State v. Henderson

100 P.3d 911

209 Ariz. 300

STATE of Arizona, Appellee, v. Robert Allen HENDERSON, Appellant.

No. -0920.

Court of Appeals of Arizona, Division 1, Department D.

November 18, 2004.

As Corrected November 19, 2004.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Nicholas D. Acedo, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Edward F. McGee, Deputy

Public Defender, Phoenix, Attorneys for Appellant.

OPINION

BARKER, Judge and Thompson, Presiding Judge.

¶ 1 We address in this opinion one of the issues presented by the United States Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Specifically, we hold that the failure to submit aggravating factors to a jury pursuant to Blakely is not structural error requiring automatic reversal. Rather, we determine that Blakely error is subject to a harmless error or fundamental error analysis and may or may not require reversal based on the facts of the particular case. In this case we find the error is not harmless. Accordingly, we remand for resentencing.

I.

¶ 2 Robert Allen Henderson ("appellant") appeals his sentences following conviction in the trial court. Appellant was indicted on three counts: kidnaping, a class 2 felony; assault, a class 1 misdemeanor; and threatening or intimidating, a class 1 misdemeanor. After a jury trial, he was convicted of the two misdemeanor charges. The jury did not find him guilty of kidnaping, but instead found him guilty of the lesser-included offense of unlawful imprisonment, a class 6 felony.

¶ 3 At sentencing, the trial court sentenced appellant to six months' incarceration for each of the misdemeanor counts. For the unlawful imprisonment count, the court imposed an exceptionally aggravated prison term of two years. All three sentences were ordered to run concurrently.

¶ 4 Appellant timely appealed. His initial brief raised two issues and requested that the sentence be vacated.¹ Since that time, Blakely was announced. Appellant now asserts Blakely error and requests that the sentence for unlawful imprisonment be vacated.² This court has received supplemental briefing from each of the parties on the Blakely issue. Because we remand on Blakely we need not reach the initial sentencing issues presented by appellant. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(3) (2001).

II.

¶ 5 In Blakely, the Court held that "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment' and the judge exceeds his proper authority." ___ U.S. at ___, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). The Court stated that "the `statutory maximum' 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." Id. The Court further explained that "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum [the judge] may impose without any additional findings." Id.

¶ 6 In Arizona, A.R.S. § 13-701(A) (2001) provides that "imprisonment for a felony shall be a definite term of years" and then sets forth the term of years applicable for first-time felony offenses. For appellant's class 6 felony conviction, the term is one year. A.R.S. § 13-701(C)(5). This term is typically referenced as the presumptive term. State v. Brown, 205 Ariz. 325, 332, ¶ 24, 70 P.3d 454, 461 (App.2003). In the language of Blakely, this is the "statutory maximum." Blakely, ___ U.S. at ___, 124 S.Ct. at 2537. Section 13-702(A) (2001) provides that the presumptive sentence may be "increased or reduced by the court." That section also provides that "[a]ny reduction or increase shall be based on the aggravating and mitigating circumstances" set forth therein and be limited to the range specified. Id. As to the offense for which appellant was convicted, the upward limit is 1.5 years. Id. Section 13-702.01(A) further provides that "if the court finds that at least two substantial aggravating factors listed in § 13-702" are present, then the sentence may be further increased to two years.

¶ 7 Applying Blakely's definition of "statutory maximum" to the Arizona scheme renders the following result: Unless admitted by defendant or waived by the parties, any sentence beyond a presumptive term must be based on at least one aggravating factor found by a jury for purposes of A.R.S. § 13-702(A) and at least two "substantial" aggravating factors for purposes of A.R.S. § 13-702.01(A). As stated in Blakely,

Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

___ U.S. at ___, 124 S.Ct. at 2538 (emphasis added). Thus, Blakely now holds that "by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury," unless admitted by the defendant or waived by the parties. Id. at 2540 (emphasis added). Because of our disposition on the various sentencing factors here, we do not address whether all aggravating factors upon which a judge relies in imposing an aggravated sentence must be submitted to a jury or whether only the minimum number that provide "entitlement" to the trial judge to sentence above the statutory maximum must be so submitted.³

¶ 8 In this case, appellant received a super-aggravated sentence under A.R.S. § 13-702.01(A) based on "the violent nature of the facts," the trauma and injuries caused to the victim, the victim's age, and appellant's lack of remorse. All of these facts were found by the court (applying a preponderance standard), not by a jury (applying a beyond a reasonable doubt standard). Thus, there was Blakely error in this case.

¶ 9 Neither party requested that a jury determine the aggravators beyond a reasonable doubt. Nonetheless, Blakely applies here because this case was still pending when Blakely was decided. See Griffith v. Kentucky, 479 U.S. 314, 322-24, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that newly announced constitutional rules must be applied to cases that are not yet final); State v. Wilson, 207 Ariz. 12, 17, ¶ 18, 82 P.3d 797, 802 (App.2004) ("[A] supreme court opinion generally applies to any cases that are pending at the time the opinion is filed."). As we discuss below, the issue Blakely presents may constitute fundamental error depending on the circumstances of the case. Infra ¶ 15 (citing cases holding that we review for fundamental error regardless of an objection in the trial court). We now turn to Blakely error in general and in this case in particular.

III.

¶ 10 We must first consider whether Blakely error is (1) structural error that requires mandatory reversal regardless of the impact of the error on the particular proceedings at issue or (2) trial error that is subject to a harmless error or fundamental error analysis before determining whether or not reversal is required. As the concepts of structural error, trial error, fundamental error, and harmless error are critical to our analysis, we first set forth the definitions we employ.

A.

¶ 11 As our supreme court explained in State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) ("Ring III"), "structural errors `deprive defendants of "basic protections" without which a "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment may be regarded as fundamentally fair."'" Id. at 552, ¶ 45, 65 P.3d at 933 (quoting Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986))). When structural error occurs, we automatically reverse the judgment. Id. at 552, ¶ 45, 65 P.3d at 933. No consideration is given to the factual setting and whether the error may or may not be harmless. Structural error requires reversal.

¶ 12 There are "relatively few instances in which we should regard error as structural." Id. at 552, ¶ 46, 65 P.3d at 933. (providing a listing of errors that constitute structural error). Our supreme court, in identifying the particular circumstances that constitute structural error, has held that "[i]n all those instances, the error infected `the entire trial process' from beginning to end." Id. at 553, ¶ 46, 65 P.3d at 934. (quoting Neder, 527 U.S. at 8, 119 S.Ct. 1827). Thus, the critical inquiry for structural error is whether "`the entire trial process' from beginning to end" has been affected. Id.

¶ 13 The direct contrast to structural error is trial error. This is error that is subject to either a harmless error analysis, if an objection was made at trial, or to a fundamental error analysis, if no objection was made at trial. "Most errors that we consider on appeal, even those involving constitutional error, constitute trial errors, `which occur [ ] during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented.'" Id. at 552, ¶ 45, 65 P.3d at 933 (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). When the only errors present are trial error, we do not automatically reverse the judgment as we do with structural error. We consider whether the error affected the judgment and we affirm the judgment of the trial court if the error was harmless...