State v. Henderson

100 P.3d 911 Arizona, Appellee,

STATE of HENDERSON, Appellant.

Robert Allen

No. 1 CA-CR 03-0920. Arizona, Appeals

Court of 1, Department

Division D.

Nov. 2004.

As Corrected Nov.

Review Granted Part March Goddard,

Terry Attorney General Counsel, Howe, Criminal Randall M. Chief Acedo, D. As- Appeals Section and Nicholas General, Phoenix, Attorneys Attorney sistant Appellee. for Haas, County Maricopa J. Public James McGee, By Deputy Edward F. Defender Defender, Phoenix, Attorneys Ap- Public requests serfs error and pellant. imprisonment sentence for unlawful be vacate

d.2 has supplemental This court received briefing parties each on the OPINION Because issue. we remand Blakely not reach we need the initial sen BARKER, Judge. tencing by presented appellant. issues We opinion 1 We address in this one of the jurisdiction pursuant to Article Sec by presented issues the United States Su tion 9 of Arizona the Constitution and Ari preme in Blakely Court’s recent decision (“A.R.S.”) zona Revised Statutes 12- sections — U.S. —, Washington, 120.21(A)(1) (2003), (2001), and 13- Specifically, L.Ed.2d 403 we hold 4033(A)(3)(2001). that the aggravating failure to submit factors jury pursuant Blakely a is not structur II. al error requiring automatic reversal. Rath Blakely, 5 In the Court held that er, we determine that error is sub judge punishment “[w]hen a inflicts that the

ject to a or harmless error fundamental error jury’s allow, does jury verdict alone not the may may require and reversal has not the found all facts ‘which law particular based on the facts of the In case. punishment’ makes essential and the this case we find the error is not harmless. judge proper authority.” exceeds his Accordingly, for resentencing. we remand 1 J. (2d Bishop, § Criminal Procedure at 55

I. 1872)). ed. The Court stated “the ‘stat utory Apprendi maximum’ for purposes ¶ 2 Robert Allen Henderson (“appellant”) the maximum judge may sentence a impose appeals following his sentences conviction in solely on the basis of facts reflected Appellant trial court. was indicted on by verdict or admitted the defendant.” kidnaping, three counts: felony; a class 2 explained The Court further that “the assault, misdemeanor; a class 1 and threat ‘statutory relevant maximum’ is not the max ening intimidating, a class misdemeanor. judge may imum impose sentence a after trial, After a was he convicted of the two facts, finding additional maximum charges. misdemeanor find did not judge] may [the impose without addition guilty him kidnaping, of but instead found findings.” al guilty him of the of lesser-included offense imprisonment, unlawful felony. 13-701(A) (2001) a class 6 Arizona, § 6 In A.R.S. provides felony “imprisonment for a sentencing, 3 At the trial court sentenced years” shall term be definite and then appellant to six months’ incarceration for years applicable sets forth the term each of the misdemeanor counts. For the felony appellant’s first-time offenses. For count, imprisonment unlawful the court im- conviction, felony class 6 term is one posed an exceptionally aggravated prison 13-701(C)(5). year. § A.R.S. This term is years. term of two All three sentences were typically presumptive as the referenced term. concurrently. ordered to run Brown, 325, 332, ¶ 24, State v. Ariz. ¶ Appellant timely appealed. (App.2003). His initial P.3d language brief requested Blakely, raised two issues and “statutory this is maximum.” time, — U.S. at —, sentence be vacated.1 Since that 124 S.Ct. at 2537. 13-702(A) Appellant provides was announced. Section now as- Appellant initially alleged Appellant trial court asserts that further on remand Ari- erred in on scheme, the sentence the two misdemeanors light Blakely, zona's no by giving for the him credit exact amount longer permits aggravated argu- sentences. That pre-sentence his incarceration. He also contend- Conn, recently rejected ment by considering ed that the erred trial court two (App.2004). 98 P.3d 881 improper aggravating using factors and them to justify exceptionally aggravated term. to the trial provide “entitlement” may “increased or presumptive sentence be statutory maximum by That section also above the reduced the court.” to sentence “[a]ny or increase provides that reduction must be so submitted.3 on and miti based shall be appellant received gating circumstances” set forth therein under A.R.S. super-aggravated sentence range specified. Id. As to be limited to the 13-702.01(A) “the nature violent § based appellant convict the offense for which facts,” injuries caused trauma and ed, 1.5 upward years. limit is Id. Section victim, age, appellant’s victim’s 13-702.01(A) “if provides that further All facts were of these lack remorse. ag least two substantial court finds that at preponder (applying the court § gravating listed in 13-702” factors standard), (applying ance present, further then sentence standard). Thus, beyond reasonable doubt a years. two increased to Blakely in ease. error there ¶7 Applying Blakely’s of definition ¶ that party requested a Neither “statutory maximum” to Arizona scheme the aggravators beyond the a reason determine following Unless admit renders the result: Nonetheless, Blakely applies able doubt. by parties, by ted defendant or waived pending still when here because this case was any beyond presumptive a term sentence Ken Blakely v. was decided. See aggravating be based on at least one must Griffith 314, 322-24, 107 708, 93 tucky, by jury purposes a for of A.R.S. factor found (1987) (holding newly an L.Ed.2d 649 13-702(A) § least two at “substantial” be constitutional rules must nounced aggravating purposes factors for of A.R.S. final); yet v. to that are not State 13-702.01(A). cases § Blakely, in As stated Wilson, 12, 17, 18, 207 Ariz. 82 P.3d judge’s authority impose Whether the to (“[A] supreme opinion (App.2004) court depends finding an enhanced sentence a applies any pend to eases that generally (as specified Apprendi), fact in of filed.”). we opinion at time is As (as Ring), in or specified several facts below, Blakely presents the issue (as discuss here), aggravating fact remains may depending constitute fundamental error jury’s that the alone ease verdict does ¶ 15 on the circumstances of case. judge authorize sentence. The ac Infra fun (citing holding that we review for cases authority finding quires only upon objection regardless error of an in damental some additional fact. court). Blakely We now turn to — the trial (emphasis at U.S. particular. general and in this case added). Thus, Blakely “by now holds of the facts reason the Sixth Amendment

bearing upon that entitlement must be found III. by jury,” by a unless admitted the defendant (em must consider whether We first parties. or waived at (1) added). is structural error phasis disposition on Because of our mandatory regardless here, requires reversal do the various factors we particular on the impact the error aggravating whether all factors not address (2) proceedings at issue or trial error is upon imposing a which relies subject to a harmless error or fundamental aggravated sentence must be submitted to determining or only minimum whether or whether number before this, ¶¶ instance, two 45-46. This issue was addressed in 3. For in a case such as if See infra 284, 16, Martinez, 100 P.3d Ariz. factors had either been found Conn, 34, ¶ finding (App.2004) v. and State be determined to failure such could harmless, judge’s V12 question is whether be ("Once subject (App.2004) sentence within upon is authorized to reliance additional factors still sentences, Blakely’s only say statutory range aggravated requirement. for Because we can punishment’ ‘legally error as one of the substantial facts essential aggravation or this case been found. Other factors in factors harmless in considered.”) mitigation (quoting (and required per § then be were A.R.S. 13- two —, 2543). 701.01(A)), 124 S.Ct. at we issue here. need decide that ” required. concepts not reversal is As er presented.’ evidence Id. at error, Fulminante, trial (quoting fundamental er- P.3d at 933 v. Arizona ror, 307-08, and harmless error are critical to our 111 S.Ct. (1991)). analysis, only we first set forth the definitions we L.Ed.2d When errors employ. present do are trial we not automati- cally judgment do reverse the as we with structural error. We consider whether the A. judgment error affected the and we affirm supreme explained As judgment the trial court if the error Ring, 204 Ariz. State 65 P.3d 915 was harmless a reasonable doubt. (2003) III”), (“Ring “structural errors ‘de Though trial standards for error are prive protections” defendants of “basic with interchangeably, employed sometimes out which a reliably “criminal trial cannot categories. trial consider two broad its serve function as a vehicle for determina First, trial objection which an guilt tion ... no innocence criminal subject trial made at harmless error punishment may regarded as fundamen Second, analysis. trial error to which no ’ ” ¶ 45, tally fair.” Id. at 65 P.3d at 933 objection made to a Neder United review fundamental error. 8-9, 144 L.Ed.2d 35 ¶ question 14 While the of struc Clark, 570, (quoting 577-78, v. Rose tural error versus trial concerns whether an 3101, (1986))). 106 S.Ct. 92 L.Ed.2d 460 reversible, automatically error is harmless occurs, structural When error we automati analysis analysis error ¶ or fundamental error 552, cally 45, judgment. reverse the Id. at requires asks whether a trial error reversal. 65 at given P.3d 933. No consideration is only say, is “Error harmless if we can be setting factual whether error yond doubt, a ‘did reasonable it may may not be harmless. Structural contribute to or affect verdict.’ Put an requires error reversal. way, proper inquiry other is ‘whether ¶ “relatively 12 There are few in guilty actually verdict rendered ... was stances in which regard we should error ” as surely unattributable to the error.’ State v. ¶ 552, 46, structural.” at 65 P.3d at 933. 496, Green, 501, ¶ 21, 271, 200 Ariz. 29 P.3d (providing listing a of errors that constitute Bible, (quoting 276 State v. 175 Ariz. error). court, supreme structural Our 588, (1993)). 549, 1152, 858 P.2d 1191 Error identifying particular circumstances that may be even if it is harmless constitutional error, constitute structural has held that “[i]n Bible, 588, error. Ariz. 175 at 858 P.2d at instances, all those the error infected ‘the (“Error, 1191 other be constitutional or process’ beginning entire trial to end.” wise, if say, beyond is we harmless can 553, ¶46, Id. at 65 P.3d at 934. (quoting doubt, reasonable that the error did not con Neder, 1827). 8, 527 at verdict.”) (emphasis tribute to or affect the inquiry the critical for structural error is added). “ process’ whether ‘the entire trial from be analysis presents 15 Fundamental error ginning to has end” been affected. Id. inquiry a similar to that of harmless error. mentioned, generally apply 13 direct contrast to struc As we fundamen objection error tural is trial error. This is error tal when error an was not analysis, preserved is to either a harmless error raised at trial or otherwise for our trial, objection See, if an at e.g., Kayer, made to a review. Ariz. 430, (1999) (“Be objection analysis, fundamental error if no 984 P.2d trial, objection was made at trial. “Most errors that we cause no ... at made we on appeal, involving only consider even those con the claim review for fundamental er error, Bible, errors, ror.”); stitutional constitute 175 Ariz. at P.2d at (“Absent presentation error, ‘which during party oceur[ ] fundamental may usually appeal case and which therefore cannot raise error on unless a quantitatively objection proper a[sic] assessed context oth- was made trial.... er- harmless error cannot be may ... be raised fundamental ‘Only error fundamental 5 Bible, ”) at 858 P.2d at 175 Ariz. ror.” appeal.’ on State for the first time 1175; at Ariz. at 424 n. P.2d Holder, 83, 85, King, 158 155 Ariz. P.2d (1988) (“[A] error is not (1987)). 244 n. 4 harmless fundamental.”). Fundamental error is error is “error 16 Fundamental only trial.” State is “curable via new going to the foundation of the 153, 155, Gendron, 812 P.2d 168 Ariz. right essen that takes from defendant defense, magni tial his and error of such though that error we consider 18 Even possibly could not tude that the defendant harmless, cannot be found to be fundamental Hunter, a fair trial.” State v. received er key concept is fundamental another (1984).4 Ariz. To error. equivalent is not to structural ror Critically, whether error determination above, princi summarize from the cases case-specific and based pal between fundamental error differences Bible, 175 particular record of the case. deter and structural error these. To inquiry P.2d Ariz. at at exam mine whether error is fundamental we this, “fact intensive.” Because of “the analyze role of the case and ine facts may in one same error be fundamental case particular case. of the error as emphasize but not in We another.” Id. For King, 158 Ariz. P.2d key point: error, having initially discovered course, Fundamental does not fur do not examine the facts determining occur the abstract. After if the automatically ther reverse trial, preju- “the error occurred present. Ring unobjected-to dicial nature of the P.3d at 933. Error is fundamental light must be evaluated in of the entire another; may case be fundamental can record” before be labeled differing cases. differing results occur in fundamental. Bible, 572, 1175. 175 Ariz. at 858 P.2d at 419, 424, 763 King, State v. 158 Ariz. P.2d However, in case error that is structural 239, (1988) Thomas, 244 State v. 130 requires and is structural another case (1982)). 432, 1214, 436, Ariz. 636 P.2d 1218 every it found. reversal in case which is ¶ Thus, 552, ¶ 45, at inquiry Ring 17 at 65 P.3d as to whether 204 Ariz. analysis Finally, if of error inquiry error is fundamental is similar to the 933. our fundamental, engage is it is we to whether error is harmless: an error shows that not analysis uphold first identified and then a in no further error and determination Bible, Ariz. judgment made as to is either fundamental of the trial court. 175 whether it 573-74, However, or P.2d On other harmless. once error is deter at 858 at 1176-77. hand, definition, fimdamental, “[b]y be if the error is strue- mined to we determine courts, analogue recognize that some this court's deci- "[w]e In the federal the closest of is the doctrine our doctrine of fundamental error error sions have bifurcated the fundamental 52(b) According "plain of error.” to Rule aspect analysis and into fundamentalness Procedure, plain "[a] of Thomas, Federal Rules Criminal aspect. at harmlessness See 130 Ariz. rights may that affects substantial be con- error 1, at 1218 n. 1. some 436 n. 636 P.2d though brought sidered even it was not error, first labeled it funda- decisions have Supreme court's attention.” The Court has held mental, applied then harmless error and that, doctrine, appellate an can under that court 465, See, analysis. e.g., Henley, v. 141 Ariz. State only correct error raised at trial if there is an 468-69, 1220, (1984); v. 687 P.2d 1223-24 State plain and that affects substantial error 330, 1242, Sorrell, 328, P.2d 1244 132 Ariz. 645 rights, seriously fair- and the error affects the Anderson, 238, 241, (1982); 110 517 State v. Ariz. ness, public reputation judicial integrity, or 508, (1973); Shing, Ariz. State v. 109 P.2d 511 proceedings. U.S. Johnson v. United 520 365, 698, 361, (1973).” 702 P.2d 158 509 1544, 461, 466-67, L.Ed.2d 718 117 S.Ct. 137 4, (1988). 4 Be- 424 763 P.2d at 244 n. n. analytical we framework cause believe the King clearly Bible and more demonstrate error tracks that Our error and struc- King. difference between fundamental Supreme and Court in Bible the Arizona employ King, we tural here. As the Arizona Court noted ¶ 22 tural, Court, relying we still review to determine Arizona Supreme whether (if objection Cotton, Apprendi the error is fundamental no has held that error is made) (if objection an Sep harmless reviewed for harmless error. State v. made). Cox, ahi, 321, 732, at trial was 201 Ariz. 206 Ariz. 324 n. 464, 468, 13, 437, (2003) Cotton, (App.2002). P.3d (citing n. 3 Blakely 1781) We 632-33, now turn to whether error is (stating 122 S.Ct. that under requires structural automatic re- present “any Ap the circumstances there every harmless”). versal in case Likewise, or whether it is trial prendi error would be subject to a has, fundamental error or every circuit federal our re analysis. harmless error search, holding uniform in Appren been

di error can be reviewed harmless for error. Perez-Ruiz, g.,E. B. United States v. 353 F.3d Cir.2003) 1, (1st (“An Apprendi error is ¶ 19 In addressing question affecting a ‘defect framework within Blakely whether error is structural but, rather, proceeds,’ which the trial ‘simply Blakely’s predecessors, look first to Appren ”) an process error in the trial itself.’ (quot Jersey, di v. New 120 S.Ct. Fulminante, 499 U.S. at 111 S.Ct. (2000), L.Ed.2d Friedman, 1246); United States v. 300 F.3d Arizona, 122 S.Ct. (2d Cir.2002) (subjecting 127-28 an al ”). (“Ring L.Ed.2d 556 II leged Apprendi error to harmless error re Apprendi 20 The law regarding er view); Henry, United States v. 282 F.3d ror analysis. is a substantial factor (3d Cir.2002) (“[A]n Apprendi error is sub-specie error is a Apprendi defect, instead, not a deciding error. the Court plain analysis, depend harmless Apprendi rule: ing upon presence objection trial.”); Strickland, United States v. requires apply This case us to the rule we (4th Cir.2001) F. 3d expressed (evaluating 379-80 Apprendi v. New Jersey, 530 Apprendi defendant’s claim under plain (2000): doctrine); Matthews, prior “Other than the fact of a (5th Cir.2002) conviction, (“Apprendi F.3d any fact pen- that increases the susceptible alty analy to harmless error beyond prescribed crime sis.”); Stewart, United States v. statutory maximum F.3d must submitted to a (6th Cir.2002) proved (evaluating Ap a reasonable prendi error); claim for harmless United doubt.” Trennell, (7th 881, v. States 290 890 F.3d — 124 S.Ct. at 2536. Cir.2002) (finding Apprendi harmless); error clearly 21 Case law indicates that Frazier, 835, United v. States 280 F.3d 855- Apprendi error is not structural but is trial (8th Cir.2002) Apprendi 56 (evaluating claim subject to either a fundamental error plain doctrine); under United States v. or a harmless error In analysis. United Velasco-Heredia, 1080, 319 F.3d Cotton, 625, 632-33, States v. 122 (9th Cir.2003) (finding Apprendi error not 1781, (2002), S.Ct. 152 L.Ed.2d 860 the Su reversing); harmless and therefore United preme Apprendi Court held that an error did Lott, 1231, (10th v. States F.3d require reversal because “the error did Cir.2002) plain (applying fairness, seriously affect integrity, claim); Apprendi Suarez, v. public reputation judicial proceedings.” Cir.2002) 1287, (11th 313 F.3d (“[A]ny Utilizing the standard for structural error harmless.”); Apprendi error was United Arizona, employed in this is clear delinea 1043, Lafayette, States v. 337 F.3d Apprendi tion that error is not structural (D.C.Cir.2003) (“[A]ny Apprendi error was error but to a harmless error or harmless.”). analysis. If Apprendi er structural, ror were Apprendi reversal would have 23 Just as error under is not structural, required. been Ring neither is error structural. here). (which not occur did III, sonable doubt Ring supreme In court held argument for harm- Though we believe [aggravating fac to submit “Arizona’s failure Cotton, 535 U.S. review based on less error structur does constitute tors] the related cases S.Ct. at 65 P.3d at al error.” 204 Ariz. to address the burden compelling, we wish Instead, capital reviews those proof further. issue for harmless error. Id. Su sentences subsequently certiorari preme ¶ 24 Court denied Louisiana, In Sullivan capital (1993), in which the Arizona Su in a case S.Ct. error as preme Ring identified the Court Supreme Court held that the United States affirmed a death sentence. harmless and in constitutionally reasonable doubt deficient 281-82, Sansing, 206 Ariz. 77 P.3d 30 State v. at error. Id. was structural struction — U.S. —, (2003), denied, noting cert. most consti 2078. After 113 S.Ct. (2004). In a 159 L.Ed.2d 816 recent harmless er are amenable to tutional errors III capital applying Ring the Arizona that when analysis, case the Court reasoned ror ap Supreme explained: improper proof Court burden of has been an error anal plied, framework harmless judicial Ring concluded that 279-80, ysis does not exist. capital sentencing fact-finding pro that, in explained applying 2078. The Court may if we cess constitute harmless error review, question re harmless can conclude a reasonable doubt viewing upon to consider courts are called no fail to find reasonable would jury, but the error had on the not what effect circumstance. 204 Ariz. guilty ¶¶ verdict itself. what effects had 53, 103, P.3d 279, 113 S.Ct. 2078. Summerlin, —, Schriro —, words, L.Ed.2d is not wheth- inquiry, other (2004), er, Court held in a trial that occurred without surely II Ring procedural guilty “announced a new verdict would rendered, apply retroactively guilty rule that does not ver- been but whether already actually cases final on direct review.” trial was dict rendered this surely II That appear errors thus to be trial error. unattributable so, hypothesize guilty errors that be reviewed for harmless must be because to error. verdict that was never fact rendered— findings to inescapable no matter how 360, 362, 6, Armstrong, 208 Ariz. support might be—would vio- verdict appealing P.3d It jury-trial guarantee. late the argument, notwithstanding the difference proof, “judicial guilt beyond no burden of that as fact- Id. Where verdict rendered, finding” capital not struc- has there context is reasonable doubt been meaning “judicial fact-finding” tural in the non- has been no verdict within Amendment, capital question so “the context should also not be structural of the Sixth guilty-beyond-a- Though argument appeal, the same verdict of error. has whether the holdings non-capital Apprendi on would have been rendered based error reasonable-doubt utterly stronger Ring on the constitutional error are even than those based absent 280, at 113 S.Ct. 2078. capital setting. meaningless.” error in is because Id. This argu- applied cases are to non-capital Apprendi error as jury by a there was no ver- pre- on found ment that because based factors (as aggra- beyond a doubt on ponderance of evidence in the case dict reasonable here) factors, vating there no basis for harmless whereas cases are based error upon sentencing a structural.6 beyond factors rea- error review and error is Rossi, ing. the court not state that the error 706 P.2d While did In State v. 146 Ariz. 371, structural, (1985), applying supreme also it remanded without 380 our court held that, recognize wrong analysis. error We also the trial used “the harmless because 360, Johnson, 358, determining applying mitigat- 183 Ariz. in State v. standard for and 1116, (App.1995), we that "it was capital to 1118 held in a the court had factors” have for the trial court to and resentenc- fundamental error vacate the sentence remand for

308

¶ Notwithstanding reasoning charge jury on Sullivan’s failed the element requirement Apprendi’s materiality,” and that a find that error did not render the any penalty unfair,” “that fact increases the for “fundamentally trial de- because the doubt,” beyond a crime ... reasonable judge, impartial fendant “was tried before 490, 120 2348, at our U.S. S.Ct. review of the proof under the correct standard of and with counsel; cases referenced above shows that courts fairly se- [and] the assistance (if overwhelmingly uniformly) have lected, sub impartial jury was instructed to con- jected Apprendi error to harmless re argument all sider of the evidence and ¶ 21; Matthews, Supra e.g., view. 312 F.3d respect against defendant’s] defense [the (acknowledging 661-67 that the trial Utilizing charges.” the tax Id. the frame- relating gangs found facts to criminal street above, work for structural error described by preponderance but “[a]f the evidence Sullivan holds that an error in the instruc- record, ter a careful review of the whole pertaining tion on reasonable doubt any grand jury, convinced that rational entire case results in structural while indictment, presented proper when with a Neder holds that the failure to instruct all any charged, petit would have rational on one element is not when presented when proper jury with a properly is otherwise instructed. instruction, would found [the factors] ¶ 27 Neder, the defendant made the doubt”); beyond Stewart, a reasonable argument for structural error based on Sulli 315, (acknowledging F.3d at the trial Neder, van. 119 S.Ct. 1827. judge applied preponderance “a mere stan argued He harmless could dard, doubt,” and not a reasonable object applied not be because there was no finding harmless because the operate; on scrutiny which the could regarding drug “uncontroverted evidence proper proof burden had not been quantity” convinced the court that the error According element offense. Id. harmless); Burns, reasoned, logic, to Sullivan’s the defendant (6th Cir.2002) (“Any F.3d Ap prevents “where the ... constitutional error prendi harmless.”); ... United rendering a ‘complete from verdict’ Garciotr-Guizar, States v. 234 F.3d 488- every element of ... the offense the basis (9th Cir.2000) (evaluating Apprendi claim simply harmless-error review ‘is ab doctrine). under harmless error More im ” sent.’ Id. Brief for Petitioner at portantly, two United States Court Neder, (if compel) decisions lead to this conclu 97-1985) (No. L.Ed.2d 35 available at 1998 sion. 828332). rejected argu WL Court U.S., 26 In Neder v. United ment, that, stating “[a]lthough this strand 19-20, (1999), L.Ed.2d reasoning provide sup Sullivan does the Court held that the trial court’s failure to port position, for [the defendant’s] it cannot instruct the on an a charge element of squared our with harmless-error cases.” was not structural error but should be re- viewed as trial error. The Court stated: ¶ 28 view, complete depri- “Unlike such defects unanimous Court’s vation of Esparza, counsel trial before biased decision in Mitchell judge, (2003), an instruction that omits an element of 124 L.Ed.2d 263 is the not necessarily linchpin determining offense does render a that error under fundamentally Apprendi presents criminal unfair an un- scenario determining guilt reliable vehicle for or inno- than closer Neder Sullivan. The rationale cence.” S.Ct. 1827. The Court lead a conclu Sullivan would toward that, erroneously Apprendi Blakely added while “the court sion that or error is struc 13-604(R) error, question] § [an submitted A.R.S. to not structural and fun- case, however, juiy.” the In that the asked premised upon particularized State is damental error a the to have sentence and did vacated not contest analysis at of the facts in the case hand. See Further, resentencing. speci- the need for as ¶¶ supra 14-17. herein, question fied was on a Johnson based If Supreme Court proof 30 As the an incorrect burden of tural because af have Court and the Arizona to factors. the has firmed, error which error is hand, Neder, from on the other rationale process’ from be ‘the entire “infected Apprendi to a conclusion that would lead 204 Ariz. at ginning to end.” error Blakely error is to harmless Neder, 527 (quoting U.S. 65 P.3d at analysis long jury’s on the as as the verdict Abrahamson, 1827); Brecht v. S.Ct. to it other of the offense submitted elements S.Ct. U.S. beyond a reasonable doubt. were found in (stating that structural defects in follows: 29 The Court held Mitchell as standards). defy error the trial harmless the to Blakeley the failure submit error is eases, noncapital In held we often necessary a jury to entitle facts to a to a that the trial court’s failure instruct impose the statu to a sentence jury an statutory all of the elements of on tory maximum. analy- subject to offense is harmless-error Blakely error does S.Ct. Neder, example, sis. we held that .” beginning infect the trial “from to end markedly such an error “differs from the Rather, only portion the pertains to that to violations we have found constitutional judgment upon aggravated the sen- which defy hold- harmless-error review.” In so being rather than' tence is based. ing, explicitly distinguished we Sullivan Sullivan, it a structural error under becomes because the error in Sullivan —the failure question appropriate for fundamental error jury to must instruct that the State under Neder or harmless error prove beyond a the elements anof offense A consider the ele- Mitchell. court should jury’s all doubt —” ‘vitiated reasonable evi- ments that were ”’ whereas, findings, the trial court’s fail- them, supports relied dence that the evidence jury ure instruct the one to on element of sentencing, upon by judge at and all an did not. Where offense in pertinent determining other factors wheth- precluded determining only one ele- Blakely was harmless funda- er offense, of an ment held harmless- inquiries and mental. These are critical error review is feasible. Blakely on error. mandate reversal based not, however, They Blakely added). convert do 11 (emphasis Mitchell in requiring into structural error reversal distinguished thus failure between Sullivan’s every impact regardless instance of its on provide every proper proof to burden of on inquiry. case at hand. It is individualized provide element and to Neder’s failure proper proof to one burden of as element. we, analyzing Blakely in 31 Nor do We find this distinction Neder and between error, overstep for harmless the role significant. is Sullivan to be trial. ensuring right in to court much more akin to the error Neder than Neder, review explained “[a] As the Court Sullivan. the case of inquiry making this harmless-error aggravated is the defendant’s sentence does ... effect second ‘become judge using based on facts found the defendant is to determine whether ” preponderance of the evidence standard. guilty.’ However, certainly This now error. Traynor, The Harmless (quoting R. Riddle of already (1970)). defendant has had a trial in which a Rather, ex Error 21 Court beyond a court, has determined reasonable typical appellate-court plained, “a guilty he or of an offense. fashion, doubt that she record contains asks whether certainly failing to Blakely error is closer to rationally lead to a con evidence that could of- properly instruct on one element of an ele trary finding respect to the omitted with (which ‘no,’ ele- question fense casts doubt on ment. If the answer ment) failing properly ‘reflec[t] than it instruct error harmless does not holding the in every rights proof denigration on the element of the constitutional burden ” added) (which (emphasis entire casts doubt volved.’ offense 3101). Rose, verdict). 478 U.S. at

310 circumstances, harmless.”) present

“omitted here can element” was a be Harrison, 1, ¶ 21, finding 6, of “at least aggrava two substantial State v. 985 195 (1999)). 486, ting factors listed in exercising section 13-702.” A.R.S. P.2d 491 This rule of 13-702.01(A). § beyond great adding a category caution before a to the required particularly reasonable doubt each fact to im list of applica structural error is pose one-year a supreme already to ble sentence. failure when has (or jury) Apprendi instruct on submit subject element identified that error is to a necessary impose aggra analysis, Sepahi, offense harmless 206 Ariz. ¶ 19, may may 3, 3, vated require sentence or re 324 n. 78 P.3d 735 n. depending upon versal Blakely the facts of of the case. error is at its core another form description Apprendi This is a classic of a application harmless error based on analysis appellate Blakely, that that 124 rule. See U.S. long employed courts have infringe without S.Ct. 2536. upon right Chap ment to a trial. ¶ 33 courts, We note too that other since 18, 23, California, 24, man v. have also harmless 824, 17 (1967) (stating S.Ct. L.Ed.2d 70S “our analysis to Blakely violations.7 United prior cases have indicated that there are 102, (2d Mincey, States v. 380 F.3d Cir. rights some constitutional basic so to a fair 2004) (reviewing Blakely violation harm trial that their infraction can never be treat error); McDonald, less State v. 136 N.M. ed as harmless acknowledging error” while 667, (2004) (“[E]rror P.3d “before federal constitutional error can element, failing to instruct on an harmless,

be held must the court be able Appren even constitutional error founded on declare a belief that it harmless di, subject analysis to an for harmless doubt”). a reasonable error.”); Butler, (People v. 122 Cal.App.4th ¶ 32 (2004) Holding Blakely 910, (review Cal.Rptr.3d 310, is not comports error)); prem ing Blakely also with basic violation for harmless adding Stinson, ise category of structural error State v. No. E2003-01720-CCA-R3 CD, those enumerated in III July should WL (Tenn.App. be at *8 Rose, 2004) great (same); done with care. See King, State v. 372 N.J.Su 227, 245-246, in part per. (Ct.App overruled on 858 A.2d Abrahamson, .Div.2004)(same). grounds; other Though we have discover (“[I]f contrary, S.Ct. 1710 the defendant had they coun ed two cases to the are either adjudicator, directly sel and was an impartial tried based applica local state law not strong presumption any here, there is a Speight, other ble State v. 602 S.E.2d subject errors that (N.C.Ct.App.2004)8, out-of-step occurred with analysis.”); overwhelming majority harmless-error Delaware v. Van cases hold Arsdall, 89 Apprendi subject error is to a harmless error (1986) Benson, (delineating L.Ed.2d 674 analysis. limits to the No. M2003- 02127-CCA-R3-CD, “automatic reversal rule” that accompanies 2004 WL 2266801 error); Hickman, 2004).9 types Oct.8, certain (Tenn.Crim.App. Additionally, State 192, 198, ¶ 29, held, 205 Ariz. recently 68 P.3d 424 our own court has in three error, (“Virtually any particular separate opinions, Blakely under error is sub 7. with Consistent Arizona Rule of Civil Proce that errors mandate new sentenc- 28(c), ing hearing. dure we do not cases consider from other 602 S.E.2d at 12. jurisdictions designated that we know to non-published. Dept. Walden Co. Books Benson, In State v. Tennessee Court Revenue, ¶ 23, 198 Ariz. Appeals engaged analysis in a brief and conclud- ("ARCAP 28(c) applies to memorandum de type Apprendi ed that as a court"). cision from juiy right was a denial of an individual’s to a subject was not to a harmless Speight, In State v. the North Carolina Court of review. 2004 WL at *9. di- This cuts Appeals rectly against concluded that error was not United States v. Cotton and the many to harmless error based on decisions from the federal circuit courts. ¶¶ directing Supra North Carolina Court case 21-22. (2) crime, inju- trauma and the Re of the nature error review. State ject to harmless (3) victim, ¶¶ age the of the to sendis-Felix, 8-10, 100 caused the P.3d ries Ariz. (5) (4) remorse, Martinez, victim, ¶¶ appellant’s lack (App.2004)10; 8-10 ¶ ¶ made at time of 30, 35, 280, 285, 21, appellant the statements Ariz. 100 P.3d on Miranda-Cabrera, these factors We sentencing. consider (App.2004); State v. ¶ Ring ¶ III apply the of this ease and the facts (App.2004). P.3d Ariz. above, supra standard. discussed emphasize, as We

¶ 18, we review for fundamental that still Blakely though we determine that error even B. is not structural. ease, ¶ unique facts of this on 37 Based ¶ above, hold for the reasons we violence, trau- aggravators we examine Blakely trial error than error is rather that Ap- ma, injuries together. the victim to case- must decide on a structural error. We lesser offense of convicted of the pellant was Blakely error is harm- by-case basis whether imprisonment not convicted unlawful to It is or whether it is fundamental. less fact kidnaping. procedural This focuses question now turn. that that we (and con- presence of violence inquiry. injuries and trauma to the sequently the IV. it) properly flow from can be victim that greater as what differentiates the viewed A. from the crime kidnaping crime of lesser Compare imprisonment. A.R.S. unlawful considering 35 In whether er 13-1303(A) (2001) (“A un- person § commits going if it is ror is fundamental we ask “error by knowingly imprisonment restrain- lawful ease, takes to the foundation of the error that § person.”) A.R.S. ing another with right his from the defendant essential (2001) (defining kidnaping crime of defense, magnitude and error of such knowing restraint of the victim “with possibly defendant have re could physical injury” ... Hunter, to ... inflict intent ceived a fair trial.” State v. victim). only additional element P.2d im- kidnaping, as contrasted with unlawful applying Blakely this standard physical prisonment, the intent cause by applicable standard is enunciated injuries to the victim. “judi Arizona III: Court fact-finding ... constitute harmless cial jury fad The scenario created if we can conclude reasonable kidnaping in case is ing to convict on fail to that no would doubt reasonable Blakely. nearly scenario in the same as the Arm find the circumstance.” pled guilty Blakely, the defendant strong, 208 Ariz. at 93 P.3d at 1078 second-degree kidnaping. crime of ¶¶ (citing Ring Ariz. at at —, The trial court 124 S.Ct. at 2534. 946). Thus, we ask much to a sentenced the defendant then jury, beyond if this case reasonable finding term after that defendant harsher doubt, differently reasonable could conclude cruelty. acted with deliberate judge the trial did on least two than The Court noted 2535-36. aggravators.11 cruelty aggravating factor of deliberate essentially as the same element aggravated appellant’s The trial second-degree kidnaping from based factors: the violent differentiated sentence on five Resendis-Felix, earlier, all not decide whether As noted do was a concurrence 10. There asserting is not harmless upon must be aggravators relied Resendis-Felix, majority in but structural. The ag- only minimum number of considered by Ring III to reach the result felt "constrained” required gravators the trial court to to "entitle" Ring III did. 10. Even without that it range provided for within the defendant sentence (which correctly Apprendi we believe assesses 13-702.01(A). supra § See A.R.S. analysis), error as to a harmless error qualify as structural error. does not ¶¶ Supra 19-32. first-degree kidnaping, very charge remorse. acknowledge Those statements pled guilty the defendant fight avoid. Id. at and detention that formed the basis for —, 124 S.Ct. at 2539. the assault and unlawful detention. Having appellant declined to convict 43 At sentencing hearing, appellant of greater kidnaping, offense of we can- placed the blame on seventy-three-year- his beyond “conclude a reasonable doubt that old mother for the assault and unlawful de- no reasonable would fail to find the tention he upon inflicted her. This is not a aggravating violence, inju- circumstance” of circumstance in which a defendant has re- ries, upon and trauma to the victim Thus, which the mained silent. we need not consider trial court Armstrong, relied here. See 208 whether the Fifth right Amendment’s to si- 362, 6, Ariz. at 93 P.3d at recog- 1078. We precludes lence the use of lack of remorse as contrary argument nize that a can be made aggravator. Carriger, See State v. upon based jury’s finding of 142, 162, (1984) (“A assault. 692 P.2d However, jury’s because of the failure to guilty defendant is when convicted and if he greater convict on the kidnaping offense of chooses not publicly admit guilt, his that is (with physical its injury component), we do sentencing determination.”); irrelevant to a accept argument particular on the Hardwick, State 183 Ariz. of facts this case. (“[I]t (App.1995) P.2d would be disingenuous

irrational or expect or re- quire one who maintains his innocence to C. express remorse.”); contrition or but see ¶ 40 aggravator As to age, of the evi- McDonald, 260, 263-64, State v. 156 Ariz. dence at trial was that the victim was seven- P.2d (App.1987) (distinguishing ty-three years old. That same evidence was cases based on guilt refusal to admit and presented part presentence pro- approving the use of perjurious “defendant’s ceedings judge. before the This evidence testimony as an aggravating circumstance” was uncontested and uncontradicted. The and “evidence of a total complete and unre- jury, however, was not instructed to make a pentence and lack of desire to change”); finding of the victim’s age. Neither age Lask, 612, 614, 135 Ariz. 663 P.2d a necessary element of offense for which (“[I]t (App.1983) has been held that appellant was convicted. it was not there is no fifth amendment violation in a implicit in jury’s verdicts. trial considering a defen- ¶ 41 Our expressly provides law dant’s failure to confess to crimes of which he whether “the victim of sixty- the offense is convicted.”). has been This is a case where years five or more age” an aggravating judge affirmatively the trial considered the 13-702(C)(13). § circumstance. A.R.S. Ap defendant’s own statements made to her at plying III, the standard Ring we have sentencing as a basis for finding a lack of difficulty no in concluding that on the record Greene, remorse. See State v. 192 Ariz. in this case no reasonable could have 441, 40, (1998) (“We differently concluded than the agree that the statements [of con- defendant] concluded had the been instructed on bragging stitute and show a tremendous lack age. This though is so even finding age remorse.”). implicit is not jury’s verdict. The ¶ Thus, clearly there sup- evidence to Blakely error as to aggravator this port judge’s the trial use lack of remorse harmless. aggravator as an particular this factual That, setting. however, is not the standard D. whether, before us. The standard ¶ 42 aggravators As to the of lack doubt, of re- a reasonable “no reasonable morse defendant, and statements we would fail to find the aggravating circum- treat aggravator them as one based on Armstrong, stance.” 208 Ariz. at facts of this case. It 1078; is the statements P.3d at 204 Ariz. at appellant that form the Here, basis for the lack of appellant 65 P.3d at 946. also elements, are thus tence, and they are not any- to hurt judge “I never meant told the indictment, subject to the Constitution’s factual feelings.” body anybody’s On Apprendi, requirements.”); proof record, jury’s failure to find on given the 2348; 9, 120 Jones v. n. at 482 detention was kidnaping count that the physi- ... to ... inflict United “with the intent done (“It not, 13-1304(A)(3) (emphasis § injury,” A.R.S. cal today claim that course, anyone would added), Ring III say that we cannot sentencing must bearing on every with a fact met on this standard has been ease, In this the by jury____”). a be found circumstance. aggravators number of required minimum and Ring III standard meet the did not E. resentencing required. above, that 45 As discussed we determine reasonably concluded dif- a could have Y. ferently judge than the trial concluded only one five factors. This leaves four of the ¶ 47 colleague contends concurring Our two aggravating factor when substantial judge’s finding aggravated a “trial by required statute to authorize were by preponderance of the sentencing factors 13-702.01(A). § imposed. A.R.S. sentence error.” evidence constitutes structural Infra Thus, was not harm- error here primary flaws in the are two 55. There less. First, analysis.12 the concur concurrence’s not find at least two guilt 46 Because we do determining rence errs aggravating factors would have substantial case are sentencing phase of a phase and the by they had been so been purposes of deter separate proceedings instructed, Second, we do not address the issue of the concur mining structural error. Blakely error is harmless as a mat whether analysis error turns into of structural rence’s (or simply present) when a ter of law inquiry to the facts of tied additional, upon unneces judge trial relied particular ease.

sary beyond the mini aggravating factors required by we do not mum statute. A. aggravators upon decide whether all relied considered, treating sentencing guilt and As to by judge must be or whether consider) (and purposes of phases for phases as distinct must find we need error, Ring III is in- determining structural only aggravators minimum number There, Supreme Arizona judge to structive. required to “entitle” the sentence argument similar to that addressed an sentencing range above the statuto Court within argument made ry in the concurrence. maximum. See experienced a bearing “[c]om- had (referencing “facts that the defendant 124 S.Ct. at by jury entitlement”) added); right trial plete to] (emphasis [the denial upon that capital his trial. sentencing phase” of see also Harris United ¶19, 50, n. 204 Ariz. at 554 153 L.Ed.2d 524 omitted). (2002) (“Yet Under the (quotations at 935 n. 19 affecting all facts the defen sentencing phases of guilt After the view that punishment dant’s are elements. entities, convicted, the denial of may impose a a trial are two distinct judge accused is statute, during sentencing jury trial by right range provided sentence within way error in the same relating to the would be structural basing it on various facts during guilt right the of that a denial of and the manner which defendant id. at phase would be structural error. See Though these facts fense was committed. (observing that 65 P.3d at 947 impact on the sen- may have a substantial Sepahi, agree- Ariz. at 324 n. suggest that we are in determination 12. This is not to ¶ 19, ("[A]ny Apprendi portions P.3d at 735 n. 3 concurrence. with other ment harmless"), being instance, as mere dicta. would be we also believe the concurrence For Infra 16, ¶ 61. considering Supreme n. Court's the Arizona errs complete by jury right denial of to trial harmless error as contrasted with error). analysis, would constitute structural structural error U.S. v. Moham (7th Cir.1995) (find mad, 53 F.3d responded argument 49 The court to this by the determination restitution by observing capital comprises “[a] probation officer as contrasted with a federal trial, just guilt into divided and sentenc defect”), district was a “structural ing phases, always and has been understood necessary constitute dicta not decide such, both the U.S. Salemo, issue. F.3d ¶19, 50, Supreme Court.” Id. at 554 n. (3rd Cir.1995) (Alito, J., concurring) added).13 (emphasis P.3d at 935 n. 19 (finding majority’s decision to “decline to court went on to lack of a state engage analysis” in a harmless error dictum sentencing phase of the trial should contrary as it was not briefed and is to other Despite potential not be viewed isolation. decisions). If Court viewed as stat ly having large impact on the ing a new standard for the determination of phase, right the denial of the trial was they contrary structural error not structural error because “did not ren Supreme Ari United States Court’s and the fundamentally der the entire trial unfair.” Supreme zona Court’s determination that 554, ¶ 50, at (emphasis 65 P.3d at 935 added). structural error is that which has “infected regard The same is true with to the process’ beginning ‘the trial from entire to proof portions burden of to the of 553, Ring end.” 204 Ariz. at 65 at P.3d place guilt trial phase that took Neder, 8, 934 527 119 U.S. at S.Ct. portions place and the that took the sen 1827). tencing proceeding. ¶ 50 The concurrence also cites to three ¶ Thus, approach 51 the concurrence’s of Court decisions to considering guilt phase and the sentenc- support position guilt sentencing its that and ing phase separate proceedings to be for phases separately should be considered for purposes determining of structural error is purposes determining of structural error. appropriate. cases, however, 62. The cited are not Infra in the context of structural error and do not B. advance the concurrence’s conclusion that for purposes analysis of inappropriately structural error we 52 The concurrence also sentencing guilt separate- should treat and mixes the definitions of structural error and ly.14 coming The two federal circuit court cases fundamental error in to its conclu- cited, 62, directly attempts either do not ana- sions. The concurrence to distin- infra Cotton, and, lyze subject guish whether the error should be United States v. indeed recognize capital process 13. We III was a case Court observed due considerations may apply sentencing phase capital and this is not. There be instances in which of a trial in difference, see, e.g., that distinction they guilt makes Mar- apply the same manner tinez, Presnell, 16, 209 Ariz. at 100 P.3d at phase. 439 U.S. 99 S.Ct. 235. meaningful but see no basis to consider that But the Court in did not Presnell state guilt sentencing phases constitute "one trial” analyzed independently. phases should be capital non-capital States, for case and do not for a third cited case is v. United 330 Bozza determining case for whether structural 160, 645, (1947). U.S. 67 S.Ct. 91 L.Ed. 818 present. Bozza, legality modify- the main issue originally a sentence. The defendant had imprisonment been sentenced to and the trial case The first cited is itself. imposed court later fines in addition to the term stage separating guilt does not set Rather, imprisonment. The Court held that the addi- sentencing. requires generally that tion of the fines the defendant's sentence did sentencing statutory factors that increase the 166, jeopardy. not constitute double 330 U.S. at range punishment be to the same re —, analysis supports 67 S.Ct. 645. The Court’s quirements as elements at trial. U.S. at analyzed separate- idea that a sentence should be argue 124 S.Ct. at 2537. This would for a uni verdict, ly analysis tary, approach, does not from the rather than bifurcated in deter support sentencing mining structural error. The concurrence also conclusion certain 14, Georgia, cites to Presnell v. 439 U.S. 99 S.Ct. errors should be termed “structural errors” 235, (1978). resentencing. 58 L.Ed.2d 207 In that mandate which class cases limited error in a circuits structural from all federal unanimous result very errors vitiate few constitutional by reference because of harmless on the issue trial. See protections of a criminal of each ease. the basic the individual facts Infra 306-07, Fulminante, 279, ¶¶ 499 U.S. 61, v. 63. The concurrence contends Arizona 1246, See 113 L.Ed.2d the evidence was uncontested each case S.Ct. 461, of a v. U.S. terms United implicit verdict. also Johnson (1997) ques 1544, L.Ed.2d 718 analysis, begs 468, 117 S.Ct. above, a fact was Wainwright, whether v. (citing tion. As discussed Gideon (1963) bearing (complete on whether has no contested 9 L.Ed.2d S.Ct. Ohio, counsel); is struc upon Turney it was based 273 U.S. the error which v. denial of (1927) (biased tural; automatically required reversal L.Ed. 749 Supra present. Hillery, when structural judge); Vasquez ¶¶ 11, 18. (1986) L.Ed.2d 598 (racial grand in selection of discrimination hand, fundamental error 53 On other Wiggins, 465 jury); McKaskle v. inquiry. As noted is an individualized (1984) (denial above, Bible, supra length and set forth trial); self-representation Waller ¶¶ 15-18, “fact 39, 104 S.Ct. Georgia, 467 U.S. fun- intensive” “the same trial); (denial public L.Ed.2d 31 case but not in another.” damental (erro Sullivan, 113 S.Ct. 2078 Ariz. at jury)). “[ajppellant contested the error- instruction to fact that neous reasonable-doubt does turn this infected issues” constitutional violations Consequently, those little, case as concur- upon jury’s into a structural error if any, effect that have ¶ Rather, are asserts. 64. these rence error. judgment are reviewable harmless Infra up deciding considerations to take whether See, e.g., Spain, 464 U.S. Rushen v. In particu- error was this 78 L.Ed.2d 267 and n. S.Ct. fundamental. case, produced those facts lar contested (1983) (denial right pres of defendant’s to be fun- result where the error here indeed error). subjected ent at trial to harmless But weight of the individual damental. ¶ hand, structural error is 57 On the other particular change does facts case applied appropriately to those constitutional into structural error. “deprive pro defendants ‘basic errors ¶ Supra ‘a criminal trial can tections’ without which reliably function as vehicle for serve its VI. guilt or innocence ... and determination reasons, foregoing For the vacate punishment regarded no criminal for resen- appellant’s sentence remand ” fundamentally Neder fair.’ v. United opinion. tencing this consistent with 1, 8, 9, 119 S.Ct. Clark, (quoting Rose v. L.Ed.2d 35 THOMPSON, JON W. CONCURRING: 577-78, 92 L.Ed.2d 106 S.Ct. Presiding Judge. (1986)). leading The structural error WEISBERG, Judge, concurring. Sullivan, I find to be which similar case judge’s find- 55 I conclude that the Sullivan, a case. defective the instant by sentencing aggravated factors doubt” instruction violated “reasonable evidence constitutes preponderance of the Fifth Amendment and Sixth defendant’s Therefore, although I con- structural error. charged proved to have the offense rights majority, I by cur in the result reached beyond a reasonable doubt. reasoning. respectfully disagree with their Supreme Court conclud S.Ct. subject to harm ed that such error was error is defect Structural it “vitiates all the because less-error rather the trial mechanism” “constitution 281, 113 jury’s findings,” id. at process. in the trial simply than an error “consequences that neces Louisiana, 275, 281, 113 produces Sullivan v. indeterminate,” (1993). id. sarily unquantifiable and 282, 113 S.Ct. 2078. Court has States United Instead, there were two constitu retrial. such a retrial would focus First, tional errors. similar jury-relat only on those contested issues that had not Sullivan, ed error in judge the trial Neder, here therefore, been infected error. found sentence-related facts under a burden proposition stands for the that an uncontest- proof doubt, ed, less than a reasonable isolated change error that would not in violation of the Fifth and subject Sixth Amend verdict is to harmless error review Second, ments. ag meted out an rather than automatic structural error rever- gravated sentence based on facts not clearly decided sal. The Neder court stated its rea- in violation of the Sixth practical Amend sons for approach. requirement ment the maximum sen It would illogical not be to extend the tence allowed for an offense be that which is reasoning of Sullivan from a defective solely based on the facts reflected ‘reasonable doubt’ instruction to a failure jury’s verdict. Blakely Washington, to instruct on an element of the crime. 2536-38, U.S. —, — - —, But, as foregoing indicated discus- L.Ed.2d 403 The issue before sion, the matter is not res nova under orn- us, then, is whether the combination of these ease law. ifAnd the life of the law has not constitutional errors constitute structural er logic experience, been Holmes, see O. ror. I they conclude that do. (1881), The Common Law we are entitled stand back and see what would be ac- Clearly, of a use lesser burden of complished by such an extension in this proof in phase equiva- is the case. The omitted element was materiali- lent of the use of a lesser proof burden of ty. underreported Petitioner million on $5 guilt phase. However, majori- while the returns, his tax and did not contest the ty recognizes the seriousness of this materiality element of at trial. Petitioner see it likens the error here to the error suggest does not that he would introduce in Neder and concludes that harmless error bearing upon evidence the issue of review proper because the materiality if so allowed. Reversal without certainly “is closer failing properly in- any consideration of the effect of the error (which struct on one element of an offense upon the verdict would send the ease back element) casts doubt on that one than it is to for retrial-a retrial not focused at all on the failing properly instruct on the burden of materiality, issue of on contested is- proof as every element of the offense sues on which the (which properly was in- verdict).” casts doubt on the entire structed. doWe not think the Sixth conclusion, disagree. With I requires Amendment away us to veer Neder, 60 In the error was the failure to precedent settled to reach such a result. instruct the on one element of the crime 15, 119 527 S.Ct. 1827. charged. noted, however, The Court the defendant had not contested that element practical approach 61 This explains also Furthermore, at trial. the defendant did not the subsequent federal circuit court cases suggest even that at retrial he would by majority.15 intro- cited the Those cases be duce bearing evidence materiality. on fitting described as into catego- one two The Court declined to extend reasoning the group, ries. In the consisting primarily first subject Sullivan cases, because the drug constitutional the heard the evidence at trial, would not have been upon yet contested specific finding.16 failed to make a See, Perez-Ruiz, e.g., Heredia, 1080, (9th United States v. Cir.2003); 353 F.3d 319 F.3d 1085-86 1, (1st Cir.2003); Friedman, 17 Lott, United States v. 1231, (10th United States v. 310 F.3d 1240 111, (2d Cir.2002); 300 F.3d 127-28 United Cir.2002); Suarez, United States v. 313 F.3d 242, (3rd Henry, Cir.2002); States v. 282 F.3d 252 (11th Cir.2002); 1293-94 United States v. Strickland, United States v. 245 F.3d 379-80 Lafayette, (D.C.Cir. 337 F.3d 1049-50 (4th Cir.2001); Matthews, United States v. 2003). (5th Cir.2002); F.3d 661-67 United States v. Stewart, (6th Cir.2002); 306 F.3d 308-26 Perez-Ruiz, 18; Friedman, E.g., 353 F.3d at Trennell, (7th United States v. 290 F.3d 128; Matthews, 300 F.3d at 312 F.3d at 665. Cir.2002); Frazier, United States v. 280 F.3d (8th Cir.2002); United States v. Velasco- just similar error in Sulli- ing phase, as the was uncontested evidence Importantly, the Matthews, phase.18 cases. by guilt defendant in those the infected entire van (“evidence at was exten- at 665 trial 312 F.3d majority’s The reliance on United sive, essentially uneontra- overwhelming, and Cotton, 625, 122 v. S.Ct. States dicted”). cases, group In the second (2002), In misplaced. also 152 L.Ed.2d factor, though not sentence Cotton, decide the Court did not whether implicit jury’s by in the See structural error. Friedman, (jury indictment F.3d verdict. Jordan, one finding a reasonable doubt v. F.3d States United implicit guilty verdict of (9th Cir.2002). crime co-conspirators testi Several crime).17 Thus, Neder, like a retrial other drugs involved. at trial the amount fied focused on contested those cases would have Cotton, The 122 S.Ct. 1781. 535 U.S. at tried, properly and that had been issues was “uncontrovert evidence of amount single on the issue focused would Id. The Court stated “[m]ueh ed.” that was infected error. respondents implicating the evidence Neder, majori upon In62 its reliance in conspiracy conspiracy’s drug revealed mistakenly in this ty that the error assumes than” amount with far more volvement case, Neder, only element as infected one necessary to enhance the sentence. so, many. majority among doing Neder reasoning clearly in line with the guilt sentencing phases of a views the practical approach would because retrial being proceeding. appropri quantity focused on the uncontested not have however, approach, requires that the sen ate by error sentenc that was infected issue tencing phase of the trial be reviewed as ing. being separate guilt See phase. from the (holding only at 2538 support cited for 64 Unlike the eases sentencing proce sentence invalid where majority, present Appellant invalid); Georgia, dure Presnell is- contested error-infected 14, 16-17, again likely upon and is to do so re- sues (1978) (in analyzing proce whether there was Therefore, sentencing. I that this conclude fairness, sentencing phas guilt dural far closer to Sullivan than to Neder. case is separate proceedings); es are treated as Bozza v. United agree As for the I with (1947) (verdict 645, 91 L.Ed. 818 that, alone, majority standing such error only during if error invalid occurred sentenc review. to harmless error would Moreover, ing). phases viewed the two conclusion, however, reaching I do separately purposes of structural error of a denigrate the seriousness Salemo, analysis. See system role in depriving of its (3rd Cir.1995)(deprivation 221-22 F.3d Supreme justice. As the Court stated: of during hearing counsel is struc however, doubt, shred of There is error); Mohammad, tural paradigm criminal the Framers’ about (7th Cir.1995)(court F.3d justice: ideal adminis- not the civil-law judicial during sentencing abdicating role error). perfection, but the common-law ide- trative Here, reason phase is structural the by power accomplished limited error infected the sentenc- al of state able doubt entire (2003), majority unavailingly on dicta 17. The also relies case, Sepahi, present from footnote in State use incorrect trial court’s 324, ¶ n. Like the every finding every proof tainted burden cases, factor federal circuit sentencing proceeding. be- Proof issue in implicit judge found in the verdict doubt, protection yond a a basic nec- reasonable jury beyond a reasonable doubt. reliability essary to of the sentenc- maintain ing process, glaringly entire absent from the Esparza both state that Sulli- 18. While Neder and Sullivan, sentencing proceeding. See only applies all the where the error “vitiates van 281, 113 S.Ct. 2078. Neder, findings,” jury’s U.S. at 1827; Esparza, U.S. see also Mitchell v. authority strict division of between jury. 124 S.Ct. at

¶ Moreover, in the instant

Blakely error has exacerbated Sullivan Sullivan,

error. Court held jury applies

that where a an incorrect rea instruction, verdict

sonable doubt is unre protec it

liable because lacks one of the basic justice system,

tions of our criminal and the

consequences “necessarily of the error are

unquantifiable and indeterminate.” Sulli

van, 2078. The

Blakely error in this case makes sentenc “unquantifiable even more and in than

determinate” the error in Sullivan be court,

cause the trial than the rather

applied proof. the incorrect If burden of court

Sullivan could not determine what the applied would have done had proof, burden can

correct how we deter

mine what the would have done had the the correct burden of

proof?19 addition aggravates

error here the error

Supreme Court found to

Sullivan. reasons, 67 For all these I conclude that and, error in this case is structural there-

fore, resentencing required.

100 P.3d 929

In re S. WILPUTTE

No. 1 CA-MH 04-0007 SP. Arizona, Appeals

Court of 1, Department

Division C.

Nov. court, Allowing judgment by appellate this court to substitute is tantamount to trial that of the the circumstances

Case Details

Case Name: State v. Henderson

Court Name: Court of Appeals of Arizona

Date Published: Nov 19, 2004

Citation: 100 P.3d 911

Docket Number: 1 CA-CR 03-0920

Court Abbreviation: Ariz. Ct. App.