State v. Brown

• Decision Date: 16 March 2006
• Docket Number: No. CV-05-0263-PR.,CV-05-0263-PR.
• Citation: 212 Ariz. 225,129 P.3d 947
• Parties: The STATE of Arizona, Petitioner, v. Honorable Michael J. BROWN, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent Judge, Jonathan McMullen, Real Party in Interest.
• Court: Arizona Supreme Court

129 P.3d 947

212 Ariz. 225

The STATE of Arizona, Petitioner, v. Honorable Michael J. BROWN, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent Judge, Jonathan McMullen, Real Party in Interest.

No. CV-05-0263-PR.

Supreme Court of Arizona, En Banc.

March 16, 2006.

Terry Goddard, Arizona Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section, Nicholas D. Acedo, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Robert J. Hooker, Pima County Public Defender by Frank P. Leto, Michael J. Miller, Tucson, Attorneys for Jonathan Wayne McMullen.

OPINION

HURWITZ, Justice.

¶ 1 The issue in this case is whether a defendant's statements during a plea colloquy relieve the State of its obligation under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny to prove aggravating factors to a jury. We conclude that the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, 120 S.Ct. 2348, unless a defendant has knowingly, voluntarily, and intelligently waived his right to jury trial with respect to aggravating factors.

I.

¶ 2 The State charged Jonathan Wayne McMullen with the first degree murder of his mother and the attempted first degree murder of his father and brother. McMullen was fourteen years old when the events in question occurred. McMullen eventually agreed to plead guilty to one count of reckless manslaughter in violation of Arizona Revised Statutes ("A.R.S.") § 13-1103(A)(1) (2001) in exchange for the dismissal of the murder and attempted murder charges.

¶ 3 Pursuant to Arizona Rules of Criminal Procedure 17.2, 17.3, and 17.4(c), the superior court held a change-of-plea hearing to determine whether McMullen's plea was knowing, voluntary, and intelligent. During that hearing, the court questioned McMullen about the factual basis for his guilty plea. McMullen stated that on the night of the shooting, he and a friend talked about taking his mother's car and driving to Willcox. McMullen said that he was afraid that they might get caught taking the car and that he therefore decided to shoot the people at his house. McMullen then stated that he and the friend threw something at McMullen's mother's bedroom door to waken her and, when she came into his bedroom, he shot her seven times. McMullen also stated that, when his brother and father came into the room, he shot his brother twice and his father once.

¶ 4 The superior court found that the plea was "knowingly, intelligently and voluntarily made," but deferred acceptance of the plea until sentencing. The court also determined that under Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the maximum sentence to which McMullen could be sentenced based solely on his guilty plea was the five-year presumptive term for reckless manslaughter under A.R.S. § 13-701(C)(1) (2001). The court scheduled a jury trial to enable the State to prove any aggravating factors to a jury beyond a reasonable doubt.

¶ 5 The State subsequently filed a notice of aggravating factors.¹ McMullen then filed a motion arguing that A.R.S. §§ 13-702 and 13-702.01 (2001) (the "aggravation statutes") were unconstitutional. In a minute entry, the superior court held these statutes "unconstitutional on their face, and as applied to this case."

¶ 6 The State filed a special action in the court of appeals, which accepted jurisdiction. State v. Brown (McMullen) ("McMullen I"), 205 Ariz. 325, 326 ¶ 2, 70 P.3d 454, 455 (App. 2003). The court of appeals held that the "statutory maximum" for purposes of Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was not the presumptive sentence under A.R.S. § 13-701(C)(1), but rather the maximum sentence authorized by A.R.S. §§ 13-702 and 13-702.01 after aggravating factors had been established. McMullen I, 205 Ariz. at 333 ¶ 26, 70 P.3d at 462. The court held that McMullen was therefore not entitled to a jury trial on the aggravating factors alleged by the State. Id.

¶ 7 McMullen then filed a petition for review in this Court. We granted review and held that the "statutory maximum" for purposes of Apprendi and Blakely is the presumptive sentence established for the defendant's crime. State v. Brown (McMullen) ("McMullen II"), 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15, 18 (2004).² We declined to address the "myriad other questions" potentially raised by Apprendi and Blakely and remanded the case to the superior court. Id. ¶ 14.

¶ 8 On remand, the superior court again held the aggravation statutes unconstitutional. The court also determined that McMullen's statements at his change-of-plea hearing were not "admissions of fact" for purposes of Apprendi and Blakely because McMullen had not "voluntarily relinquished his right to a jury trial on the facts necessary to aggravate his sentence." The superior court further held that the existing aggravation statutes did not authorize the convening of a sentencing jury; instead, the court ordered a sentencing hearing at which it would "be limited to sentencing the defendant to the presumptive five-year term."

¶ 9 The State again filed a special action and the court of appeals again accepted jurisdiction. State v. Brown (McMullen) ("McMullen III"), 210 Ariz. 534, 536 ¶ 1, 115 P.3d 128, 130 (App.2005). The court of appeals held that the aggravation statutes were constitutional and that the superior court should have convened a jury to determine whether aggravating circumstances existed. Id. at 544 ¶¶ 28-30, 115 P.3d at 138. The court of appeals affirmed, however, the superior court's holding that, notwithstanding McMullen's statements at his change-of-plea hearing, he was entitled to a jury trial on the alleged aggravating factors under the Apprendi/Blakely rule. McMullen III, 210 Ariz. at 542 ¶ 22, 115 P.3d at 136. The court held that "like the right to a jury trial generally, waiver of the right to a jury trial on sentencing factors must be knowing and voluntary" and that it would "not infer that a defendant has waived the jury trial right established in Blakely based solely on a general waiver of the right to a jury trial on guilt or innocence." Id. at 539 ¶ 12, 115 P.3d at 133. Accordingly, the court of appeals remanded for a sentencing hearing before a jury. Id. at 544-45 ¶ 31, 115 P.3d at 138-39.

¶ 10 McMullen then filed a petition for review in this Court, arguing that the aggravation statutes were unconstitutional and that the superior court lacked the power to convene a jury trial on the existence of aggravating factors. The State filed a cross-petition for review, arguing (1) that McMullen's plea agreement waived his right to jury trial on the aggravating factors alleged by the State and (2) that McMullen's statements during the plea colloquy were "admissions" not subject to the Sixth Amendment guarantee of jury trial. We denied McMullen's petition for review and granted the State's cross-petition. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

A.

¶ 11 McMullen first argues that the State is judicially estopped from contending that he waived any right to a jury trial on aggravating factors by entering into the plea agreement. During a status conference after McMullen's change-of-plea hearing, McMullen's attorney stated that the defense was not "waiv[ing] a jury" for any aggravation/mitigation hearing. Later in the conference, the prosecutor agreed, stating that, at the change-of-plea hearing, McMullen

gave up his right to a jury trial with the charges pending before him. The plea the Court has taken on [sic] and the Plea Agreement predicates he knows he gave up a jury trial on that. And as far as the jury trial right [with respect to aggravating factors] that I do not believe exists in this matter, he hasn't given that up. I think as a matter of law ... he is not entitled to a jury trial for aggravating/mitigating factors in this case.

The superior court subsequently held that McMullen had not waived any right to jury trial on aggravating factors.

¶ 12 In its first special action to the court of appeals, the State did not challenge the superior court's ruling on waiver. McMullen I, 205 Ariz. at 327 n. 2 ¶ 5, 70 P.3d at 456 n. 2. In McMullen III, the court of appeals therefore concluded that the State was judicially estopped from arguing to the contrary. 210 Ariz. at 538 ¶¶ 9-10, 115 P.3d at 132.

¶ 13 We do not quarrel with the reasoning of the court of appeals as to judicial estoppel. We do not, however, rely upon that doctrine in this case. "Judicial estoppel is not intended to protect individual litigants but is invoked to protect the integrity of the judicial process by preventing a litigant from using the courts to gain an unfair advantage." State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304 (1996). "Judicial estoppel is an equitable concept, and its application is therefore within the court's discretion." 31 C.J.S. Estoppel and Waiver § 139 (1996). We believe the public interest would be served by clarifying whether an agreement to plead guilty to criminal charges also constitutes an implicit waiver of the right to jury trial on aggravating factors. We therefore exercise our discretion not to apply the doctrine of judicial estoppel in this case and move to the merits of the State's waiver argument.

B.

¶ 14 Apprendi and Blakely each involved defendants who entered guilty pleas to the crimes charged against them. See Blakely, 542 U.S. at 298, 124 S.Ct. 2531; Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348. In each case, the defendant clearly waived his right to jury trial on the crimes charged; nonetheless, the Supreme Court held that each retained the right to jury trial on aggravating...