State v. Blackwell

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Petitioner,

v.

ROBERT WILLIAM BLACKWELL, Respondent.

No. 1 CA-SA 25-0316
FILED 05-20-2026

Petition for Special Action from the Superior Court in Maricopa County
No. CR2023-006734-001
The Honorable Utiki Spurling Laing, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Petitioner

The Law Office of Kyle T. Green P.L.L.C., Mesa
By Kyle T. Green
Counsel for Respondent
 STATE v. BLACKWELL
Opinion of the Court

OPINION

Acting Presiding Judge Michael J. Brown delivered the opinion of the
Court, in which Judge Andrew J. Becke and Chief Judge Randall M. Howe
joined.

B R O W N, Judge:

¶1 When the State alleges that certain convictions qualify as
“historical prior felony convictions,” resolving that allegation may turn on
whether the offenses underlying a defendant’s prior convictions were
committed on the “same occasion” and thus qualify as only a single
conviction. See A.R.S. § 13-703(L). In this special action, the State asks us to
declare that a judge, instead of a jury, can make that decision.

¶2 As explained more fully below, a defendant facing a potential
enhanced sentence has the constitutional right to a jury determination on
prior convictions for any factual determination that falls outside a narrow
exception the United States Supreme Court has adopted. Thus, if the State
seeks to prove that certain offenses were not committed on the same
occasion and relies on evidence that goes beyond the mere existence of the
prior convictions, the State must prove its case to a jury beyond a reasonable
doubt. We therefore accept jurisdiction but deny relief.

BACKGROUND

¶3 Before Robert Blackwell’s 2024 trial on two counts of
aggravated driving under the influence, the State filed an allegation of 11
historical felony convictions. See A.R.S. § 13-703 (outlining requirements
for sentencing repetitive offenders). Four offenses underlying those
convictions were committed in 1980, one in 1996, and two each in 1997,
2004, and 2017.

¶4 A jury found Blackwell guilty as charged and, given that he
had absconded, the superior court issued a bench warrant for his arrest.
After Blackwell was apprehended, the court set a jury trial to determine the
effect of Blackwell’s prior convictions on sentencing. The State moved to
vacate the jury trial, asserting that despite Erlinger v. United States, 602 U.S.
821 (2024), and State v. Porter, 258 Ariz. 590 (App. 2024), depublished in part
by 259 Ariz. 467 (2025), judges can determine the number of historical prior

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Opinion of the Court

felony convictions a defendant has when “the calculation is based entirely
on objective data gathered from conclusive judicial records.”

¶5 The superior court denied the motion, explaining that under
Erlinger, the State must proceed with a jury trial, particularly when the prior
offenses were committed on different dates, at different locations, and there
is uncertainty whether some offenses were continuations of others. The
court then granted the State’s motions for designation of a question for
special action review and to stay the sentencing proceedings pending the
resolution of this special action. See Ariz. R.P. Spec. Act. 13(a) (permitting
courts to “designate a question arising from any decision it has made as one
it believes should be reviewed by special action”). This special action
followed.

DISCUSSION

¶6 Special action jurisdiction is discretionary and is
appropriately exercised when a party has no “equally plain, speedy, and
adequate” remedy by appeal. Ariz. R.P. Spec. Act. 2(b)(2). We accept
special action jurisdiction here because the issue presented (1) has been
designated for review by the superior court, (2) involves a matter of first
impression, (3) has statewide importance, and (4) the State has no “equally
plain, speedy, or adequate” remedy by appeal. See Ariz. R.P. Spec. Act.
12(a), (b)(1), (3)–(4); see also Hamlet v. State, ___ Ariz. ___, ___, ¶ 8, 581 P.3d
244, 248 (App. 2025); State v. Smith, ___ Ariz. ___, ___, ¶ 7, 585 P.3d 808, 812
(App. 2025).

A. “Same Occasion” Inquiry

¶7 Arizona has many categories of historical prior felony
convictions, including “[a]ny felony conviction that is a third or more prior
felony conviction.” A.R.S. § 13-105(22)(d). A defendant with multiple
historical prior felony convictions is subject to enhanced (longer) prison
sentences depending on which sentencing category applies. See A.R.S.
§ 13-703(A)–(C). A “category two” repetitive offender has one historical
prior felony conviction, while a “category three” repetitive offender has two
or more historical prior felony convictions. A.R.S. § 13-703(B)–(C).

¶8 In deciding whether a defendant is a category two or three
repetitive offender, convictions for multiple offenses committed on the
“same occasion” count as a single conviction. A.R.S. § 13-703(L). “Same
occasion” is not defined by statute, but as explained by our supreme court,
the same-occasion inquiry includes analysis of the following factors:

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Opinion of the Court

[W]hen different crimes, even though unrelated in nature, are
committed at the same place, on the same victim or group of
victims, and at the same time or as part of a continuous series
of criminal acts, they should be considered as having been
committed on the “same occasion” for purposes of sentence
enhancement.

State v. Kelly, 190 Ariz. 532, 534, ¶ 6 (1997) (quoting State v. Henry, 152 Ariz.
608, 612 (1987)). Whether multiple offenses were committed on the same
occasion is not governed by an “all-encompassing test,” State v. Sheppard, 179 Ariz. 83, 84 (1994), and “[t]he determination necessarily must turn on
the specific facts of each case,” Kelly, 190 Ariz. at 535, ¶ 9. In construing
federal law, federal courts apply similar factors. See Wooden v. United States, 595 U.S. 360, 369 (2022) (noting that timing, proximity of location, and the
character and relationship of the offenses must be considered when
determining whether offenses were committed on the same occasion).

¶9 The State seeks to establish that Blackwell is a category three
repetitive offender by proving to a judge, instead of jury, that at least three
of his prior felony convictions were committed on separate occasions.
Except for urging us to eliminate consideration of the Kelly factors as a
matter of statutory construction, see infra ¶¶ 23–24, the State does not argue
these factors are inapplicable. Instead, the State asserts that when
conviction records indisputably demonstrate the separate nature of prior
offenses, the court can simply make a same-occasion “numerical tally.”

¶10 To address the State’s position, we turn first to Supreme Court
precedent, which has consistently held that in the realm of sentencing
enhancement, almost all factual disputes must be resolved by a jury. In
Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that “[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.” Id. at 490 (emphasis added); see also State
v. Robles, 213 Ariz. 268, 273, ¶ 16 (App. 2006) (explaining the fact of a prior
conviction can be proven by “certified conviction documents bearing the
defendant’s fingerprints,” commitment records, or by other evidence). The
Court affirmed Apprendi in Erlinger, a case “nearly on all fours with
Apprendi.” Erlinger, 602 U.S. at 835.

¶11 In Erlinger, the defendant pled guilty to unlawful possession
of a firearm under 18 U.S.C. § 922(g), a crime carrying a sentence of up to
10 years. Id. at 825–26. The government, however, alleged Erlinger’s crime
triggered the Armed Career Criminal Act (ACCA), which provides that

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defendants with “three prior convictions for ‘violent felon[ies]’ or ‘serious
drug offense[s]’ that were ‘committed on occasions different from one another,’
. . . face[] . . . a minimum of 15 years and a maximum of life.” Id. at 825
(quoting 18 U.S.C. § 924(e)(1) (2012)) (emphasis added).

¶12 The government pursued a 15-year ACCA sentence using
Erlinger’s previous burglary convictions. Id. at 826. The prosecution
argued that he committed several distinct burglaries on different occasions,
and thus “each could serve as an ACCA predicate and collectively they
could support an ACCA sentence.” Id. at 826–27. Erlinger countered that
the burglaries had occurred “during a single criminal episode,” and a jury
needed to make the same-occasion inquiry. Id. at 827.

¶13 The district court rejected Erlinger’s jury request and the
Seventh Circuit affirmed, rejecting his argument that a jury was required
“to decide unanimously and beyond a reasonable doubt” whether his prior
offenses were committed on the same occasion. Id. at 827–28. The Supreme
Court reversed.

¶14 Noting that “within a span of days Mr. Erlinger burglarized a
pizza shop, a sporting goods store, and two restaurants,” id. at 826, the
Court explained in part:

While recognizing Mr. Erlinger was entitled to have a jury
resolve ACCA’s occasions inquiry unanimously and beyond
a reasonable doubt, we decide no more than that. For
purposes of the proceedings before us, the parties take as
given that Mr. Erlinger committed four burglaries and that
each qualifies as a “violent offense” under ACCA. But they
disagree vigorously about whether those burglaries took
place on at least three different occasions (so that ACCA’s
enhanced sentences would apply) or during a single criminal
episode (so that they would not). Presented with evidence
about the times, locations, purpose, and character of those
crimes, a jury might have concluded that some or all occurred
on different occasions. Or it might not have done so. All we
can say for certain is that the sentencing court erred in taking
that decision from a jury.

Id. at 835.

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¶15 The Court reiterated that whether prior offenses occurred on
the same occasion goes beyond the Apprendi prior conviction exception
because a court must “do more than identify . . . previous convictions and
the legal elements required to sustain them.” Id. at 838. “[T]he Fifth and
Sixth Amendments generally guarantee a defendant the right to have a
unanimous jury find beyond a reasonable doubt any fact that increases his
exposure to punishment,” id. at 828, and “arguments [for] efficiency cannot
alter the demands of the Fifth and Sixth Amendments,” id. at 847.

¶16 After Erlinger, this court addressed a similar issue in Porter,
where the superior court held a bench trial to determine the effect of
Porter’s historical prior felony convictions on sentencing. See Porter, 258
Ariz. at 592, ¶ 3. A probation officer testified that Porter “had been
convicted of two separate armed robberies in 2015 that were tried and
sentenced under the same case number,” and the State presented a
sentencing minute entry showing that Porter committed the armed
robberies on August 22, 2015 and September 1, 2015. Id. Porter testified
that he had only one prior conviction but presented no other evidence. Id.
at ¶ 4. The superior court determined the State proved Porter had two
historical prior felony convictions, sentencing him to a presumptive term of
15.75 years imprisonment and another 3 years for his probation violation.
Id. at ¶ 5.

¶17 On appeal, this court concluded fundamental error occurred
when Porter’s historical prior felony conviction sentencing issue was not
presented to a jury. Id. at 593, ¶¶ 9–10. As we explained, “[b]ecause the
outcome of the ‘same occasion’ determination could enhance a defendant’s
sentence, and falls outside the Apprendi exception for ‘the fact of a prior
conviction,’ the issue should have been submitted to a jury.” Id. at ¶ 10
(quoting Apprendi, 530 U.S. at 490). Porter, however, failed to show the
error was prejudicial. Id.

¶18 The State argues Erlinger did not erase the Apprendi prior
conviction exception. See Apprendi, 530 U.S. at 490. We agree; however, the
State fails to acknowledge that under the prior conviction exception, a judge
may “do no more, consistent with the Sixth Amendment, than determine what
crime, with what elements, the defendant was convicted of,” Mathis v. United
States, 579 U.S. 500, 511–12 (2016) (emphasis added). Whether certain
historical prior felony convictions committed by Blackwell occurred on the
same occasion necessarily goes beyond determining what crimes he
committed and the elements of each crime.

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Opinion of the Court

¶19 Even so, the State contends that the circumstances here differ
from those in Erlinger because no “reasonable dispute” exists that
Blackwell’s prior offenses occurred on separate occasions, and thus no
reasonable trier of fact could find against the State. But Erlinger confirms
that we cannot rule in the State’s favor simply because the prosecution may
have an unassailable position that Blackwell’s crimes were not committed
on the same occasion:

Often, a defendant’s past offenses will be different enough
and separated by enough time and space that there is little
question he committed them on separate occasions. But none
of that means a judge rather than a jury should make the call.
There is no efficiency exception to the Fifth and Sixth Amendments.
In a free society respectful of the individual, a criminal
defendant enjoys the right to hold the government to the
burden of proving its case beyond a reasonable doubt to a
unanimous jury of his “peers regardless of how
overwhelmin[g]” the evidence may seem to a judge.

602 U.S. at 842 (emphasis added) (quoting Rose v. Clark, 478 U.S. 570, 578
(1986)). Accordingly, the State cannot circumvent a defendant’s right to
have a jury determine whether a defendant’s prior convictions were
committed on the same occasion. See Porter, 258 Ariz. at 593, ¶¶ 10, 14
(concluding the superior court erred by not requiring a jury to determine
whether armed robberies that occurred 10 days apart took place on the
same occasion).

¶20 The State suggests that because this court determined the
defendant in Porter was not prejudiced by the absence of a jury trial,
Blackwell cannot show prejudice given that his offenses span much longer
timelines than those at issue in Porter. See id. at 592, ¶ 2. But the Porter court
held that remanding for a jury trial was unnecessary because the defendant
failed to meet his burden on direct appeal of showing he was prejudiced.
Id. at 593, ¶ 14. That analysis is significantly different from the sole issue
presented in this special action—whether a jury must determine whether
the offenses relating to Blackwell’s prior convictions were committed on the
same occasion. Because resolving that issue necessarily involves more than
just proving the fact of a prior conviction, the State’s reliance on the lack of
prejudice finding in Porter is misplaced. See id. We decline to create an
efficiency exception to Erlinger’s jury trial requirement that prejudges the
strength of the State’s case because doing so would deprive Blackwell of his
constitutional rights.

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Opinion of the Court

¶21 We also note the significance of requiring that the same-
occasion inquiry be decided by a jury, which requires proof beyond a
reasonable doubt of each element of the crime at issue, including facts that
may increase a defendant’s potential punishment. See Alleyne v. United
States, 570 U.S. 99, 103 (2013) (“Any fact that, by law, increases the penalty
for a crime is an ‘element’ that must be submitted to the jury and found
beyond a reasonable doubt.”). As Erlinger recognized, if the fact of a prior
conviction is presented for consideration by a judge, the government must
prove that issue by a preponderance of the evidence. 602 U.S. at 834–35.
Under Arizona law, if presented to a judge, the State must prove the “fact”
of a prior conviction by clear and convincing evidence. See State v. Cons, 208 Ariz. 409, 415, ¶ 15 (App. 2004). When the issues presented go beyond
that, such as the situation here, the State must prove its allegations beyond
a reasonable doubt to a jury. See Erlinger, 602 U.S. at 840 (noting that the
Fifth and Sixth Amendments guarantee that a jury, not a sentencing court,
must determine the same-occasion inquiry unanimously and beyond a
reasonable doubt).

¶22 The principle confirmed by Erlinger, and which we apply
here, is followed by courts in other jurisdictions. See, e.g., People v. Gregg,
576 P.3d 725, 731, ¶ 25 (Colo. 2025) (holding that “a jury should . . .
determine whether the defendant’s prior offenses were based on charges
arising out of separate and distinct criminal episodes”); United States v.
Thomas, 142 F.4th 412, 417 (6th Cir. 2025) (noting the government’s
concession that Erlinger error occurred because a jury did not determine
whether prior offenses were committed on different occasions); United
States v. Butler, 122 F.4th 584, 590 (5th Cir. 2024) (concluding the court erred
by failing to submit the same-occasion inquiry to a jury when a defendant’s
prior crimes spanned several years, but the error was harmless); United
States v. Beasley, 163 F.4th 403, 409–11 (7th Cir. 2025) (finding the trial court
erred by imposing a sentencing enhancement based on factual findings that
were not submitted to a jury, although the error was harmless). Thus, we
are not persuaded by the State’s argument that “empirical data” in the
judicial record forces Blackwell to forfeit the right to have a jury determine
the same-occasion inquiry.

B. Kelly Factors Test

¶23 The State contends the superior court can “permissibly
calculate the numerical tally” of Blackwell’s historical prior felony
convictions to support a category three sentence based only on “objective
data collected from conclusive judicial records, without considering the
[Kelly] factors test.” See Kelly, 190 Ariz. at 534, ¶ 6 (listing factors relevant

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Opinion of the Court

for determining the same-occasion inquiry). The State therefore asks us to
apply only statutory construction to determine whether Arizona law allows
the same-occasion analysis to be resolved without that test.

¶24 In essence, the State requests that we disregard Kelly. Even if
we believed that departing from those factors would be appropriate, we are
bound by precedent. See State v. Smyers, 207 Ariz. 314, 318, ¶ 15 n.4 (2004)
(explaining that “[t]he courts of this state are bound by” the supreme court’s
decisions and have no “authority to modify or disregard” precedent).

¶25 We recognize that it may seem unreasonable to require a jury
to decide these questions even when the evidence may overwhelmingly
favor the State. But precedent requires a jury trial unless the only question
before the court is the “fact” of the defendant’s prior convictions. At the
guilt phase, the State has the burden to prove beyond a reasonable doubt
that the defendant committed the alleged crimes despite the certainty of the
evidence. Likewise, at the penalty phase, the State must prove beyond a
reasonable doubt any fact that increases a defendant’s exposure to
punishment, see Erlinger, 602 U.S. at 828, regardless of inefficiencies. Here,
a jury must consider the facts surrounding Blackwell’s prior crimes to
properly perform the same-occasion inquiry under Kelly.

C. Guilty Pleas

¶26 The State further contends that Blackwell’s prior guilty pleas
are concessions that his prior offenses occurred on different occasions. The
State essentially asks us to conclude that a guilty plea in an earlier judicial
proceeding waives a defendant’s constitutional rights in subsequent cases
for which the defendant may be tried, convicted, and sentenced. But the
State fails to cite meaningful authority supporting its contention and does
not address Porter’s analysis. Like this case, the defendant in Porter pled
guilty to two prior armed robberies, and this court concluded the superior
court erred by not allowing a jury to determine the same-occasion inquiry.
258 Ariz. at 592–93, ¶¶ 3, 10. A guilty plea in a prior proceeding is not a
concession that the convictions resulting from the guilty plea in an
unrelated subsequent case occurred on separate occasions.

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Opinion of the Court

CONCLUSION

¶27 Because the State has not shown the superior court erred in
setting a jury trial to determine whether the offenses underlying Blackwell’s
prior felony convictions were committed on the same occasion, we deny the
State’s petition for special action.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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