State v. Fell

97 P.3d 902

209 Ariz. 77

The STATE of Arizona, Petitioner, v. Hon. Howard FELL, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Edward John SANDERS, Real Party in Interest.

No. -0057.

Court of Appeals of Arizona, Division 2, Department B.

September 23, 2004.

Barbara LaWall, Pima County Attorney, By Amy Pignatella Cain and Elizabeth Hurley, Tucson, for Petitioner.

Higgins & Higgins, P.C., By Harold L. Higgins, Jr., Tucson, for Real Party in Interest.

OPINION

ESPINOSA, J.

¶ 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 Because petitioner State of Arizona had withdrawn its previously filed notice of intent to seek the death penalty, the remaining sentencing options were a natural life prison term or a life term with the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. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applied to Sanders's sentencing and concluded that, before he could impose a natural life prison term on the first-degree murder charge, the state would be required to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged. The judge apparently believed the sentencing factors he could consider in deciding between the two options were those set forth in § 13-703 rather than the factors listed in A.R.S. § 13-702.

¶ 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, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The respondent judge asked the parties to submit memoranda addressing whether Blakely and § 13-703.01(Q), enacted well after Sanders had committed the offenses, applied to Sanders's sentencing process. That statute requires a sentencing judge in a non-capital, first-degree murder case to consider the aggravating and mitigating factors in § 13-702 rather than those in § 13-703.

¶ 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.

SPECIAL ACTION JURISDICTION

¶ 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 §§ 13-703 and 13-703.01(Q), questions of law that are particularly appropriate for review by special action. See State ex rel. Romley v. Fields, 201 Ariz. 321, 35 P.3d 82 (App.2001); see also ChartOne, Inc. v. Bernini, 207 Ariz. 162, 83 P.3d 1103 (App.2004) (interpretation of state constitution and civil rule are questions of law appropriate to special action review); Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.1996) ("Special action review is an appropriate means to determine whether there is a right to a jury trial.").

¶ 8 In addition, the questions raised are of first impression and statewide importance. See Inzunza-Ortega v. Superior Court, 192 Ariz. 558, 968 P.2d 631 (App.1998). In the wake of Blakely, trial and appellate courts are wrestling with its applicability to a variety of statutes and circumstances. Clearly, the ramifications of Blakely on Arizona's sentencing statutes are potentially far-reaching. The state urges us to accept jurisdiction to give guidance to trial courts faced with the decision whether to sentence murder defendants to a natural life prison term or life with the possibility of parole. Similarly, the question whether § 13-703.01(Q) may be retroactively applied to defendants who committed crimes before the statute's effective date has yet to be determined. Both issues are particularly suited for special action review.

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, 204 Ariz. 360, 64 P.3d 188 (2003). We disagree.

¶ 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, 204 Ariz. 459, 65 P.3d 107 (App.2003).¹ To do otherwise would implicate the state and federal prohibitions against enacting ex post facto laws. See U.S. Const. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25. When Sanders committed the murder in July 2000, A.R.S. § 13-1105(C) stated 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. At that time, § 13-703(A) provided that a person convicted of first-degree murder could be sentenced to death or natural life, or life with the possibility of parole. 1999 Ariz. Sess. Laws, ch. 104, § 1. In Viramontes, decided in January 2003, our supreme court held...