State v. Munninger

• Citation: 104 P.3d 204,209 Ariz. 473
• Decision Date: 20 January 2005
• Docket Number: No. 1 CA-CR 03-0328.,1 CA-CR 03-0328.
• Parties: STATE of Arizona, Appellee, v. John Karl MUNNINGER, Appellant.
• Court: Court of Appeals of Arizona

104 P.3d 204

209 Ariz. 473

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

No. -0328.

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

January 20, 2005.

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

James J. Haas, Maricopa County Public Defender, By James L. Edgar, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

LANKFORD, Presiding Judge.

¶ 1 This opinion addresses questions regarding the application of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). By memorandum decision, we previously vacated Defendant's sentence and remanded for resentencing. Defendant received an aggravated sentence based on facts found by a judge. Blakely requires as a matter of federal constitutional law that a jury find all facts that can increase punishment beyond the punishment supported by the guilty verdict alone.

¶ 2 The State moved for reconsideration of our decision. In the memorandum decision, we had vacated an aggravated and enhanced sentence of twelve and one-half years imprisonment for aggravated assault.¹ The sentencing court had relied upon facts in aggravation not found by the jury. We held that because the aggravating circumstances were not found by the jury, and because this failing was fundamental error, the Defendant must be resentenced.

¶ 3 The State's motion for reconsideration of our decision advanced two arguments. The State contended that Defendant waived the Blakely error, and that any such error was harmless. The State did not dispute that the failure to submit the aggravating factors to the jury was error. We permitted the Defendant to respond. See Ariz. R.Crim. P. 31.18(b). We now withdraw our prior memorandum decision and address the issues by opinion.

I.

¶ 4 The context in which the Blakely issues arise is a conviction for aggravated assault, a class three dangerous felony. Defendant encountered the victim late at night outside of a bar. Defendant and the victim bumped into each other. The victim responded verbally, and the situation became hostile. Defendant's friends pushed him away from the victim. Defendant stated that he was going to stab the victim. He approached the victim, restrained the victim's right arm, and cut under his left armpit with a sharp instrument. One of the victim's friends pushed Defendant away, and he fled the scene.

¶ 5 The victim's artery and all nearby major nerves and veins were severed. Emergency surgery was required to restore blood flow to his arm. Many more surgeries were performed, but the victim essentially cannot use his left arm or hand, and doctors gave him a "poor prognosis." The victim has suffered from constant pain and extensive scarring. The victim's body cannot control the swelling of the arm due to severed lymph nodes.

¶ 6 Defendant was charged with aggravated assault. A jury convicted him and found that the offense was dangerous. The court imposed an aggravated and enhanced sentence of 12.5 years of imprisonment. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1)(2003), 13-4031 (2001), and 13-4032 (2001).

II.

¶ 7 We first consider whether we should ignore the error because Defendant waived it. Defendant neither cited Blakely nor argued the constitutional issue when he objected to his sentence. However, the Supreme Court had not decided Blakely until after Defendant had been sentenced, and Defendant therefore could not have cited it at sentencing.²

¶ 8 A defendant does not waive error that could not have been recognized until the defendant's case was pending on appeal due to a change in the law. Ranburger v. S. Pac. Transp. Co., 157 Ariz. 547, 550, 760 P.2d 547, 550 (App.1986), vacated on other grounds, 157 Ariz. 551, 760 P.2d 551 (1988)

. See State v. Miranda, 200 Ariz. 67, 68 n. 1, 22 P.3d 506, 507 (2001). Until Blakely was decided, the Arizona appellate courts had declared that no error occurs in a non-capital case when the judge and not the jury found the aggravating circumstances. State v. Brown, 205 Ariz. 325, 70 P.3d 454 (App.2003),

vacated,

209 Ariz. 200, 99 P.3d 15 (2004). Brown unequivocally stated that, "[b]ased on any eventual findings of aggravating or mitigating circumstances," a "judge may ... adjust the sentence within the statutory sentencing range without running afoul of the United States or Arizona Constitutions." 205 Ariz. at 333, ¶ 26, 70 P.3d at 462. Blakely represented a change in the law, and Defendant therefore did not waive the defect by failing to raise it. "[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final...." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). See also State v. Miranda-Cabrera, 209 Ariz. 220, 226, ¶ 26, 99 P.3d 35, 41 (App.2004) (citing Griffith, 479 U.S. at 328,

107 S.Ct. 708). "[C]ourts from around the country have recognized that a criminal defendant whose appeal was pending at the time Blakely was decided does not waive his Blakely-related arguments simply because he did not make those same arguments to the trial court." State v. Barnette, No. 02 CA 65, 2004 WL 3090228, at *26, ¶ 153 (Ohio App. Dec. 28, 2004) (citations omitted).

¶ 9 Moreover, we need not apply waiver even when a party has failed to preserve an issue. The practice of not addressing issues for the first time on appeal is merely a rule of procedure and does not confine our jurisdiction. Town of S. Tucson v. Bd. of Supervisors of Pima Co., 52 Ariz. 575, 582, 84 P.2d 581, 584 (1938); Tellez v. Saban, 188 Ariz. 165, 171 n. 3, 933 P.2d 1233, 1239 n. 3 (App.1996). The appellate court has discretion whether to apply waiver. Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 39, 945 P.2d 317, 350 (App.1996). The courts often decline to apply waiver when the issue is of constitutional importance, is of general statewide importance, or will dispose of the appeal. Aldrich & Steinberger v. Martin, 172 Ariz. 445, 447-48, 837 P.2d 1180, 1182-83 (App.1992); In re Estates of Spear, 173 Ariz. 565, 567, 845 P.2d 491, 493 (App.1992). For example, on appropriate occasions our supreme court has considered issues briefed neither in the trial court nor in the court of appeals, e.g., Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984),

an example we have followed in reaching unbriefed but dispositive issues which require no additional facts. E.g., State v. Ariz. Prop. and Cas. Ins. Guar. Fund, 192 Ariz. 390, 392 n. 4, 966 P.2d 557, 559 n. 4 (App.1998) (citing Barrio, 143 Ariz. at 104,

692 P.2d at 283). See also Jimenez v. Sears Roebuck & Co., 183 Ariz. 399, 406 n. 9, 904 P.2d 861, 868 n. 9 (1995) (constitutional issues advanced in neither trial court nor court of appeals were reached). The issue presented in this case is an important one of constitutional dimension. We therefore decline to apply waiver.

¶ 10 Even if the error were waived, we can review for fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). Blakely error is reviewable on appeal as fundamental error. State v. Resendis-Felix, 209 Ariz. 292, 294, ¶ 6, 100 P.3d 457, 459 (App.2004); State v. Oaks, No. 2 CA-CR XXXX-XXXX, ___ Ariz. ___, ___, ¶ 21, 104 P.3d 163, 167, ¶ 21, 2004 WL 2955944, at *5 (Ariz.App. Dec.22, 2004); State v. Burdick, No. 2 CA-CR XXXX-XXXX, ___ Ariz. ___, ___, ¶ 12, 104 P.3d 183, 186, ¶ 12, 2005 WL 78325, at *3 (Ariz.App. Jan.14, 2005).

¶ 11 The application of the fundamental error doctrine comports with a long line of Arizona cases that regard an illegal sentence, including a sentence that results from improper consideration of a fact to increase the sentence, as fundamental error. E.g., State v. Thues, 203 Ariz. 339, 340,

¶ 4, 54 P.3d 368, 369 (App.2002) (sentence enhancement); State v. Cox, 201 Ariz. 464, 468, ¶ 13, 37 P.3d 437, 441 (App.2002) ("sentencing process was fundamentally flawed" due to consideration of incorrect sentencing range, even though length of sentence did not exceed statutory maximum). This includes the similar error³ of failing to submit to a jury a sentencing enhancement allegation. State v. Johnson, 183 Ariz. 358, 360, 903 P.2d 1116, 1118 (App.1995).

¶ 12 Finally, the right to a jury trial requires an affirmative waiver that is knowing and voluntary. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)

; Ariz. R.Crim. P. 18.1. What is at issue is a defendant's right to a jury trial on sentencing factors. The record reveals no proper waiver of that right. Accordingly, Defendant cannot be said to have waived it. See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) ("for a waiver to be effective it must be clearly established that there was `an intentional relinquishment or abandonment of a known right.'") (quoting Zerbst, 304 U.S. at 464,

58 S.Ct. 1019); State v. Smith, 197 Ariz. 333, 338, ¶ 16, 4 P.3d 388, 393 (App.1999) ("[B]efore there can be a waiver, the record must show a knowing waiver by defendant.") (quoting State v. Prince, 142 Ariz. 256, 258, 689 P.2d 515, 517 (1984)). Whether Defendant's sentence was invalid under Blakely was not waived.⁴

III.

¶ 13 Because the error was not waived, we proceed to consider whether it was harmless. Failure to submit an aggravating factor to the jury is subject to review for harmless error. State v. Ring, 204 Ariz. 534, 552, ¶ 44, 65 P.3d 915, 933 (2003). Sentencing error is harmless only if we can say with certainty that the same sentence would have obtained if the error had not occurred. State v. Hardwick, 183 Ariz. 649, 656-57, 905 P.2d 1384, 1391-92 (App.1995). The failure to submit an aggravating factor to the jury may be harmless when "no reasonable jury ...