State v. Fell

• Decision Date: 08 July 2005
• Docket Number: No. CV-04-0344-PR.,CV-04-0344-PR.
• Citation: 115 P.3d 594,210 Ariz. 554
• Parties: 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 Judge, Edward John Sanders, Real Party in Interest.
• Court: Arizona Supreme Court

Page 594

115 P.3d 594

210 Ariz. 554

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 Judge Edward John Sanders, Real Party in Interest.

No. CV-04-0344-PR.

Supreme Court of Arizona, En Banc.

July 8, 2005.

Appeal from the Superior Court, Pima County, No. CR20002900, Howard Fell, Judge.

Barbara Lawall, Pima County Attorney, by Amy Pignatella Cain, Deputy County Attorney, Kathleen A. Mayer, Deputy County Attorney, Tucson, Attorneys for State of Arizona.

Higgins & Higgins, P.C., by Harold Higgins, Jr., Tucson, Attorneys for Edward John Sanders.

OPINION

HURWITZ, Justice.

¶ 1 Under Arizona law, if the death penalty is not imposed for first degree murder, the only other possible sentences are life with the possibility of release after a specified period ("life")¹ or life with no possibility of eventual release ("natural life"). Ariz.Rev.Stat. ("A.R.S.") § 13-703(A) (Supp.2004). We are called on in this case to decide (1) whether the Sixth Amendment requires that a jury find specific aggravating circumstances before the superior court may impose a natural life sentence and (2) whether the superior court can apply a law adopted in 2003 in deciding between a life and a natural life sentence for a first degree murder committed in 2000.

I.

¶ 2 Edward John Sanders was indicted in 2000 for sexual assault and murder. The State filed a notice of intent to seek the death penalty and alleged two aggravating circumstances: that Sanders had committed the offense in an especially heinous, cruel, or depraved manner, see A.R.S. § 13-703(F)(6) (Supp.2000),² and that at the time of the offense Sanders was an adult and the victim was seventy years of age or older, see A.R.S. § 13-703(F)(9). The State later withdrew the notice seeking the death penalty.

¶ 3 Before the case proceeded to trial, two different cases and two different legislative enactments radically affected Arizona's first degree murder sentencing scheme. In 2002, the Supreme Court of the United States held Arizona's capital sentencing scheme unconstitutional because judges, not juries, determined the existence of the aggravating circumstances necessary to impose a death sentence. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ("Ring II"). The legislature reacted to Ring II by amending Arizona's sentencing scheme to provide for jury trials on the existence of aggravating circumstances in capital cases. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1.

¶ 4 In 2003, this Court held that under the pre-Ring statutory scheme, a judge imposing a non-capital sentence for first degree murder could consider only the aggravators set forth in A.R.S. § 13-703(F) when deciding the appropriate punishment. State v. Viramontes, 204 Ariz. 360, 64 P.3d 188 (2003). The legislature then amended the sentencing scheme to provide that a trial judge "[s]hall consider the aggravating and mitigating circumstances listed in section 13-702" when choosing between a life or natural life sentence for first degree murder. 2003 Ariz. Sess. Laws, ch. 255, § 2 (codified as A.R.S. § 13-703.01(Q) (Supp.2003)).

¶ 5 On June 11, 2004, a jury found Sanders guilty of first degree murder and other offenses. On June 24, 2004, the United States Supreme Court held Washingtons non-capital sentencing scheme unconstitutional under the Sixth Amendment. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The trial judge subsequently determined that Blakely required a jury to find the existence of aggravating circumstances before Sanders could be sentenced to natural life. The trial judge also concluded that, notwithstanding the adoption of § 13-703.01(Q), only the aggravating circumstances listed in A.R.S. § 13-703(F) were relevant to the sentencing decision.³

¶ 6 The State petitioned for special action review in the court of appeals. That court accepted jurisdiction and held that Blakely does not apply to Arizona's non-capital, first degree murder sentencing scheme because a trial judge is not required to make findings in addition to those made by the jury in its guilty verdict in deciding between a life and a natural life sentence. State v. Fell (Sanders), 209 Ariz. 77, 89 ¶ 42, 97 P.3d 902, 914 (App.2004). It also held that A.R.S. § 13-703.01(Q) did not apply retroactively and that the trial court therefore could consider only the factors in § 13-703(F) when determining the sentence. Id. at 85 ¶ 27, 97 P.3d at 910.

¶ 7 Sanders petitioned for review of the Blakely holding and the State cross-petitioned for review of the retroactivity holding. We granted both petitions because the issues are of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

A.

¶ 8 As we noted last year, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny make plain "that the Sixth and Fourteenth Amendments of the United States Constitution require a jury to find, beyond a reasonable doubt, any fact that would `expose the defendant to a greater punishment than that authorized by the jury's guilty verdict' alone." State v. Brown (McMullen), 209 Ariz. 200, 202 ¶ 7, 99 P.3d 15, 17 (2004) (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Any fact other than the existence of a prior conviction that increases a defendant's punishment beyond the "statutory maximum" must be found by a jury beyond a reasonable doubt. Id. (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348).

¶ 9 In Blakely, the Supreme Court held 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 .... In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When 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.

542 U.S. at ___, 124 S.Ct. at 2537. Our initial task therefore is to determine the "statutory maximum" for first degree murder in Arizona: the maximum sentence that can be imposed without the superior court making any factual findings beyond those reflected in the jury verdict of guilt.

B.

¶ 10 Determining the "statutory maximum" for Apprendi/Blakely purposes is of necessity a matter of statutory construction. See Brown (McMullen), 209 Ariz. at 202-03 ¶¶ 11-12, 99 P.3d at 17-18. When the crime in this case was committed, A.R.S. § 13-1105(C) (Supp.2000) provided that "[f]irst degree murder ... is punishable by death or life imprisonment as provided by section 13-703." At that time, A.R.S. § 13-703(A) in turn provided as follows:

A person guilty of first degree murder as defined in § 13-1105 shall suffer death or imprisonment in the custody of the state department of corrections for life as determined and in accordance with the procedures provided in subsections B through G of this section. If the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant's natural life. An order sentencing the defendant to natural life is not subject to commutation or parole, work furlough or work release. If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years if the victim was fifteen or more years of age and thirty-five years if the victim was under fifteen years of age.

¶ 11 We interpreted this statutory scheme in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) ("Ring I"), rev'd on other grounds by Ring II, 536 U.S. 584, 122 S.Ct. 2428. We stated that in first degree murder cases, "[t]he range of punishment allowed by law on the basis of the [guilty] verdict alone is life imprisonment with the possibility of parole or imprisonment for `natural life' without the possibility of release." Id. at 279 ¶ 42, 25 P.3d at 1151. Although Ring I did not address the precise issue now before us, we today confirm that our statement in that case accurately explained the law: nothing in § 13-703 required the finding of any fact beyond those reflected in the jury's verdict of guilt as a prerequisite to the imposition of a natural life sentence.

¶ 12 The first degree murder sentencing statute in effect in 2000 expressly required the finding of at least one aggravating circumstance before a death sentence could be imposed. See A.R.S. § 13-703(E) (allowing sentence of death only if the "court finds one or more aggravating circumstances ... and that there are no mitigating circumstances sufficiently substantial to call for leniency"); State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983) ("Where none of the statutory aggravating circumstances are found to be present, our statute prohibits the death penalty.").⁴ In contrast, nothing in § 13-703 required that any specific fact be found before a natural life sentence could be imposed.

¶ 13 Sanders nonetheless argues that life is the "presumptive" sentence for first degree murder and that natural life is an "aggravated" sentence. The notion of a presumptive sentence arises from the statutes governing punishment for felonies other than first degree murder, which generally provide that a defendant "shall" receive a specific term of imprisonment. See A.R.S. §§ 13-701 (2001) (governing sentences for class 2, 3, 4, 5 and 6 felonies) and 13-710 (2001) (governing sentences for second degree murder). The presumptive sentence may be either increased or reduced based upon findings of specific aggravating or mitigating circumstances. A.R.S. § 13-702(A) (Supp.2004). Thus, we held in Br...