State v. Brown, 2 CA-SA 2005-0011.

CourtSupreme Court of Arizona
Citation210 Ariz. 534,115 P.3d 128
Docket NumberNo. 2 CA-SA 2005-0011.,2 CA-SA 2005-0011.
PartiesThe STATE of Arizona, Petitioner, v. Hon. Michael J. BROWN, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent, and Jonathan McMullen, Real Party in Interest.
Decision Date22 June 2005
115 P.3d 128
210 Ariz. 534
The STATE of Arizona, Petitioner,
Hon. Michael J. BROWN, Judge of the Superior Court of the State of Arizona, in and for the County of Santa Cruz, Respondent, and
Jonathan McMullen, Real Party in Interest.
No. 2 CA-SA 2005-0011.
Court of Appeals of Arizona, Division Two, Department A.
June 22, 2005.

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George E. Silva, Santa Cruz County Attorney, By Marc Offenhartz, Nogales, for Petitioner.

Robert J. Hooker, Pima County Public Defender, By Robert J. Hooker and Frank P. Leto, Tucson, for Real Party in Interest.

Terry Goddard, Arizona Attorney General, By Nicholas D. Acedo, Phoenix, for Amicus Curiae Arizona Attorney General.


HOWARD, Presiding J.

¶ 1 In this special action, the state contends the respondent judge abused his discretion by finding that statements made by real party in interest Jonathan McMullen in establishing a factual basis for his guilty plea to reckless manslaughter were not admissions of fact for purposes of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In its amicus brief, the Arizona Attorney General agrees with that contention and also argues that, by pleading guilty to reckless manslaughter, McMullen waived his right to a jury trial on sentencing factors.1 The state also contends the respondent judge abused his discretion by finding A.R.S. §§ 13-702 and 13-702.01 unconstitutional and by ruling he lacks authority to empanel a jury and conduct a jury trial on the aggravating circumstances. For the reasons stated below, we accept jurisdiction of this special action and grant partial relief.


¶ 2 McMullen shot and killed his mother and shot his father and brother, seriously injuring them. Pursuant to a plea agreement, McMullen pled guilty to reckless manslaughter in exchange for the state's dismissal without prejudice of the remaining charges. McMullen established the factual basis for the guilty plea at the change-of-plea hearing, describing what had taken place the night of the shootings. The respondent judge found that the guilty plea was knowing, voluntary, and intelligent and that it was supported by an adequate factual basis, but deferred accepting it until sentencing. After the change-of-plea hearing, the state alleged four aggravating circumstances: "[u]se, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime," § 13-702(C)(2); "[p]resence of an accomplice," § 13-702(C)(4); "[t]he physical, emotional and financial harm caused to the victim or, if the victim has died as a result of the conduct of the defendant, the emotional and financial harm caused to the victim's immediate family," § 13-702(C)(9); and "[l]ying in wait for the victim or ambushing the victim during the commission of any felony." § 13-702(C)(17). But the respondent judge subsequently found §§ 13-702 and 13-702.01 unconstitutional insofar as they permit judges to impose a prison term that exceeds the

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presumptive sentence based on facts in aggravation found by the judge rather than a jury.2 The state sought special action relief, which this court granted, State v. Brown, 205 Ariz. 325, 70 P.3d 454 (App.2003), and McMullen sought review by our supreme court.

¶ 3 While McMullen's petition for review was pending, the United States Supreme Court decided Blakely. Thereafter, our supreme court granted review, vacated this court's opinion in Brown, and found Blakely applies to Arizona's noncapital sentencing statutes. State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004). The court also concluded McMullen may be sentenced to no greater than the presumptive, five-year prison term unless there is a jury finding, or its equivalent, beyond a reasonable doubt "of one or more of the aggravating circumstances in § 13-702(C)." Id. The court remanded the case to the trial court for further proceedings consistent with its decision and Blakely.

¶ 4 On remand, after further briefing and a hearing, the respondent judge rejected the state's argument that, by entering the guilty plea and waiving generally his right to a jury trial, McMullen had waived his right to a jury trial on any sentencing factors. The respondent judge found there was not "a scintilla of evidence" that McMullen had knowingly, voluntarily, and intelligently relinquished a known right. The judge also rejected the state's claim that McMullen was not entitled to a jury trial on the facts in aggravation because, at the change-of-plea hearing, he had admitted the facts establishing the circumstances the state had alleged. Furthermore, the judge found portions of §§ 13-702 and 13-702.01 facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely. The judge concluded that the constitutionally infirm provisions cannot be severed from the rest of the statutes, and in the absence of a legislative or supreme court directive in either statutes or rules on how to conduct such a trial, he lacked the authority to convene a jury and hold the trial. The judge set the case for sentencing, making it clear that the maximum prison term he will impose is the presumptive term of five years. The judge granted the state's subsequent request to vacate the sentencing hearing and stay the underlying action so it could seek special action relief.3 This is that special action.


¶ 5 We accept jurisdiction of this special action for a variety of reasons. First, the state has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. Spec. Actions 1(a), 17B A.R.S. The order challenged here is interlocutory in nature. Second, "[s]pecial action review is an appropriate means to determine whether there is a right to a jury trial." Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.1996); see also John C. v. Sargeant, 208 Ariz. 44, ¶ 8, 90 P.3d 781, 783 (App.2004) ("A petition for special action is the appropriate method to challenge the denial of a jury trial.").

¶ 6 Moreover, special action review is proper when the issues raised are purely legal questions, questions of first impression, and issues of statewide importance. ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶¶ 8-9, 83 P.3d 1103, 1106-07 (App.2004). Here, just as Division One of this court noted in State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 3, 98 P.3d 881, 882 (App.2004), "[t]he issue[s] presented. . . arise[] out of a change in the law effected in Blakely and [are] of first impression and statewide importance. Because the issue[s are] likely to recur, and the outcome

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will have a widespread effect on many cases," it is particularly appropriate that we accept special action jurisdiction. See Aragon v. Wilkinson, 209 Ariz. 61, ¶ 5, 97 P.3d 886, 889 (App.2004) (accepting special action jurisdiction based on conclusion that constitutional issues relating to Blakely are of first impression and statewide importance).

¶ 7 We thus accept special action jurisdiction and address the state's contention that the respondent judge abused his discretion. See Ariz. R.P. Spec. Actions 3(c) (among questions that may be raised in special action is whether respondent judge abused his or her discretion). In reviewing the respondent judge's rulings, we are mindful that, "when a judge commits an `error of law . . . in the process of reaching [a] discretionary conclusion,' he may be regarded as having abused his discretion." Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003), quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). Our review of the legal issues raised in this special action is de novo. See State v. Burdick, 209 Ariz. 452, ¶ 12, 104 P.3d 183, 187 (App.2005).


¶ 8 Based on principles it had articulated in Apprendi, the Supreme Court held in Blakely that a judge may not sentence a defendant to a term beyond the "statutory maximum," or the term authorized solely by the jury's verdict or the defendant's guilty plea, unless the sentence is based on "facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at ___, 124 S.Ct. at 2537 (emphasis deleted). Our supreme court concluded in Brown that Blakely applies to Arizona's noncapital sentencing statute. 209 Ariz. 200, n. 5, 99 P.3d at 19 n. 5. The state contended below, after the supreme court had remanded the case, that McMullen had waived his right to a jury trial on the aggravating circumstances when he entered his guilty plea and waived generally his right to a jury trial. The respondent judge disagreed, and the attorney general challenges that ruling in its amicus brief. At oral argument in this special action, the state adopted the attorney general's position on this issue.

¶ 9 As the respondent judge correctly noted, the state conceded McMullen was not waiving any right he may have to a jury trial on sentencing factors when he entered the guilty plea to reckless manslaughter. During the change-of-plea hearing and a subsequent status hearing, the respondent judge and counsel extensively discussed whether a right to a jury trial on sentencing factors existed. Defense counsel made it clear that McMullen was not waiving that right. The prosecutor conceded at the status hearing that, although McMullen had given "up his right to a jury trial with [respect to] the charges pending before him," he had not "given . . . up" his right to a jury trial on sentencing facts. Furthermore, the respondent judge noted in his order that McMullen had only waived the right to a jury trial on the "substantive offense . . . and not to the facts [in aggravation] set forth in [§ 13-702(C)]."

¶ 10 The state did not challenge the latter finding in the first special action in this court or on...

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