTIVELY APPLICABLE?
¶ 9 The state first contends the respondent judge erred by finding that he must consider the aggravating factors listed in § 13-703 (and only those factors of which the state previously gave notice) in deciding whether to sentence Sanders to a prison term of natural life or life with the possibility of parole after twenty-five years. The state argues that § 13-703.01(Q), which requires a judge to consider the aggravating factors in § 13-702, applies to Sanders’s sentencing because it is not a change in the existing law but, rather, clarifies what the legislature had always intended § 13-703 to mean, notwithstanding our supreme court’s decision in
State v. Viramontes,
¶ 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. A.R.S. § 1-246;
see also O’Brien v. Escher,
¶ 11 Vacating this court’s decision,
State v. Viramontes,
¶ 12 In May 2003, about five months after the supreme court decided Viramontes and presumably in response to that case, the legislature amended § 13-703.01, adding subsection (Q), which states:
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 Ariz. Const. art. IV, pt. 1 § 1(3) (“no Act passed by the Legislature shall be operative for ninety days after the close of the session of the Legislature enacting such measure” except under certain circumstances).
¶ 13 The state contends § 13-703.01(Q) was merely a clarification by the legislature of what it had always intended § 13-703 to mean: a sentencing judge must consider the factors in § 13-702, not those in § 13-703, in deciding whether to sentence a defendant convicted of non-capital first-degree murder to a natural life prison term or life with the possibility of parole. The state asserts that, in Viramontes, the supreme court misinterpreted § 13-703 and that the legislature enacted the new provision to clarify its initial intent. We disagree for several reasons.
¶ 14 First, the state cites no legislative history or other support for its assertion that § 13-703.01 was merely intended to clarify § 13-703. Nor does anything in the statute itself support this contention. Rather, on its face, § 13-703.01(Q) expressly changes the first-degree murder sentencing statutes, requiring for the first time that a trial judge consider factors listed in § 13-702 in choosing between a natural life prison term or life with the possibility of parole.
See generally Viramontes
(finding § 13-703 and aggravating factors in that statute clearly applicable to trial court’s decision to sentence first-degree murder defendant to natural life or life with the possibility of parole). Additionally, when legislators amend a statute, “‘we must presume they intended to change existing law rather than perform a futile act.’ ”
Rotter v. Coconino County,
¶ 15 Because we conclude § 13-703.01(Q) changed the law, the state’s reliance on
Vas
¶ 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 A.R.S. § 13-901.01 and the supreme court’s interpretation of that statute in
State v. Estrada,
¶ 17 Assuming, however, the legislature intended § 13-703.01(Q) to be a clarification of § 13-703 rather than a change in the law, as the state contends, it was not within the legislature’s province to retroactively nullify
Viramontes. A
legislative attempt to retroactively overrule a decision by the courts of this state interpreting a statute violates the separation of powers doctrine.
State v. Murray,
¶ 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,
¶ 19 The supreme court acknowledged in
Murray
that the legislature, unlike when it added § 13-703.01(Q), had made clear its intent that the amendments were to apply retroactively “to a prisoner sentenced before the amendments were adopted.”
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 § 13-703.01(Q) to clarify § 13-703 as it existed at the time Sanders committed the offense, as the state contends, we are constrained to follow our supreme court’s interpretation of § 13-703 in
Viramontes.
Once the supreme court interpreted § 13-703, that interpretation became part of the statute.
Galloway v. Vanderpool,
¶ 21 When the legislature enacted § 13-703.01(Q) in 2003, it did not expressly state that it applies retroactively. Section 1-244, A.R.S., provides that “[n]o statute is retroactive unless expressly declared therein.” Therefore, unless a statute expressly applies retroactively, it presumptively applies prospectively. But as we previously stated, § 1-246 provides that a criminal defendant must be punished with the penalty that existed at the time the defendant committed the offense.
See
¶ 10,
supra.
Imposing a different, more onerous penalty implicates not only that statute but also the state and federal prohibitions against the enactment of
ex post facto
laws. U.S. Const. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25;
see also Dobbert v. Florida,
¶ 22 In
San Carlos,
the court explained that a “merely procedural [statute] may be applied retroactively.”
¶ 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,
¶ 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,
¶ 26 Significantly, the court in
Ring III
distinguished its decision in
State v. Cornell,
¶ 27 The enactment of § 13-703.01(Q) is analogous to the addition of an aggravating factor to § 13-703 at issue in Cornell. It is qualitatively different from the changes in the capital sentencing statutes that the supreme court in Ring III characterized as procedural. Indeed, the kinds of aggravating factors that may be considered can significantly affect the sentence imposed, as the supreme court itself recognized in Viramontes. We conclude the change that § 13-703.01(Q) effected was substantive and that it must therefore apply prospectively only, that is, to defendants who committed offenses after the statute’s effective date. Accordingly, Sanders must be sentenced in accordance with § 13-703 as it read in July 2000, when he committed the offenses. And, consistent with Viramontes, the respondent judge must consider the aggravating factors in § 13-703, not those in § 13-702. In this case, we limit those factors to the ones of which the state gave notice because the state has failed to establish the respondent judge abused his discretion or lacked authority to so limit them. See Ariz. R.P. Spec. Actions 3(b), (c). We now turn to the question whether the Supreme Court’s decision in Blakely requires that a jury find the aggravating circumstances beyond a reasonable doubt.
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 —,
[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 —,
¶ 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 § 13-703(A), variations, as it were, on a life term of imprisonment. Either alternative may be imposed based solely on the jury’s guilty verdict, without additional findings.
¶ 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
§ 13-703 (containing no language requiring findings of fact on circumstances judge considers in imposing prison term of natural life or life with the possibility of parole)
with
§ 13-702(B) (requiring factual findings on aggravating or mitigating factors);
see State v. Harrison,
¶ 31 As previously noted, at the time Sanders committed the offense, § 13-1105(C) provided that “[f]irst degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by section 13-703.” 2000 Ariz. Sess. Laws, ch. 50, § 2. The legislature added the natural life alternative to § 13-703 in 1993. 1993 Ariz. Sess. Laws, eh. 153, § 1. At the time Sanders committed the offense, § 13-703(A) provided:
A person guilty of first degree murder as defined in section 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 §§ 13-703 and 13-703.02 and added § 13-703.01, without subsection (Q). 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 7. But those provisions, which the legislature expressly made applicable to all senteneings and resentencings conducted after August 1, 2002, the effective date of the statute, relate to the death penalty, not the life imprisonment term. 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, §§ 3, 7(A).
¶ 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,
¶ 34 As discussed earlier, in
Viramontes,
our supreme court found § 13-703(A) clearly and unambiguously required trial judges to consider the aggravating factors listed in § 13-703 rather than those in § 13-702 in choosing between a prison term of natural life or life with the possibility of parole. We conclude the statute is equally clear that the legislature intended to provide one sentencing option for persons convicted of first-degree murder other than death: a life term of imprisonment. The legislature gave trial judges the discretion to choose alternative conditions for that life term — natural life or life with the possibility of parole in twenty-five or thirty-five years — but neither alternative may be characterized as the presumptive term, and both may be imposed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ... without any additional findings.”
Blakely,
— U.S. at —,
¶ 35 The notion of a “presumptive” prison term derives from language in A.R.S. §§ 13-701 through 13-702.02; it is considered the sentence that should apply in most cases.
See State v. Thurlow,
¶ 36 In
State v. Ovind,
¶ 37 In contrast, here we have no reason to apply the rule of lenity because our supreme court stated in
Viramontes
that § 13-703 is clear and no conflicting statute creates an ambiguity.
See State v. Fell,
¶ 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,
¶ 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,
¶ 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,
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.
¶ 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,
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,
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,
. Division One of this court’s decision in
Nation v. Colla,
. 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 § 13-703 as interpreted by our supreme court in Viramontes. The state adds that, moreover, Vira-montes had not been decided at the time Sanders committed the offense. For the reasons previously stated, the supreme court’s interpretation of § 13-703 is the meaning we give to that statute, not a subsequently enacted statute purportedly clarifying the previous statute in a manner inconsistent with Viramontes. Thus, the law at the time of Sanders's offense was § 13-703 as the supreme court interpreted it in Viramontes.
. 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 § 13-703 implicitly requires a court to make factual findings. And, he claimed that principles of due process require that such findings be made because, without them, there is no way to meaningfully review for an abuse of discretion a trial court’s decision to impose a natural life term rather than life with the possibility of parole. These arguments are not without merit. But the legislature did not require express findings. Indeed, it did not require them when it enacted § 13-703.01(Q). Had it wanted to, it could have done so, as it did in § 13-702(B), which applies to crimes other than first-degree murder and provides that an aggravated prison term may not be imposed unless “the circumstances alleged to be in aggravation ... are found to be true by the trial judge ... and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing."
See State v. Harrison,