State v. Martinez

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-04-0435-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 03-0728
PABLO ARCINIEGA MARTINEZ, )
) Maricopa County
Appellant. ) Superior Court
) No. CR 2000-014823(B)
)
__________________________________) O P I N I O N

Appeal from the Superior Court of Maricopa County
No. CR 2000-014823(B)
The Honorable Eileen S. Willett, Judge

SENTENCES AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
209 Ariz. 280, 100 P.3d 30 (App. 2004)

AFFIRMED IN PART

________________________________________________________________

TERRY GODDARD, ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Michael T. O’Toole, Assistant Attorney General
Criminal Appeals Section
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Stephen Whelihan, Deputy Public Defender
Attorneys for Pablo Arciniega Martinez

OFFICE OF COURT APPOINTED COUNSEL Phoenix
By Mark Kennedy
Treasure VanDreumel
Attorneys for Amicus Curiae
Maricopa County Office of Contract Counsel
________________________________________________________________
M c G R E G O R, Chief Justice

¶1 We granted review in this case to resolve a single

issue: Does the Sixth Amendment guarantee of a right to jury

trial, as applied to Arizona’s general felony sentencing scheme,

require that a sentencing judge consider only those aggravating

factors found by a jury beyond a reasonable doubt in determining

whether to impose an aggravated sentence, or may the judge find

and consider additional aggravating factors once a single

aggravating factor has been found by the jury, is inherent in

the jury’s verdict, or has been admitted by the defendant? We

exercise jurisdiction pursuant to Article 6, Section 5.3 of the

Arizona Constitution and Rule 31.19 of the Arizona Rules of

Criminal Procedure.

I.

¶2 A jury convicted Pablo Arciniega Martinez of murder in

the first degree, burglary, and theft of a means of

transportation, all in connection with the brutal killing of

Martinez’ 69-year-old landlord. The State sought the death

penalty for the murder conviction, alleging two aggravators:

Martinez committed the murder for pecuniary gain, Ariz. Rev.

Stat. (A.R.S.) § 13-703.F.5 (Supp. 2000), and committed the

murder in an especially heinous, cruel or depraved manner, id. §

13-703.F.6. The jury found neither of these aggravators, and

2
the trial judge imposed a sentence of natural life for the

murder conviction.

¶3 In determining the sentences for the burglary and

theft convictions, the trial judge, acting pursuant to A.R.S. §

13-702.C (Supp. 2000), found by a preponderance of the evidence

the following aggravating factors: (1) the presence of an

accomplice; (2) the use of a knife as a weapon; (3) the severe

injuries and death of the victim; (4) the emotional and physical

pain suffered by the victim; (5) the emotional and financial

harm to the victim’s family; (6) the brutal nature of the crime;

(7) pecuniary gain; and (8) the victim’s age. The trial judge

then imposed consecutive aggravated sentences of seven years

each for the burglary and theft convictions.

¶4 Martinez timely appealed both his convictions and the

imposition of aggravated sentences.1 In a supplemental brief to

the court of appeals, Martinez argued for the first time that

his aggravated sentences violate the United States Supreme

Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531 (2004), because the trial court improperly considered

aggravating factors not found by the jury. Because Martinez

failed to raise this issue at trial, the court of appeals

1
The court of appeals affirmed Martinez’ convictions in a
separate, unpublished memorandum decision. State v. Martinez, 1
CA-CR 03-0728 (Ariz. App. Nov. 4, 2004) (mem. decision).
Martinez did not seek review of that decision.

3
concluded that he had waived the claim.2 Nevertheless, the court

reviewed the sentencing procedure for fundamental error. State

v. Martinez, 209 Ariz. 280, 283 ¶ 9, 100 P.3d 30, 33 (App.

2004). Finding no fundamental error, the court affirmed

Martinez’ sentences, holding that they comport with the Sixth

Amendment as interpreted in Blakely. Id. at 281-82 ¶ 1, 100

P.3d at 31-32.

¶5 The court of appeals held that if a jury finds, or a

defendant admits, at least one aggravating factor, the defendant

becomes eligible to receive an aggravated sentence under A.R.S.

§ 13-702, and the trial judge may consider additional facts not

found by the jury in determining the actual sentence to impose.

Id. at 284 ¶ 16, 100 P.3d at 34. “[A] judge’s imposition of an

aggravated sentence that falls within the range authorized by a

jury’s verdict comports with Blakely; a jury need not find every

aggravator upon which a sentencing judge relies.” Id. at 281-82

¶ 1, 100 P.3d at 31-32. In Martinez’ case, the court concluded

that the finding that Martinez caused the death of the victim,

see A.R.S. § 13-702.C.1, was implicit in the jury’s guilty

2
Defendants who fail to object to error at trial do not,
strictly speaking, “waive” their claims. Rather, defendants who
fail to object to an error below forfeit the right to obtain
appellate relief unless they prove that fundamental error
occurred. See United States v. Olano, 507 U.S. 725, 731 (1993);
State v. Henderson, ___ Ariz. ___, ___ ¶ 19, ___ P.3d ___, ___
(2005).

4
verdict on the first degree murder charge. Once the jury found

this aggravator, Martinez became eligible for an aggravated

sentence, and the trial judge could then consider other

aggravating factors in determining what sentence to impose

within the statutory range for an aggravated sentence.

Martinez, 209 Ariz. at 284 ¶ 16, 100 P.3d at 34.

¶6 Martinez petitioned for review, asking this Court to

consider whether the aggravated sentences for burglary and theft

comply with Blakely.3 We granted review because this is an issue

of first impression and a question of statewide importance. In

addition, we granted review to resolve a split in authority

within the court of appeals. Compare Martinez, 209 Ariz. at

281-82 ¶ 1, 100 P.3d at 31-32, and State v. Estrada, 210 Ariz.

111, 112 ¶ 1, 108 P.3d 261, 262 (App. 2005), with State v.

Munninger, 209 Ariz. 473, 480 ¶ 21, 104 P.3d 204, 211 (App.

2005), and State v. Alire, 209 Ariz. 517, 520-21 ¶ 14, 105 P.3d

163, 166-67 (App. 2005).

II.

¶7 The Sixth Amendment to the United States Constitution

guarantees a criminal defendant the right to a trial by jury.

3
The court of appeals also held that the trial court’s
consideration of aggravating factors not found by a jury in
imposing a natural life sentence for the murder conviction did
not violate Blakely. Martinez, 209 Ariz. at 283 ¶ 12, 100 P.3d
at 33; see also State v. Fell (Sanders), ___ Ariz. ___, ___

5
Every criminal defendant has a right to “demand that a jury find

him guilty of all the elements of the crime with which he is

charged.” United States v. Booker, 125 S. Ct. 738, 748 (2005)

(Stevens, J., for the Court (constitutional majority)) (internal

quotations omitted). This right to jury trial is not confined

to the determination of guilt or innocence, but continues

throughout the sentencing process. Thus, the Sixth Amendment

guarantees to a defendant the right to demand that a jury find

the existence of any specific fact that the law makes essential

to his punishment. Id. at 749 (citing Blakely, 542 U.S. at ___,

124 S. Ct. at 2536). It is equally true, however, that “judges

in this country have long exercised discretion . . . in imposing

sentence within statutory limits in the individual case.”

Apprendi v. New Jersey, 530 U.S. 466, 481 (2000).

¶8 In a series of decisions interpreting modern criminal

statutes and sentencing procedures in light of the Sixth

Amendment, the United States Supreme Court has made clear that

the Sixth Amendment jury trial requirement does not entirely

remove from the purview of judges any consideration of

aggravating factors. The Court has repeatedly distinguished

between those facts that are legally essential to increase the

punishment for a crime, and must therefore be found by a jury,

___________________
¶ 19, ___ P.3d ___, ___ (2005). Martinez does not challenge
that holding.

6
and those facts that a sentencing judge may, in his or her

discretion, consider in sentencing a defendant within the range

prescribed by statute and authorized by the jury’s verdict. See

Jones v. United States, 526 U.S. 227, 248 (1999); Apprendi, 530

U.S. at 494; Harris v. United States, 536 U.S. 545, 558 (2002);

Ring v. Arizona, 536 U.S. 584, 604-05 (2002) (Ring II); Blakely,

542 U.S. at ___, 124 S. Ct. at 2537; Booker, 125 S. Ct. at 750.

A.

¶9 The Supreme Court first addressed the application of

the Sixth Amendment jury trial requirement to the determination

of aggravating factors in Jones. There, the Court expressed

concern that “diminishment of the jury’s significance by

removing control over facts determining a statutory sentencing

range would resonate with the claims of earlier controversies,

to raise a genuine Sixth Amendment issue not yet settled.”

Jones, 526 U.S. at 248. The Court noted that prior cases

suggested the following constitutional principle: “[A]ny fact

(other than prior conviction) that increases the maximum penalty

for a crime must be charged in an indictment, submitted to a

jury, and proven beyond a reasonable doubt.” Id. at 243 n.6.

Prior case law did not suggest, however, that the Sixth

Amendment requires that a jury find every fact related to a

sentencing decision; rather, the case law indicated that

removing from the jury the consideration of facts that increase

7
a sentencing range may run afoul of the Sixth Amendment. Id. at

248. Jones did not decide whether the Sixth Amendment requires

juries to decide facts related to sentencing, however, because

the Court ultimately interpreted the statute before it so as to

avoid this constitutional issue. Id. at 251-52.

¶10 One year later, in Apprendi, the Court answered the

question left open in Jones, by holding 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.” 530

U.S. at 490. Once again, the Court explained that “nothing in

[the history of the right to jury trial] suggests that it is

impermissible for judges to exercise discretion—taking into

consideration various factors relating both to offense and

offender—in imposing a judgment within the range prescribed by

statute.” Id. at 481. Importantly, the Apprendi decision also

noted that labeling a specific fact as an “element” or a

“sentencing factor” is irrelevant to the Sixth Amendment

analysis: “[T]he relevant inquiry is one not of form, but of

effect—does the required finding expose the defendant to a

greater punishment than that authorized by the jury’s guilty

verdict?” Id. at 494. If so, that fact is functionally an

“element” for purposes of the Sixth Amendment jury right. A

“sentencing factor,” by contrast, is “a circumstance, which may

8
be either aggravating or mitigating in character, that supports

a specific sentence within the range authorized by the jury’s

finding that the defendant is guilty of a particular offense.”

Id. at 494 n.19. Thus, Apprendi established that only those

facts that expose a defendant to a penalty greater than the

prescribed statutory maximum applicable by virtue of a guilty

verdict are facts “legally essential” to the punishment.

¶11 The Court reinforced this conclusion two years later

in Harris. In a plurality opinion authored by Justice Kennedy,

the Court stated that while a jury must find those facts that

establish the outer limits of a sentence, facts that limit a

judge’s sentencing discretion within the prescribed statutory

range, such as those that compel imposition of a mandatory

minimum sentence, may be found by judges rather than juries.

Harris, 536 U.S. at 567. Thus, “[j]udicial factfinding in the

course of selecting a sentence within the authorized range does

not implicate the indictment, jury-trial, and reasonable-doubt

components of the Fifth and Sixth Amendments.” Id. at 558.

¶12 In Blakely, the Supreme Court applied these principles

to a Washington state sentencing scheme and further clarified

the import of the term “statutory maximum.” “Our precedents

make clear . . . 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

9
by the defendant.” Blakely, 542 U.S. at ___, 124 S. Ct. at

2537. In so holding, the Court continued to proclaim that the

Sixth Amendment does not prohibit all judicial factfinding:

Of course indeterminate [sentencing] schemes involve
judicial factfinding, in that a judge (like a parole
board) may implicitly rule on those facts he deems
important to the exercise of his sentencing
discretion. But the facts do not pertain to whether
the defendant has a legal right to a lesser sentence—
and that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is
concerned.

Id. at ___, 124 S. Ct. at 2540.

¶13 Recently, the Supreme Court applied its Sixth

Amendment jurisprudence to the Federal Sentencing Guidelines

(the Guidelines). Booker, 125 S. Ct. 738. In Booker, the

defendant was charged with possession with intent to distribute

at least fifty grams of crack cocaine in violation of 21 U.S.C.

§ 841(a)(1) (1999). 125 S. Ct. at 746 (Stevens, J., for the

Court (constitutional majority)). The jury heard evidence that

he possessed ninety-two and one-half grams and found him guilty.

That determination established a minimum sentence of 120 months

in prison and a maximum sentence of life in prison. Taking into

account Booker’s criminal history and the quantity of drugs

found by the jury, the Guidelines directed the district court

judge to select a sentence of not less than 210 nor more than

262 months in prison. After holding a post-trial sentencing

proceeding, the sentencing judge concluded by a preponderance of

10
the evidence that Booker had possessed an additional 566 grams

of crack and that he was guilty of obstructing justice. Under

the Guidelines, those findings directed the judge to impose a

sentence between 360 months and life imprisonment; the judge

imposed the minimum sentence permitted by the Guidelines. Thus,

rather than the sentence of 262 months that the judge could have

imposed solely on the basis of the facts proved to the jury

beyond a reasonable doubt, Booker received a 360 month sentence,

based in part upon the additional aggravating facts found by the

judge by a preponderance of the evidence. Id.

¶14 The Court, applying Apprendi and its progeny, held

that mandatory Guidelines would violate the Sixth Amendment.

Once again, the Court emphasized that its decision would not

limit the discretion of a judge to determine a defendant’s

sentence within a prescribed range permitted by a jury verdict:

If the Guidelines as currently written could be read
as merely advisory provisions that recommended, rather
than required, the selection of particular sentences
in response to differing sets of facts, their use
would not implicate the Sixth Amendment. We have
never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a
statutory range. . . . For when a trial judge
exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to
a jury determination of the facts that the judge deems
relevant.

Id. at 750 (emphasis added).

11
¶15 In a separate part of the opinion, authored by Justice

Breyer, the Court struck only those provisions of the Guidelines

that made them mandatory, thus permitting the Guidelines to

remain in place as advisory. Id. at 756-57 (Breyer, J., for the

Court (remedial majority)). Justice Stevens dissented from the

Breyer majority’s remedial holding because he concluded that the

Guidelines could continue to be applied constitutionally in the

vast majority of cases. Id. at 771-72 (Stevens, J., dissenting

in part). This is so, Justice Stevens asserted, because “the

Guidelines as written possess the virtue of combining a

mandatory determination of sentencing ranges and discretionary

decisions within those ranges, . . . allow[ing] ample latitude

for judicial factfinding that does not even arguably raise any

Sixth Amendment issue.” Id. at 772. Thus, Justice Stevens’

dissent also reinforces the conclusion that the Sixth Amendment

permits judicial discretion in imposing a sentence within a

statutory range authorized by the jury’s verdict.

¶16 The Supreme Court’s recent Sixth Amendment

jurisprudence, from Jones through Booker, leads inexorably to

the conclusion that the Sixth Amendment does not remove from a

trial judge the traditional sentencing discretion afforded the

judge, so long as the judge exercises that discretion within a

sentencing range established by the fact of a prior conviction,

facts found by a jury, or facts admitted by a defendant. Once a

12
jury finds the facts legally essential to expose a defendant to

a statutory sentencing range, the sentencing judge may consider

additional factors in determining what sentence to impose, so

long as the sentence falls within the established range.

B.

¶17 We recently recognized that Blakely implicates

Arizona’s general felony sentencing scheme as well. State v.

Brown (McMullen), 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15, 18

(2004). In Brown (McMullen), we held that, under Arizona law,

the statutory maximum sentence for Apprendi purposes in a case

in which no aggravating factors have been proved to a jury

beyond a reasonable doubt is the presumptive sentence

established in A.R.S. § 13-701.C.1 (2004). Id. Because of the

unique procedural posture of the Brown (McMullen) case, however,

we declined to address “the full implications of Apprendi and

its progeny for the Arizona sentencing scheme.” Id. at ¶ 15.

Instead, we opted to later address additional questions “in the

context of a case in which [a] relevant issue is squarely

presented, properly briefed, and addressed by the courts below.”

Id. at 203-04 ¶ 15, 99 P.3d at 18-19. The present case provides

an opportunity to address one such question.

III.

¶18 Under Blakley, a jury must find beyond a reasonable

doubt any fact that is “legally essential to the punishment.”

13
542 U.S. at ___, 124 S. Ct. at 2543. This case requires us to

determine what facts are “legally essential” for an aggravated

sentence to be imposed upon a defendant pursuant to A.R.S. § 13-

702.

¶19 In Arizona, a defendant convicted of a felony faces a

presumptive sentence pursuant to A.R.S. § 13-701 (Supp. 2000).

Under the statutes in force at the time of Martinez’ sentencing,

a judge could increase or decrease a defendant’s presumptive

sentence within a range established by A.R.S. § 13-702.A only if

“the circumstances alleged to be in aggravation or mitigation of

the crime are found to be true by the trial judge.” A.R.S. §

13-702.B. After listing the aggravating and mitigating factors

that a court must consider, the statute further provides:

In determining what sentence to impose, the court
shall take into account the amount of aggravating
circumstances and whether the amount of mitigating
circumstances is sufficiently substantial to call for
the lesser term. If the court finds aggravating
circumstances and does not find any mitigating
circumstances, the court shall impose an aggravated
sentence.

Id. § 13-702.D.

¶20 Martinez interprets this statutory scheme to mean that

a defendant is not eligible for an aggravated sentence until all

aggravating factors that will be relied upon in sentencing have

been found beyond a reasonable doubt by the jury. This is so,

avers Martinez, because the language in section 13-702.D

14
requires a sentencing judge to balance all the aggravators and

mitigators in determining what sentence to impose. According to

Martinez, because the maximum sentence he could have received

depended upon the quantity and quality of the aggravators, each

aggravator relied upon by a judge in sentencing is a fact that

increases the penalty, and all such facts are legally essential

to his punishment. Therefore, Martinez contends, each

aggravating factor must be found by a jury beyond a reasonable

doubt.

¶21 Martinez’ interpretation of the statutes conflates the

concept of the maximum potential sentence to which a defendant

is exposed with the actual sentence imposed. The Supreme Court

has made clear that only those factors that increase the maximum

potential sentence to which a defendant is exposed are “legally

essential” for Sixth Amendment purposes. Under Arizona’s

sentencing scheme, once a jury implicitly or explicitly finds

one aggravating factor, a defendant is exposed to a sentencing

range that extends to the maximum punishment available under

section 13-702. See Brown (McMullen), 209 Ariz. at 202 ¶ 11, 99

P.3d at 17 (“Section 13-702(A) allows an increase of this

presumptive sentence to a maximum [sentence] . . . upon a

finding of one or more of the aggravating circumstances set

forth in § 13-702(C).”) (emphasis added). Under those

circumstances, a trial judge has discretion to impose any

15
sentence within the statutory sentencing range. Thus, a jury

finding of a single aggravating factor establishes the facts

legally essential to expose the defendant to the maximum

sentence prescribed in section 13-702.

IV.

¶22 We recognize that we rejected a similar argument

proffered by the State in State v. Ring, 204 Ariz. 534, 561 ¶

87, 65 P.3d 915, 942 (2003) (Ring III). There, the State argued

that if it established any single aggravating factor under

A.R.S. § 13-703 in conformity with the Sixth Amendment, the

defendant became “death eligible,” and a trial judge could then

find additional aggravating factors. In rejecting the State’s

argument, we stated:

A narrow reading of Ring II may permit a judge to
decide the existence of additional aggravating factors
in the circumstances described by the State. As the
State contends, once the government establishes any
aggravating factor, a defendant becomes “death
eligible” in the strict sense, and establishing
additional aggravating factors does not render a
defendant “more” death eligible. In our view,
however, Ring II should not be read that narrowly.
Although the Court there considered a death sentence
based upon the existence of a single aggravating
factor, we conclude that Ring II requires a jury to
consider all aggravating factors urged by the state
and not either exempt from Ring II, implicit in the
jury’s verdict, or otherwise established beyond a
reasonable doubt.

Id. at 561-62 ¶ 88, 65 P.3d at 942-43.

16
¶23 We regard our opinion in Ring III as distinguishable

for two reasons. First, in Ring III, we sought to interpret the

Supreme Court’s decision in Ring II and concluded that the Court

intended to require that a jury decide all aggravating factors.

Since our decision in Ring III, we have gained the benefit of

additional United States Supreme Court opinions, and both

Blakely and Booker clarify that, at least in the non-capital

context, a jury need find only that fact or those facts that are

“legally essential” to expose a defendant to a particular

sentencing range.

¶24 Second, in Ring III, we considered the statutory

scheme peculiar to capital sentencing in Arizona, rejecting the

State’s “single aggravator” argument in part because

the procedures urged by the State do not reflect any
sentencing procedure ever adopted by our legislature.
In both the superseded and current capital sentencing
schemes, the legislature assigned to the same fact-
finder responsibility for considering both aggravating
and mitigating factors, as well as for determining
whether the mitigating factors, when compared with the
aggravators, call for leniency. Neither a judge,
under the superseded statutes, nor the jury, under the
new statutes, can impose the death penalty unless that
entity concludes that the mitigating factors are not
sufficiently substantial to call for leniency. The
process involved in determining whether mitigating
factors prohibit imposing the death penalty plays an
important part in Arizona's capital sentencing scheme.

204 Ariz. at 562 ¶ 89, 65 P.3d at 943 (citations omitted). In

response to Ring II, the Arizona Legislature adopted a revised

capital sentencing scheme designed to conform Arizona law to the

17
Ring II mandate. See id. at 545 ¶ 13, 65 P.3d at 926. The

legislature chose not to split between fact-finders the duties

of finding aggravating and mitigating factors and balancing

those factors to determine whether the death sentence is

appropriate. Instead, the legislature left these duties in the

hands of only one fact-finder in both the superseded and the

revised statutes.

¶25 Arizona’s non-capital sentencing scheme stands in

contrast to the capital sentencing scheme discussed in Ring III.

As the court of appeals pointed out, “Arizona’s non-capital

felony sentencing provisions have accommodated a scheme where

some factual determinations which increase a defendant’s

sentence are found by the jury while others are found by the

judge, with the ultimate sentencing decision made by the

latter.” Martinez, 209 Ariz. at 285 ¶ 19, 100 P.3d at 35. As

of the time of Martinez’ sentencing, the Arizona Legislature had

not revised A.R.S. § 13-702 in light of the Supreme Court’s

Sixth Amendment holdings.4 Thus, unlike the capital sentencing

4
Following oral argument in this case, the legislature
amended A.R.S. §§ 13-702 and 13-702.01 to conform them to the
Supreme Court’s recent Sixth Amendment jurisprudence. See 2005
Ariz. Sess. Laws, ch. 20, §§ 1-2. The amended statutes are
consistent with the conclusion we reach today. The statutes
bifurcate responsibility for finding aggravating factors between
the jury, which must find at least one aggravating factor beyond
a reasonable doubt, and the judge, who may then find additional
aggravating factors by a preponderance of the evidence. See id.
§ 1. (“If the trier of fact finds at least one aggravating

18
provisions reviewed in Ring III, Arizona’s non-capital

sentencing statutes provide no indication that the legislature

intended to vest responsibility for finding all aggravating

facts in a single factfinder.5

V.

¶26 The Sixth Amendment requires that a jury find beyond a

reasonable doubt, or a defendant admit, any fact (other than a

prior conviction) necessary to establish the range within which

a judge may sentence the defendant. If, however, additional

facts are relevant merely to the exercise of a judge’s

discretion in determining the specific sentence to impose on a

defendant within a given statutory sentencing range, the Sixth

Amendment permits the judge to find those facts by a

preponderance of the evidence. Under A.R.S. § 13-702, the

existence of a single aggravating factor exposes a defendant to

___________________
circumstance, the trial court may find by a preponderance of the
evidence additional aggravating circumstances.”).
5
We also note that determining aggravating factors in a
capital case serves a somewhat different purpose than that
served by determining aggravating factors in non-capital cases.
The Eighth Amendment to the United States Constitution requires
that aggravating factors in capital cases must “genuinely narrow
the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence on
the defendant compared to others found guilty of murder.” Zant
v. Stephens, 462 U.S. 862, 877 (1983). In non-capital
sentencing, however, aggravating factors serve only to establish
the range of sentence and do not involve Eighth Amendment
issues.

19
an aggravated sentence. Therefore, once 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.

¶27 In this case, the sentencing judge relied upon eight

aggravating factors in imposing aggravated sentences for

Martinez’ burglary and theft convictions. The jury implicitly

found one of those aggravators, the severe injuries and death of

the victim, when it convicted Martinez of first degree murder.6

Because at least one aggravating factor was implicit in the

jury’s verdict, the verdict exposed Martinez to a maximum

sentence of seven years imprisonment each for the burglary and

theft convictions. See A.R.S. § 13-702.A. The trial court’s

consideration of additional aggravating factors in imposing a

sentence within this range did not violate Blakely.

VI.

¶28 For the foregoing reasons, we affirm that portion of

the court of appeals opinion upholding the trial court’s

6
A.R.S. § 13-702.C.1 includes, as an aggravating factor, the
“[i]nfliction or threatened infliction of serious physical
injury.” A.R.S. § 13-105.34 (2000) defines “serious physical
injury” as including “physical injury which creates a reasonable
risk of death.” No one in this case argues that injury that
actually results in death falls outside this definition.

20
judgment imposing aggravated sentences for Martinez’ theft and

burglary convictions.

__________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
Charles E. Jones, Justice (Retired)

21