State v. Bell

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SEMICE BELL, Appellant.

No. 1 CA-CR 22-0354
FILED 2-1-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-002125-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

The Susser Law Firm PLLC, Chandler
By Adam M. Susser
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
 STATE v. BELL
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr., and Judge Cynthia J. Bailey joined.

F U R U Y A, Judge:

¶1 Semice Bell appeals the superior court’s sentence of 20 years’
imprisonment for Manslaughter, a Class 2 dangerous and repetitive felony,
which is greater than the presumptive term for this offense. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2021, Bell shot and killed D.M. at an apartment
complex in Phoenix because he believed D.M. had stolen his drugs.

¶3 Soon after, police officers arrested Bell and found the firearm
used to shoot D.M. wrapped in a towel on the ground next to Bell.

¶4 In October 2021, a grand jury indicted Bell for one count of
Murder in the Second Degree, a Class 1 dangerous felony. The indictment
alleged the crime was a dangerous offense because it involved the use of a
deadly weapon or dangerous instrument (the “dangerousness allegation”).
The following month, the State alleged several aggravators, including: two
historical prior felonies, two non-historical prior felonies, and 25 separate
aggravating circumstances.

¶5 After trial, the jury found Bell guilty of the lesser-included
offense of Manslaughter and separately found the dangerousness
allegation proven. The jury’s verdict did not specify whether the
dangerousness allegation was an enhancing or aggravating circumstance.
And the jury did not make any findings regarding the other alleged
aggravating circumstances.

¶6 Bell filed a motion to strike “allegations of aggravating
factors,” claiming, as relevant, that the jury’s failure to designate the
dangerousness allegation as an aggravating circumstance precluded the
court from aggravating his sentence. The court denied the motion. The
court sentenced Bell, as a non-dangerous, category-three repetitive

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Decision of the Court

offender, to a greater than presumptive term of 20 years’ imprisonment
under Arizona Revised Statutes (“A.R.S.”) §§ 13-702, -704, and -710.

¶7 Bell timely appealed and we have jurisdiction under A.R.S. §§
12-2101(A)(1), 13-4031, and 13-4033(A)(4).

DISCUSSION

¶8 On appeal, Bell contends the superior court violated Blakely v.
Washington, 542 U.S. 296 (2004), when it used the dangerousness allegation
to aggravate his sentence. Bell reasons (1) that the State intended the
dangerousness allegation to enhance his sentencing range and the court
erred by instead using it to aggravate his sentence; and (2) the jury did not
designate its finding regarding the dangerousness allegation as an
aggravating circumstance.

¶9 Bell argues our review of the Blakely issues should be
conducted under the abuse of discretion standard, referring to his motion
to strike and citing State v. Burns, 231 Ariz. 563, 564–65 (App. 2013). The
State argues that Bell’s Blakely claim was not fairly raised to the superior
court in the motion to strike and therefore we should review only for
fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140 ¶ 12
(2018) (explaining when a defendant fails to raise an objection before the
trial court, “we will not reverse unless the court committed error that was
both fundamental and prejudicial.”). But we need not decide whether the
abuse of discretion standard or the fundamental error standard applies
because, as explained below, we conclude the superior court did not
commit a Blakely error regardless of the standard of review applied. Burns,
231 Ariz. at 564.

¶10 Under Blakely, “[o]ther 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.” Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)). At bottom, Bell contends the court could aggravate his sentence
only if the jury had expressly identified facts specifically as “aggravating
circumstances.” We agree with the State that Bell misconstrues the
language of Blakely.

¶11 Per Blakely, facts establishing an aggravating circumstance
must be submitted to the jury for a finding beyond a reasonable doubt. Id.
Said differently, facts need not be specifically designated and addressed as
sentence aggravators to be used for that purpose, so long as those facts were
found by a jury beyond a reasonable doubt. See State v. Cropper, 206 Ariz.

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153, 156, ¶ 10 n.2 (2003) (stating that aggravating factors may be “implicitly
established” by a jury’s verdict “even though the aggravator itself was not
found by a jury”).

¶12 Here, the jury found, beyond a reasonable doubt, that D.M.’s
killing “involved the discharge, use or threatening exhibition of a handgun,
deadly weapon or dangerous instrument.” This fact constitutes a
qualifying1 “aggravating circumstance[]” that the court could consider. See
A.R.S. § 13-701(D)(2) (requiring the court consider “[u]se, threatened use or
possession of a deadly weapon or dangerous instrument during the
commission of the crime” as an aggravating factor (emphasis added)).
Thus, the jury’s finding allows the court to impose a greater than
presumptive sentence. See State v. Martinez, 210 Ariz. 578, 585 ¶ 26 (2005)
(“[O]nce a jury finds or a defendant admits a single aggravating factor, the
Sixth Amendment permits the sentencing judge to find and consider
additional factors relevant to the imposition of a sentence up to the
maximum prescribed in that statute.”). Because the court’s sentence was
supported by a qualifying fact under A.R.S. § 13-701(D)(2)2 found by a jury
beyond a reasonable doubt, Bell has failed to establish any error, let alone
fundamental error. See Burns, 231 Ariz. at 564; Escalante, 245 Ariz. at 142 ¶
21.

¶13 Bell also contends that because the State alleged the
dangerous nature of his offense as an enhancer pursuant to A.R.S. § 13-704
only for the Second-Degree Murder charge, the State could not use that
circumstance as an aggravator for Manslaughter, the crime of his
conviction. In so arguing, Bell claims that the dangerousness allegation was
subject to a different evidentiary standard depending on the purpose for
which it was alleged. But nothing in this record supports his claim. To the
contrary, the jury’s verdict form, to which Bell did not object, shows the
dangerousness allegation was “proven,” as to Manslaughter. And further,
the jury received instruction on only one burden of proof—beyond a

1 Section 13-701(D)(2) excludes “use or possession of a deadly weapon
or dangerous instrument” as an aggravating circumstance under conditions
not applicable to Bell.

2 Because we conclude the jury’s finding that Bell used a deadly
weapon during the commission of the crime of which he was convicted
complies with the requirements of Blakely, we do not reach his other
arguments regarding use of serious physical injury as an additional
aggravating circumstance. See A.R.S. § 13-701(C) (requiring only one
aggravating factor to impose maximum sentence).

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reasonable doubt—and we presume the jury followed that instruction. See
State v. Smith, 228 Ariz. 126, 129 ¶ 11 (App. 2011). Because Bell’s contention
is unsupported by the record and is inconsistent with the court’s
instructions on the applicable burden of proof, Bell has failed to establish
any error.

¶14 Bell further suggests the State’s failure to amend its
allegations specific to aggravating circumstances to include use of a deadly
weapon or dangerous instrument deprived him of notice that his sentence
could be aggravated, thus violating his due process rights. But Bell’s use of
a deadly weapon or dangerous instrument was alleged in the indictment
via the dangerousness allegation. And the jury found this fact “proven”
based upon the evidence adduced at trial, after hearing argument from both
counsel, and presumptively following the court’s instruction on the burden
of proof. Id. Moreover, the State disclosed its intent to seek an aggravated
sentence in its sentencing memorandum, giving Bell an opportunity to
make these arguments during the sentencing proceedings. See State v.
Williams, 144 Ariz. 433, 442 (1985) (holding that a defendant is not
prejudiced if he has “timely notice” of the prosecutor’s intent before trial).
However, Bell never raised the notice objection to the superior court, and
we discern no fundamental error. See Escalante, 245 Ariz. at 142 ¶ 21 (under
fundamental error review, a defendant bears the burden on appeal to
establish “that (1) the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or (3) the error was
so egregious that he could not possibly have received a fair trial. If the
defendant establishes fundamental error under prongs one or two, he must
make a separate showing of prejudice.”).

¶15 Accordingly, the court did not err in sentencing Bell to a
greater than presumptive term of 20 years’ imprisonment for
Manslaughter.

CONCLUSION

¶16 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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