State v. Munninger

• Decision Date: 08 August 2006
• Docket Number: No. 1 CA-CR 03-0328.,1 CA-CR 03-0328.
• Citation: 213 Ariz. 393,142 P.3d 701
• Parties: STATE of Arizona, Appellee, v. John Karl MUNNINGER, Appellant.
• Court: Arizona Court of Appeals

142 P.3d 701

213 Ariz. 393

STATE of Arizona, Appellee, v. John Karl MUNNINGER, Appellant.

No. 1 CA-CR 03-0328.

Court of Appeals of Arizona, Division 1, Department D.

August 8, 2006.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Joseph T. Maziarz, David Wood, Assistant Attorney Generals, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Maricopa County Public Defender By James L. Edgar, Deputy Public Defender, Phoenix, Attorney for Appellant.

SUPPLEMENTAL OPINION

IRVINE, Judge.

¶ 1 Munninger was charged with aggravated assault, a class three dangerous felony. A jury convicted him, finding that the offense was dangerous. The trial court imposed an aggravated and enhanced sentence of 12.5 years in prison. The presumptive sentence was 7.5 years and the maximum was 15 years. On appeal we held that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), decided while Munninger's appeal was pending, required resentencing. State v. Munninger, 209 Ariz. 473, 104 P.3d 204 (App.2005). The Supreme Court of Arizona remanded this matter for reconsideration in light of State v. Martinez, 210 Ariz. 578, 115 P.3d 618 (2005) and State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005). After reconsideration, we affirm the sentence imposed by the trial court.

¶ 2 Martinez held that a single Blakely-exempt or Blakely-compliant factor¹ permits the imposition of an aggravated sentence. 210 Ariz. at 585, ¶ 26, 115 P.3d at 625. The supreme court found that the jury's verdict implicitly found an aggravator. Id. at 585-86, ¶ 27, 115 P.3d at 625-26. Accordingly, the sentencing judge in Martinez did not violate Blakely by relying on other factors to determine the length of Martinez's aggravated sentence. Id.

¶ 3 In our previous opinion, we found that the superior court used three factors to justify an aggravated sentence for Munninger: extraordinary harm to the victim, viciousness of the crime and use of a weapon.² None of these facts were either Blakely-compliant or Blakely-exempt.³ Accordingly, the holding of Martinez does not directly apply. Consequently, because no aggravating factor found by the jury and no aggravating factor not subject to the requirement of a jury finding is present in this case, the superior court erred in imposing an aggravated sentence.

¶ 4 Nevertheless, we must consider whether the Blakely error at issue in this case requires us to reverse Munninger's sentence. Henderson held that if a defendant does not object at trial a Blakely error is subject to fundamental error review and the defendant bears the burden of establishing that he was prejudiced by the error. 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. This burden requires a defendant to "show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result [in finding an aggravator] than did the trial judge." Id. at 569, ¶ 27, 115 P.3d at 609.

¶ 5 Henderson involved a super-aggravated sentence, so the issue was whether two aggravating factors existed.

If we find that a reasonable jury applying the correct standard of proof could have reached a different conclusion than did the trial judge as to any or all aggravators, we must then consider whether at least two aggravators not subject to such a conclusion remain to sustain the defendant's super-aggravated sentence. If not, the defendant has made an adequate showing of prejudice.

Id. at 569, ¶ 28, 115 P.3d at 609 (internal citations omitted). The court found that one, but only one, such circumstance was present: the age of the victim. Id. at 570, ¶ 33, 115 P.3d at 610. The defendant, therefore, had successfully demonstrated that he had been prejudiced by the Blakely error because "the victim's age, by itself, could not expose Henderson to [a] super-aggravated sentence." Id. at 570, ¶ 34, 115 P.3d at 610.

¶ 6 In this case, Munninger's sentence was not super-aggravated, so only a single aggravating factor would be enough to expose him to an aggravated sentence. Therefore, we must consider whether at least one aggravator remains to sustain the aggravated sentence.

¶ 7 In our previous opinion we determined that one aggravating fact, the victim's extraordinary harm, was "indisputable." Munninger, 209 Ariz. at 485, ¶ 40, 104 P.3d at 216. In other words, no reasonable jury would disagree with the judge's finding that the victim suffered extraordinary harm. In light of this finding, and applying Henderson, it was not fundamental error for Munninger to be exposed to an aggravated sentence. See also State v. Brown, 212 Ariz. 225, 231 n. 5, ¶ 28, 129 P.3d 947, 953 n. 5 (2006) (noting "that judicial factfinding may be harmless error when no reasonable jury could have reached a determination contrary to that made by the judge.").

¶ 8 We also conclude that it was not fundamental error for the trial court to consider other aggravating circumstances that are not Blakely-compliant in determining a sentence. As noted above, viciousness of the crime was also considered by the trial court and this factor was neither found by a jury nor found by this court to be indisputable. Nevertheless, once the sentencing range is expanded to allow an aggravated sentence, whether by proof of a Blakely-compliant factor or a finding under Henderson that reliance on an aggravator is not fundamental error, we see no reason why the rationale of Martinez does not apply to allow other factors to be considered. See also State v. Cleere, 213 Ariz. 54, 138 P.3d 1181 (App. 2006); State v. Molina, 211 Ariz. 130, 118 P.3d 1094 (App.2005). Consequently, Blakely does not require resentencing.

¶ 9 This does not, however, end our analysis. In our prior opinion we found that the trial judge improperly considered the use of a dangerous instrument or deadly weapon as an aggravating factor. We addressed this in the Blakely context and concluded that cases decided by both the supreme court and this court generally required resentencing when an invalid aggravating factor was relied upon by the trial court. We explained:

When a trial court relies on an improper factor, and we cannot be certain that it would have imposed the same sentence absent that factor, we must remand for resentencing. A sentencing error involving the improper consideration of aggravating factors is harmless only if we can be certain that, absent the error, the court would have reached the same result. [State v.] Hardwick, 183 Ariz. [649] at 656-57, 905 P.2d [1384] at 1391-92 [(App. 1995)]. After weighing and balancing aggravating and mitigating factors, the sentencing judge may "impose a just sentence anywhere within the range authorized by statute." State v. Henderson, 133 Ariz. 259, 263, 650 P.2d 1241, 1245 (App.1982), overruled in part on other grounds by State v. Pena, 140 Ariz. 544, 683 P.2d 743 (1984). The reversal of a single aggravating factor may mean that "the sentencing calculus . . . has changed." Lehr, 205 Ariz. at 109, ¶ 8, 67 P.3d at 705. The exercise of sentencing discretion is the trial court's, not ours. See A.H. by Weiss v. Superior Court, 184 Ariz. 627, 630, 911 P.2d 633, 636 (App.1996) ("[T]he sentence to be imposed is completely within the discretion of the trial judge."). The reversal of some aggravating factors affects the balance of all the circumstances, aggravating and mitigating, and the balancing process is within the realm of the sentencing judge.

Munninger, 209 Ariz. at 485, ¶ 41, 104 P.3d at 216. The question before us is whether this reasoning still applies now that Blakely is no longer an issue.

¶ 10 It appears to be undisputed that there was no objection below to the improper use of the dangerous instrument/deadly weapon aggravating factor. Indeed, in his opening brief Munninger stated it was a proper aggravating factor, and did not challenge it on appeal. Therefore, we review only for fundamental error. Again applying Henderson, the issue becomes whether the error was both fundamental and prejudicial. Once again, the burden is on the defendant.

¶ 11 Fundamental error will only be found in "those rare cases that involve `error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Generally, "[i]mposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App.2002). But see Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (holding Blakely error is not structural error entitling a defendant to automatic reversal).

¶ 12 In this case, Munninger did not receive an illegal sentence. His sentence was within the aggravated range prescribed for his offense. The sentencing judge "explicitly found that each of the aggravating factors alone would outweigh the mitigating factors." Munninger, 209 Ariz. at 486 n. 14, ¶ 42, 104 P.3d at 217 n. 14. Thus, it is clear that an aggravated sentence would have been imposed even if the improper aggravator had not been used. Under these circumstances, we do not believe any error was fundamental.

¶ 13 We find support for this conclusion in a recent supreme court case. In State v. Glassel, 211 Ariz. 33, 116 P.3d 1193 (2005), the supreme court addressed a similar issue, concluding:

We note that because Glassel's use of a deadly weapon was used to enhance the range of punishment under section 13-604(I), the trial court erred in relying on Glassel's use of a deadly weapon as an aggravating circumstance. See A.R.S. § 13-702(C)(2). . . . Glassel, however, has waived these issues by not raising them at trial or on appeal.

Id. at 57 n. 17, ¶ 101, 116 P.3d at 1217 n. 17. In specifically addressing the Blakely claim, the court concluded: "And because Glassel does not challenge...