The STATE of Arizona, Appellee,
v.
Gerald Ray TIMMONS, Appellant.
Court of Appeals of Arizona, Division two.
*317 Tеrry Goddard, Arizona Attorney General, By Randall M. Howe and Kathryn A. Damstra, Tucson, for Appellee.
Jacqueline Rohr, Tucson, for Appellant.
OPINION
BRAMMER, J.
¶ 1 After a jury trial, appellant Gerald Ray Timmons was found guilty of armed robbery, aggravated robbery, six counts of kidnapping, and six counts of aggravated assault. The trial court sentenced Timmons to a combination of consecutive and concurrent, presumptive and aggravated prison terms totaling 30.5 years. Timmons appeals.
¶ 2 The court aggravated the sentences for the armed robbery and aggravated robbery conviсtions based on the following aggravating factors: 1) significant emotional harm to multiple victims; 2) the offenses were committed for pecuniary gain; 3) Timmons committed the crimes with accomplices; 4) Timmons was on probation in California at the time of the offenses; and 5) Timmons's criminal history. The court concluded that these aggravating factors outweighed the mitigating factors it had found that Timmons was remorseful and had family and community support.
¶ 3 Timmons argues on appeal that the trial court violated Blakely v. Washington, ___ U.S. ___,
Discussion
Blakely Challenge
¶ 4 Timmons argues that the trial court violated Blakely by aggravating his sentences based on factors not found by the jury. In Blakely, the United States Supreme Court, elaborating on its earlier holding in Apprendi v. New Jersey,
Waiver
¶ 5 The state argues that Timmons has waived the "application of Blakely by failing to raise any right-to-jury-trial issues at sentencing." Blakely, however, was decided four months after Timmons was sentenced. Further, at the time of Timmons's sentencing, "our prior decision in State v. Brown,
Must Jury Find All Aggravating Factors?
¶ 6 The state further argues that, because one Blakely-compliant aggravating factor the presence of accomplices is implicit in the jury verdict, the trial court was permitted to find additional aggravating factors without violating Blakely's mandate. The jury found beyond a reasonable doubt only that Timmons had committed his offense with accomplices,[1] one of the five factors the court used to aggravаte two of Timmons's sentences. And a recent decision by Division One of this court held that one Blakely-compliant factor increases the maximum prison term authorized by a guilty verdict or plea to the aggravated term for the offense. State v. Martinez,
¶ 7 Nevertheless, we decline tо follow Division One's lead because, in State v. Ring,
¶ 8 Both Ring II and Blakely are the legal progeny of Apprendi. Both articulated the constitutional requirement that only a jury may find beyond a reasonable doubt any factor used to aggravate a sentence beyond that permitted solely by a guilty verdict or plea, whether in the capital or noncapital context. We find nothing in Blakely requiring us to depart from our supreme court's analysis of the Ring II standard.
¶ 9 Further, in Ring III, our supreme court noted that the capital sentencing scheme requires balancing of aggravating and mitigating factors, a process that can only be accomplished by сonsidering all of the aggravating factors. Arizona's noncapital sentencing statute, § 13-702, similarly requires that, before a defendant is eligible for an aggravated term, a trial court must conclude, after weighing all factors, that the aggravating factors outweigh the mitigating factors.
¶ 10 Finally, despite the state's insistence that one Blakely-compliant factor satisfies the Sixth Amendment and permits a trial court to then find and weigh additional aggravating factors, our supreme court noted in Ring III that "the procedures urged by the State do not reflect any sentencing procedure ever adopted by our legislature."
¶ 11 When the legislature enacted § 13-702, it required that thе same fact-finder find *319 all aggravating factors using the same standard and then weigh them against any mitigating factors it found under the same standard. The state's proposed analysis implies that, once a jury has found one aggravating factor under the heightened evidentiary rules of a trial proceeding, a trial court may find additional aggravating factors under the relaxed, pre-Blakely rules found in § 13-702. But § 13-702(B) contemplates no discrimination among aggravating factors, either as to who shall find them or by what standard they shall be found. We cannot find embraсed within the legislature's intent the concept the state urges here having both the jury and the court finding aggravating factors under different standards. In sum, we can find no principled distinction between the considerations grounding Ring III, in which our supreme court rejected the same argument the state advanced in the capital context, and the application of those same considerations in the noncapital context.
¶ 12 Furthermore, contrary to the state's argument, the trial court had no occasion to either anаlyze or determine whether the single Blakely-compliant aggravating factor present here, the presence of accomplices, by itself outweighed, without reference to the other aggravating factors it had found, the mitigating factors it had found. Absent such anаlysis and determination, the weighing § 13-702 prescribes cannot occur if a jury has not found beyond a reasonable doubt each aggravating factor the court considers.
Harmless Error
¶ 13 The state further argues that any error was harmless. Blakely error is subject to a harmless error analysis. Resendis-Felix. We will not consider harmless any finding of an aggravating factor if evidence and witness credibility cоuld be weighed differently by a jury than it was by the sentencing judge. See State v. Henderson,
¶ 14 On the record before us, we cannot say beyond a reasonable doubt that a jury would have found the same aggravating factors as the trial сourt. The court's finding of "significant emotional harm to multiple victims" is an inherently subjective determination. Moreover, of the five aggravating factors found, only three are among the aggravators listed in § 13-702(C). The trial court could only have found the other two aggravating fаctors under § 13-702(C)(20), the "catch-all" provision authorizing a court to use "[a]ny other factor that the court deems appropriate to the ends of justice." We cannot conclude that a jury would have necessarily considered these nonenumerated factors, much less have found them established beyond a reasonable doubt.[2] Of the enumerated § 13-702(C) aggravating factors the trial court found that the offense was committed for pecuniary gain, that the offense caused significant emotional harm to multiple victims, and that Timmons had accomplices only one, the presence of accomplices, was found beyond a reasonable doubt by the jury. Further, although Timmons has conceded the error is harmless, the jury did not make a separate finding that he had committеd the offense for pecuniary gain. Cf. State v. Medina,
¶ 15 In addition,
the trial court's aggravating-circumstance findings сould have been based merely on *320 "reasonable evidence in the record," State v. Meador,132 Ariz. 343 , 347,645 P.2d 1257 , 1261 (App.1982); State v. Viramontes,204 Ariz. 360 ,64 P.3d 188 (2003), and not satisfied the higher, beyond-a-reasonable-doubt standard Blakely and Apprendi mandate for jury findings.
Resendis-Felix,
Constitutionality of Arizona's Sentencing Scheme
¶ 16 Timmons argues that, because the basic noncapital sentencing stаtute, § 13-702, provides no basis for a jury to determine aggravating or mitigating sentencing factors, Arizona's entire sentencing scheme is unconstitutional. Further, he insists the subsection requiring a trial court to find sentencing factors, § 13-702(B), is not severable. "We have a duty to construe a statutе to be constitutional if possible." Conn,
¶ 17 Division One of this court recently addressed the sentencing scheme's constitutionality in Conn. There, the trial court had determined that Blakely"essentially invalidated Arizona's statutory scheme for imposing aggravated sentences unless a defendant waives a right to a jury trial on aggravating fаctors." Id. ¶ 5. Division One disagreed, holding instead that "[t]here is nothing in the plain language of A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(B) prevents a jury from finding aggravating factors." Id. ¶ 7. We agree.
¶ 18 We see no inconsistency in applying Blakely within the structure the legislature prescribed in § 13-702. The statutory scheme rеquires one fact-finder to find all aggravating factors. That Blakely requires that those factors be found beyond a reasonable doubt by a jury rather than by a trial court does no violence to the legislature's intent. The court will continue to find, as the statute requires, any mitigating fаctors and then weigh those factors against the aggravating factors to determine whether the sentence it imposes should be different from the presumptive sentence.
¶ 19 Although the current sentencing scheme does not provide specifically for a jury triаl during the sentencing phase of a noncapital case, a "court may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence." Aragon v. Wilkinson,
Aggravating Factors Not Charged in the Indictment
¶ 20 Timmons argues that, on remand for resentencing, any aggrаvating factor that was not charged in the indictment may not be considered by a jury empaneled to find aggravating sentencing factors. Because Timmons has not yet been resentenced, any such issue is not ripe for appeal, nor has it been decided by the trial court.[3]See State v. Cruz,
¶ 21 We affirm Timmons's convictions and his presumptive sentences, but vacate his aggravated sentences and remand the case to the trial court for further proceedings consistent with this decision.
JOSEPH W. HOWARD, P. J., concurring.
*321 ECKERSTROM, J., specially concurring.
¶ 22 Because I disagree that we can conduct а harmless error analysis when a Blakely error has occurred, I specially concur for the reasons set forth in my concurring opinion in Resendis-Felix. As I stated in that case, I believe Blakely error is structural in nature and not subject to such a review. In all other respects, I agree with the majority's decision and concur with the result.
NOTES
Notes
[1] This finding is implicit in the verdict because the jury found Timmons guilty of aggravated robbery. Aggravated robbery is robbery committed with one or more accomplices actually present. A.R.S. § 13-1903(A).
[2] The state concedes that, because Timmons admitted only that he had been on probation when he committed the offenses, not that he had a prior conviction, the trial court could only have considered his probation status an aggravating factor under the nonenumerated, "catch-all" provision in § 13-702(C)(20). Consequently, we cannot сonclude beyond a reasonable doubt that a jury would have found Timmons's probationary status to be an aggravating factor.
[3] We note that the Arizona Supreme Court has held, in a capital context, that aggravating factors need not be charged in the indictment. McKaney v. Foreman,