State v. Cleere

Citation109 P.3d 107,210 Ariz. 212
Decision Date01 April 2005
Docket NumberNo. 2 CA-CR 2003-0165-PR.,2 CA-CR 2003-0165-PR.
PartiesThe STATE of Arizona, Respondent, v. Fredric B. CLEERE, Petitioner.
CourtCourt of Appeals of Arizona

Malanga Law Office, By Ralph Malanga and Joel A. Larson, Bisbee, for Petitioner.

OPINION

PELANDER, Chief Judge.

¶ 1 Indicted for armed robbery and attempted murder, petitioner Frederic Cleere pled guilty in March 2001 to attempted murder, a class two felony and dangerous-nature offense. Following a mitigation hearing, the trial court sentenced him to a partially aggravated, fifteen-year prison term.1 He successfully sought post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., on the ground that the trial court erroneously had relied on his use of a dangerous instrument, a box cutter, both to establish the dangerous nature of the offense in order to enhance the range of sentence and then to aggravate his sentence.

¶ 2 At Cleere's resentencing in September 2002, the trial court again imposed a partially aggravated, fifteen-year sentence. Identifying Cleere's use of a dangerous instrument as the basis for enhancing his sentence, the court found as aggravating factors the infliction of very serious physical injury to the victim, whose throat Cleere had slit with the box cutter; the especially cruel manner in which Cleere had committed the offense; his having committed it for pecuniary gain; and the serious emotional and mental harm suffered by the victim. The trial court also found as mitigating factors Cleere's "clean record," "peaceable behavior over 36 years before this happened," and "expressed remorse."

¶ 3 Cleere then filed a second Rule 32 petition, again challenging his sentence. Claiming the trial court had relied on improper aggravating factors and had abused its discretion by imposing a $19,250 surcharge in addition to a $25,000 fine, Cleere again sought to be resentenced. The trial court granted partial relief by vacating the surcharge but otherwise denied the second petition. This petition for review followed. While the petition for review was pending, we granted Cleere's request for leave to file a supplemental memorandum based on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).2

¶ 4 Of the four aggravating factors found by the trial court, Cleere argues in the petition for review that one, serious physical injury, was an improper aggravating factor as a matter of law because, he claims, it is an element of the offense of attempted murder and thus expressly excluded from consideration by A.R.S. § 13-702(C)(1).3 But Cleere is mistaken. Nowhere in the statutes that collectively define attempted murder is either infliction or threatened infliction of serious physical injury to the victim made an element of the offense. See A.R.S. §§ 13-1105, 13-1101, 13-1001. In fact, all that is required to sustain an attempted murder conviction is evidence of "some overt act or steps taken toward the commission of ... [murder] and an intent to commit the crime." State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983).

¶ 5 Thus, because the criminal attempt statute requires only intent and "any step in a course of conduct planned to culminate in commission of an offense," one could commit attempted murder by taking a step far short of inflicting or even threatening serious physical injury. See § 13-1001(A)(2); see also State v. Williams, 183 Ariz. 368, 382, 904 P.2d 437, 451 (1995)

("A person can, with a culpable state of mind, take an intentional step toward committing first degree murder without exerting or threatening to exert physical force on another person."); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954) (wife convicted of attempted murder in murder for hire plot when no physical harm came to husband because hit man contacted police). Consequently, because neither infliction nor threatened infliction of serious physical injury is an essential element of attempted murder, the severity of the victim's injuries was a permissible aggravating factor under § 13-702(C)(1) in this case.

¶ 6 Cleere further contends there was insufficient evidence to support the other three aggravating factors. And, in his supplemental memorandum, Cleere argues that the other three aggravating factors found by the court, which he did not admit and a jury did not find, were improperly used to aggravate his sentence in violation of Blakely. The state has not filed a response to either Cleere's petition for review or his supplemental memorandum.

¶ 7 In Blakely, the Supreme Court applied the principles it had announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to Washington's noncapital sentencing statute and concluded that the Sixth Amendment entitles a defendant to a jury's determining beyond a reasonable doubt the existence of any fact that increases a sentencing range beyond the statutory maximum. 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." ___ U.S. at ___, 124 S.Ct. at 2537. In Arizona, the "statutory maximum" sentence for Blakely purposes is the presumptive term, here 10.5 years under § 13-604(I). See State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004); see also State v. Henderson, 209 Ariz. 300, ¶ 6, 100 P.3d 911, 913-14 (App.2004); State v. Resendis-Felix, 209 Ariz. 292, n. 1, 100 P.3d 457, 459 n. 1 (App.2004).

¶ 8 As noted above, the trial court found as aggravating factors the infliction of serious physical injury to the victim, cruelty, commission of the offense for pecuniary gain, and serious emotional and mental harm to the victim. For the reasons already stated, we have rejected Cleere's contention that the trial court erred as a matter of Arizona statutory law in considering the first factor, and he does not otherwise challenge on Blakely grounds the court's consideration of that factor. Therefore, absent any argument by Cleere to the contrary, we assume without deciding that the trial court's finding of serious physical harm to the victim as an aggravating factor did not violate Blakely.4 ¶ 9 Cleere does argue, however, that the trial court's consideration of the other three aggravating factors violated Blakely because those factors were neither found by a jury beyond a reasonable doubt nor admitted by him.5 We agree. None of those other aggravating factors the trial court relied on is Blakely-exempt, that is, a prior conviction, or Blakely-compliant, that is, a fact found by a jury beyond a reasonable doubt, admitted by Cleere, or inherent in his plea or conviction.6See State v. Oaks, 209 Ariz. 432,

¶ 23, 104 P.3d 163, 168 (App.2004); Resendis-Felix, 209 Ariz. 292, ¶ 9, 100 P.3d at 460; cf. State v. Timmons, 209 Ariz. 403, n. 1, 103 P.3d 315, 318 n. 1 (App.2005) (finding presence of accomplice a Blakely-compliant factor because implicit in jury's verdict; defendant was found guilty of aggravated robbery based on presence of one or more accomplices). Therefore, the trial court's imposition of an aggravated sentence violated Blakely. That does not end the inquiry, however, because Blakely error can be harmless. Accordingly, we turn to that issue.

¶ 10 Arizona courts and all federal circuit courts have concluded that Apprendi or Blakely error is subject to harmless error analysis. See State v. Sepahi, 206 Ariz. 321, n. 3, 78 P.3d 732, 735 n. 3 (2003)

("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33, 100 P.3d at 917, 921, 922 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely, have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10, 100 P.3d at 460; State v. Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d 30, 31-32 (App.2004) (holding that "Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case"); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App.2004) (even assuming defendant's trial testimony did not qualify as admissions for sentencing purposes, trial court's enhancement of sentencing range without "separate and specific [jury] finding" that defendant had directed his conduct at a child was harmless error).

¶ 11 Error may be harmless if we can conclude beyond a reasonable doubt that any reasonable jury "would have found the facts which the court used to aggravate the sentences." Oaks, 209 Ariz. 432, ¶ 23, 104 P.3d at 168; see also Henderson, 209 Ariz. 300, ¶ 41, 100 P.3d at 923. In addition, "[w]e will find the error harmless only if we conclude, beyond a reasonable doubt, that the error did not contribute to or affect the sentence imposed." Timmons, 209 Ariz. 403, ¶ 13, 103 P.3d at 319. "We will not consider harmless any finding of an aggravating factor if evidence and witness credibility could be weighed differently by a jury than it was by the sentencing judge." Id.

¶ 12 We can say beyond a reasonable doubt that any reasonable jury would have found, as the trial court did, that Cleere inflicted very serious physical injury to the victim by slashing her throat with a box cutter. Indeed, Cleere does not argue otherwise and never has challenged the fact that the victim sustained serious physical injury. As defense counsel acknowledged at the resentencing, Cleere "took a box cutter and he cut [the victim's] throat, and that's a horrible ... thing to think about." The presentence report, to which defense counsel referred, reportedly stated that the victim's "cut went from ear to ear and the trachea was exposed." Moreover, counsel acknowledged that Cleere's act "was intended to kill," in that Cleere had "expos[ed] the [victim's] neck, [and went] for the proverbial jugular." In...

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2 cases
  • State v. Ruggiero
    • United States
    • Arizona Supreme Court
    • 10 Agosto 2005
    ...merit. 3. Blakely applies to cases such as this that are pending on direct review when Blakely was decided. State v. Cleere, 210 Ariz. 212, n. 2, 109 P.3d 107, 108 n. 2 (App.2005). In addition, "it is now clear that Blakely's analysis and conclusion apply with equal force to Arizona's sente......
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    • 28 Febrero 2006
    ...court for resentencing pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Cleere, 210 Ariz. 212, 109 P.3d 107 (App.2005). Having previously vacated our prior opinion, based on our reconsideration, we now replace it with this opinion, granting r......

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