State v. Henderson

• Decision Date: 08 July 2005
• Docket Number: No. CR-04-0442-PR.,CR-04-0442-PR.
• Citation: 115 P.3d 601,210 Ariz. 561
• Parties: STATE of Arizona, Appellee, v. Robert Allen HENDERSON, Appellant.
• Court: Arizona Supreme Court

115 P.3d 601

210 Ariz. 561

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

No. CR-04-0442-PR.

Supreme Court of Arizona, En Banc.

July 8, 2005.

Appeal from the Superior Court, Maricopa County, No. CR-2003-009923-001 DT, Karen L. O'Connor, J.

COPYRIGHT MATERIAL OMITTED

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

James J. Haas, Maricopa County Public Defender, by Edward F. McGee, Deputy Public Defender, Phoenix, Attorneys for Robert Allen Henderson.

OPINION

McGREGOR, Chief Justice.

¶ 1 We granted review to consider whether a reviewing court should consider a claim based upon Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), under a harmless error or a fundamental error standard when the defendant failed to raise the issue at trial. We hold that such claims should be reviewed for fundamental error.

I.

¶ 2 Robert Allen Henderson lived with his 73-year-old mother, Marian Pyle, at her house. During an argument, Henderson assaulted Pyle. The assault continued until Pyle forced Henderson from her bedroom. The next morning, Pyle's daughter arrived and Pyle left her bedroom. When Pyle's daughter left the house, Henderson attacked Pyle again. The attack continued until sheriff's deputies arrived and arrested Henderson. The deputies observed that Pyle had abrasions on her face and nose, a chipped tooth, and cuts and abrasions on her hands. Pyle also complained of back injuries.

¶ 3 Henderson was indicted on one count of kidnapping, Ariz.Rev.Stat. (A.R.S.) § 13-1304 (2001), one count of assault, A.R.S. § 13-1203 (2001), and one count of threatening or intimidating, A.R.S. § 13-1202 (2001). The jury convicted Henderson of assault and threatening or intimidating. The jury did not convict him of kidnapping, but did find him guilty of the lesser included offense of unlawful imprisonment, A.R.S. § 13-1303 (2001).

¶ 4 Pursuant to A.R.S. § 13-702.01.A (2001), the trial judge imposed a "super-aggravated" sentence for the unlawful imprisonment conviction. Unlawful imprisonment is a class 6 felony that carries a presumptive term of one year. A.R.S. § 13-701.C.5 (2001). Section 13-702.A (2001) permits a sentencing court to increase or reduce the presumptive sentence and mandates that any increase or decrease be based on the "aggravating and mitigating circumstances" contained within that same section. Id. The maximum term that a judge can impose under section 13-702.A for a class 6 felony is 1.5 years. Id. Section 13-702.01.A, however, provides that a judge can increase the sentence for a class 6 felony to two years, providing that the court "finds [] at least two substantial aggravating factors listed in § 13-702, subsection C."

¶ 5 The trial court found three aggravating circumstances that fit within the list of statutory aggravators codified in A.R.S. § 13-702.C: infliction or threatened infliction of serious physical injury, § 13-702.C.1; physical and emotional harm caused to the victim, § 13-702.C.9; and that the victim was over the age of sixty-five, § 13-702.C.13.¹ Henderson did not object either to the fact that the court, not a jury, found the aggravators or to the court's decision to impose a super-aggravated sentence.

¶ 6 On appeal, Henderson alleged that the trial judge erred by not giving him proper credit for his presentence incarceration and also raised claims related to his Fifth Amendment privilege against self-incrimination. He did not raise any Sixth Amendment claims.

¶ 7 After Henderson submitted the case to the court of appeals, the United States Supreme Court issued its opinion in Blakely v. Washington, holding 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." Blakely, 542 U.S. at ___, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Sua sponte, the court of appeals ordered the parties to file supplemental briefs on the issues of whether Blakely applied to Henderson's sentencing and, if so, whether the court should consider any Blakely error under a harmless error analysis.

¶ 8 The court concluded that Blakely did apply to Henderson's direct appeal, which was pending at the time Blakely was decided. State v. Henderson, 209 Ariz. 300, 303 ¶ 9, 100 P.3d 911, 914 (App.2004). The court also concluded that Blakely error constitutes trial error, rather than structural error. Id. at 311 ¶ 34, 100 P.3d at 922. The court correctly noted the distinction between the two types of trial error, stating that "trial error to which an objection is made at trial is subject to a harmless error analysis" while "trial error to which no objection is made at trial is subject to a review for fundamental error." Id. at 304 ¶ 13, 100 P.3d at 915. The court then applied the harmless error standard from State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring III), holding that "judicial fact-finding ... may constitute harmless error if we can conclude beyond a reasonable doubt that no reasonable jury would fail to find the aggravating circumstance." Henderson, 209 Ariz. at 311 ¶ 35, 100 P.3d at 922 (citations omitted).

¶ 9 The State contends that the court erroneously applied the harmless error standard to Henderson's Blakely claim, because Henderson had not preserved his objection at trial. Specifically, the State argues that, under the correct fundamental error standard, Henderson must establish not only that fundamental error occurred but also that the error caused prejudice. See State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

¶ 10 We granted review to determine whether the court of appeals erred in applying a harmless error standard to Henderson's Blakely claim. We exercise jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Rule 31.19 of the Arizona Rules of Criminal Procedure.²

II.

¶ 11 The parties no longer dispute several issues considered at earlier stages of this proceeding. First, neither party disputes that the holding of Blakely applies to this case. In addition, as the State candidly conceded at oral argument, Blakely error clearly occurred. A judge, not a jury, found facts that made Henderson eligible for an aggravated sentence and, in doing so, applied a lesser standard of proof than Blakely requires. Moreover, Henderson acknowledges that he made no trial objection that could be construed as raising any Blakely issue.

¶ 12 Finally, Henderson does not challenge the court of appeals' conclusion that Blakely error constitutes trial, not structural, error, a conclusion with which we agree. As we held in Ring III, there are "relatively few instances in which we should regard error as structural." 204 Ariz. at 552 ¶ 46, 65 P.3d at 933. Structural errors, as opposed to trial errors, are those which "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for guilt or innocence." Id. at ¶ 45 (quoting Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotations omitted)). Additionally, errors are considered structural rather than trial errors when they "affect the `entire conduct of the trial from beginning to end,'" and thus taint "`the framework within which the trial proceeds.'" State v. Anderson, 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378 (2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). We previously have held that we will analyze Apprendi error as trial error, rather than as structural error.³ See State v. Sepahi, 206 Ariz. 321, 324 n. 3, ¶ 19, 78 P.3d 732, 735 n. 3 (2003); see also Ring III, 204 Ariz. at 555 ¶ 53, 65 P.3d at 936. In Ring III, we held that, in the capital context, "Arizona's failure to submit [aggravating factors] to the jury does not constitute structural error." Id. at 552 ¶ 44, 65 P.3d at 933. We have been asked to revisit this question on several occasions and have declined to do so. See, e.g., State v. Murdaugh, 209 Ariz. 19, 30 ¶ 50, 97 P.3d 844, 855 (2004); State v. Montaño, 206 Ariz. 296, 297 ¶ 3, 77 P.3d 1246, 1247 (2003); State v. Sansing, 206 Ariz. 232, 235 ¶ 5, 77 P.3d 30, 33 (2003).

¶ 13 Ring III however, considered only the Sixth Amendment violation caused by submitting factual questions legally essential to expose a defendant to a maximum sentence to the wrong factfinder. The aggravating facts used to enhance Henderson's sentence were found by a judge instead of by a jury. As we held in Ring III, that procedure violated Henderson's Sixth Amendment right to a jury trial. See 204 Ariz. at 545 ¶ 12, 65 P.3d at 926; see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In addition, however, the trial judge here applied a preponderance standard to find the aggravators, rather than the constitutionally required standard of beyond a reasonable doubt. This procedure violated the Fifth Amendment. See, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that Due Process Clause of the Fifth Amendment puts the burden on the prosecution to prove all elements of all charges beyond a reasonable doubt).

¶ 14 Before the court of appeals, Henderson relied primarily upon Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), in arguing that the failure to apply the proper standard of proof to the determination of aggravating factors legally essential to his punishment constitutes structural error requiring automatic reversal. In Sullivan, the United States Supreme Court held that submitting a case to a jury under a constitutionally deficient reasonable doubt instruction "vitiate[d] all the jury's findings" because the jury had returned no verdict of guilty beyond a reasonable doubt. Id...