State v. Resendis-Felix

• Decision Date: 10 November 2004
• Docket Number: No. 2 CA-CR 2003-0114-PR.,2 CA-CR 2003-0114-PR.
• Citation: 100 P.3d 457,209 Ariz. 292
• Parties: The STATE of Arizona, Respondent, v. Kostia Ivan RESENDIS-FELIX, Petitioner.
• Court: Arizona Court of Appeals

100 P.3d 457

209 Ariz. 292

The STATE of Arizona, Respondent, v. Kostia Ivan RESENDIS-FELIX, Petitioner.

No. -0114-PR.

Court of Appeals of Arizona, Division 2, Department A.

November 10, 2004.

Supplemental Opinion December 9, 2004.

Barbara LaWall, Pima County Attorney, By Elizabeth Hurley, Tucson, for Respondent.

Susan A. Kettlewell, Pima County Public Defender, By Frank P. Leto, Tucson, for Petitioner.

OPINION

BRAMMER, J.

¶ 1 Interrupted while stealing the victim's pickup truck, petitioner Kostia Ivan Resendis-Felix and an accomplice assaulted the victim, injuring him severely. Resendis-Felix was charged with attempted first-degree murder and five other class three and class four felonies. He agreed to plead guilty to aggravated robbery, a class three, dangerous-nature felony. At sentencing, the trial court found several aggravating factors—the presence of an accomplice, the severity of the beating inflicted on the victim, the past and future impact of the crime on the victim and his family, and the danger Resendis-Felix posed to the community—and imposed an aggravated, 13.5-year sentence of imprisonment. ¶ 2 Resendis-Felix filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., claiming the trial court had abused its discretion at sentencing by failing to find his age (eighteen), his immaturity, and his intoxication at the time of the offense to be mitigating factors and by imposing an aggravated sentence instead of the presumptive sentence of 7.5 years. The trial court denied relief, and Resendis-Felix petitioned this court for review.

¶ 3 In July 2004, with his petition for review still pending, Resendis-Felix filed a notice of supplemental authority and supplemental briefing, asking us to vacate his sentence and remand for resentencing consistent with Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely applies the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to an "exceptional" prison sentence imposed under Washington's sentencing statutes and holds that a defendant is constitutionally entitled to have a jury determine beyond a reasonable doubt the existence of any fact used to increase the penalty for a crime beyond the maximum prescribed by statute.

¶ 4 In response to Resendis-Felix's supplemental citation, the state argues Resendis-Felix waived the claim by failing to raise it until now and urges us not to consider the Blakely issue. Resendis-Felix counters that he did not waive the claim because he could not have made a knowing waiver of his rights under Blakely before Blakely was decided; that, at the time of his sentencing, our prior decision in State v. Brown, 205 Ariz. 325, 70 P.3d 454 (App.2003), later vacated by our supreme court, ___ Ariz. ___, 99 P.3d 15 (2004), had ruled Apprendi inapplicable to aggravating circumstances under A.R.S. § 13-702(C), further excusing his failure to raise the claim below; and that he had moved seasonably to supplement his petition to raise the issue within two weeks after the Supreme Court issued the Blakely decision.¹

¶ 5 Sentencing a defendant outside constitutional limits creates an illegal sentence, which can constitute fundamental error. See State v. Thues, 203 Ariz. 339, 54 P.3d 368 (App.2002). "In limited circumstances, we recognize that some issues may be so important that overriding considerations concerning the integrity of the system will excuse a party's failure to raise the issue in the trial court. This limited exception is known as the doctrine of `fundamental error.'" State v. White, 194 Ariz. 344, ¶ 45, 982 P.2d 819, 829 (1999).

¶ 6 Based on the Supreme Court's holding and rationale, we believe Blakely error falls within that "limited exception" and, unless harmless, constitutes fundamental error. We will, therefore, in our discretion address Resendis-Felix's supplemental issue. See State v. Taylor, 187 Ariz. 567, 931 P.2d 1077 (App.1996) (appellate court has authority to reverse when it discovers fundamental error); see also State v. Dewakuku, 208 Ariz. 211, ¶ 7, 92 P.3d 437, 440 (App.2004) (considering application of Apprendi to finding of defendant's on-release status, even though defendant had not objected to court's making finding below, because "a sentence that is improperly imposed can be reversed on appeal despite the lack of an objection"); State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App.1995) (fundamental error for trial court to make sentence-enhancement determination jury was required to make); cf. Montgomery v. Sheldon, 182 Ariz. 118, 119, 893 P.2d 1281, 1282 (1995) ("[A] Rule 32 proceeding is the appeal for a defendant pleading guilty."); State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App.2001) (because Apprendi presents new rule of constitutional law, its holding will be applied to cases pending on direct review).

¶ 7 In Apprendi, the United States Supreme Court held: "Other than the fact of a prior conviction, 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." In Blakely, the Court elaborated on the holding of Apprendi, stating 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, 159 L.Ed.2d at ___. Here, the maximum prison sentence authorized solely by Resendis-Felix's guilty plea was the presumptive term of 7.5 years. A.R.S. §§ 13-604(I) and 13-702(B) and (C). His aggravated 13.5-year sentence, therefore, was imposed in violation of Apprendi and Blakely.

¶ 8 That conclusion, however, does not end our inquiry. Our supreme court has held that Apprendi error may be harmless. See State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) ("Ring III"); see also State v. Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (finding Apprendi error harmless in capital sentencing following guilty plea to first-degree murder); State v. Sepahi, 206 Ariz. 321, 324 n. 3, 78 P.3d 732, 735 n. 3 (2003) ("any Apprendi error would be harmless"); State v. Miranda-Cabrera, ___ Ariz. ___, 99 P.3d 35 (App.2004). Error is harmless if we can say beyond a reasonable doubt that it did not affect the sentence. State v. Cropper, 206 Ariz. 153, 76 P.3d 424 (2003); see also State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239 (2003) (error is harmless "if the court's review of the entire trial record shows `every fact necessary to establish every element of the offense beyond a reasonable doubt'"), quoting Rose v. Clark, 478 U.S. 570, 581, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460, 472 (1986) (internal quotation omitted in Dann).

¶ 9 We are unable to conclude the error is harmless in this case. Resendis-Felix did not admit any of the aggravating factors found by the court to exist here, and none of them is inherent in his admission that he had committed aggravated robbery. Moreover, most of the aggravating circumstances found by the trial court are inherently subjective, and one—danger to the community—is not among the aggravating factors expressly set forth in § 13-702(C). The trial court can only have found this circumstance under the catch-all provision, § 13-702(C)(20), "[a]ny other factor that the court deems appropriate to the ends of justice." It is uncertain whether a jury would even have considered this non-enumerated factor, much less found it established beyond a reasonable doubt. Indeed, the trial court's aggravating-circumstance findings could have been based merely on "reasonable evidence in the record," State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257, 1261 (App.1982); State v. Viramontes, 204 Ariz. 360, 64 P.3d 188 (2003), and not satisfied the higher, beyond-a-reasonable-doubt standard Blakely and Apprendi mandate for jury findings.

¶ 10 The concurring opinion concludes that Blakely error is actually structural error and thus not subject to harmless-error analysis. Although we agree with much of the analysis in the concurrence, we feel constrained by our supreme court's language in paragraphs fifty-one through fifty-three of Ring III holding to the contrary. The court cited federal cases holding that not just Ring error in the capital context, but Apprendi error in the noncapital context, can be subject to harmless error analysis. See e.g., United States v. Dumes, 313 F.3d 372 (7th Cir.2002); United States v. Matthews, 312 F.3d 652 (5th Cir.2002); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); accord United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002); United States v. White, 240 F.3d 127 (2d Cir.2001). United States v. Candelario, 240 F.3d 1300 (11th Cir.2001); United States v. Terry, 240 F.3d 65 (1st Cir.2001); United States v. Nance, 236 F.3d 820 (7th Cir.2000); United States v. Lewis, 235 F.3d 215 (4th Cir.2000); United States v. Meshack, 225 F.3d 556 (5th Cir.2000); Miranda-Cabrera.

¶ 11 Because we cannot conclude beyond a reasonable doubt that the Blakely error did not contribute to or affect the sentencing outcome here, we will not consider it harmless. Cropper. Accordingly, we grant the petition for review and grant relief although on grounds different than those presented in the petition. We vacate Resendis-Felix's sentence and remand the case for resentencing pursuant to Blakely.

HOWARD, P.J., concurring.

ECKERSTROM, Judge, specially concurring.

¶ 12 Although I concur with the result, I write separately because I disagree with the majority's conclusion that our supreme court's opinion in Ring III requires us to conclude that Blakely error is subject to harmless error analysis. As the court observed in Ring III, most trial errors that we encounter on appeal, even those that involve violations of federal constitutional rights, are subject to harmless error analysis. Id. ¶ 45, 65 P.3d 915. However, the United States...