State v. Schmidt

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0308-PR
Respondent, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0935 PRPC
MICHAEL DIMETRIUS SCHMIDT, )
) Maricopa County
Petitioner. ) Superior Court
) No. CR1992-003695
)
)
) O P I N I O N
__________________________________)

Petition for Review from the Superior Court in Maricopa County
The Honorable Carey Snyder Hyatt, Judge

VACATED AND REMANDED
________________________________________________________________

Order of the Court of Appeals, Division One
Filed Sept. 26, 2008
________________________________________________________________

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Elizabeth B. Ortiz, Deputy County Attorney
Attorneys for the State of Arizona

LAW OFFICES OF MICHAEL P. DENEA, PLC Phoenix
By Michael P. Denea
Attorney for Michael Dimetrius Schmidt
________________________________________________________________

B A L E S, Justice

¶1 Under Arizona law, those convicted of a crime are

subject to longer sentences when certain aggravating factors are

proved. We hold that a court may not, consistent with due

process, increase a defendant’s maximum potential sentence based
solely on a so-called “catch-all” aggravator, defined as “any

other factors which the court may deem appropriate to the ends

of justice.” Ariz. Rev. Stat. (“A.R.S.”) § 13-702(D)(13) (Supp.

1991).1

I.

¶2 In April 1993, Michael Dimetrius Schmidt entered into

an agreement under which he pled guilty to two of eight offenses

charged in an indictment – count 4, sexual abuse and count 5,

attempted sexual abuse. Each was charged as a dangerous crime

against children. Consistent with the plea agreement, the court

sentenced Schmidt to the presumptive term of ten years’

imprisonment on count 4 and lifetime probation on count 5 and

dismissed the other counts. After serving his sentence on count

4, Schmidt was released on probation. During the next two

years, the probation department filed three petitions to revoke

Schmidt’s probation. The trial court twice reinstated probation

conditioned on Schmidt serving six-month jail terms.

¶3 After a third petition was filed, the trial court

revoked probation on count 5. Instead of the presumptive

sentence of ten years, the court imposed an aggravated sentence

1
The legislature has amended and moved the catch-all
provision since Schmidt committed his offenses. It is currently
located at A.R.S. § 13-701(D)(24) (Supp. 2008), and covers
“[a]ny other factor that the state alleges is relevant to the
defendant’s character or background or to the nature or
circumstances of the crime.”
2
of 12.5 years. The court stated that it was aggravating the

sentence under the catch-all provision based on Schmidt’s

conviction on count 4. Schmidt petitioned for post-conviction

relief, which the trial court denied. The court of appeals

denied review.

¶4 We granted review to address the recurring issue of

the use of the catch-all aggravator as the sole aggravating

factor to increase a defendant’s maximum potential sentence. We

have jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution, A.R.S. section 13-4239(H) (2001), and Arizona Rule

of Criminal Procedure 32.9(g).

II.

¶5 The Due Process Clause of the Fourteenth Amendment

mandates that criminal statutes not be vague. See Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972). Two principles

underlie this key tenet. First, citizens are entitled to fair

notice of the acts the government deems worthy of punishment so

they may conform their conduct to the law. See Rose v. Locke,

423 U.S. 48, 50 (1975). Second, the law must be sufficiently

definite to avoid arbitrary enforcement. See Grayned, 408 U.S.

at 108-09 (“A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad

hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application.”). The second
3
principle is the more important of the two. See Kolender v.

Lawson, 461 U.S. 352, 357-58 (1983); see also United States v.

Reese, 92 U.S. 214, 221 (1875) (“It would certainly be dangerous

if the legislature could set a net large enough to catch all

possible offenders, and leave it to the courts to step inside

and say who could be rightfully detained, and who should be set

at large.”). This is because “[t]he touchstone of due process

is protection of the individual against arbitrary action of

government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974); see

also County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)

(“Since the time of our early explanations of due process, we

have understood the core of the concept to be protection against

arbitrary action[.]”).

III.

¶6 In Apprendi v. New Jersey, the United States Supreme

Court stated that “[s]ince [In re] Winship, [397 U.S. 358

(1970),] we have made clear beyond peradventure that Winship’s

due process and associated jury protections extend, to some

degree, ‘to determinations that [go] not to a defendant’s guilt

or innocence, but simply to the length of his sentence.’” 530

U.S. 466, 484 (2000) (quoting Almendarez-Torrez v. United

States, 523 U.S. 224, 251 (1998) (Scalia, J., dissenting)). The

Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the
4
prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Id. at 490. The thrust of

the Apprendi line of cases is that any fact that “the law makes

essential to the punishment” is the “functional equivalent of an

element of a greater offense,” and is to be treated accordingly.

See Blakely v. Washington, 542 U.S. 296, 303-04 (2004); Ring v.

Arizona, 536 U.S. 584, 609 (2002).

¶7 This Court has recognized that under Arizona law, “the

statutory maximum sentence for Apprendi purposes in a case in

which no aggravating factors have been proved . . . is the

presumptive sentence established” by statute. State v.

Martinez, 210 Ariz. 578, 583 ¶ 17, 115 P.3d 618, 623 (2005). An

aggravating factor that subjects a defendant to an increased

statutory maximum penalty is thus the functional equivalent of

an element of an aggravated offense. Because protection against

arbitrary government action is the quintessence of due process,

the rationale of Apprendi and subsequent cases requires that we

assess the vagueness of the catch-all aggravator in Arizona’s

sentencing scheme when it alone is used to increase a

defendant’s maximum potential sentence.

IV.

¶8 When Schmidt committed his offenses, the relevant

statute provided that a defendant’s sentence could be increased

based on twelve specific aggravating factors. A.R.S. § 13-
5
702(D)(1)-(12) (Supp. 1991). For example, the statute

identified the infliction of serious physical injury, id. §

(D)(1), the use of a weapon, id. § (D)(2), and the presence of

an accomplice, id. § (D)(4), as potential aggravating factors.

In addition to the twelve listed aggravating factors, the

statute included a catch-all: “Any other factors which the court

may deem appropriate to the ends of justice.” Id. § (D)(13).

¶9 The catch-all provision is patently vague. As Justice

Hurwitz observed in his concurrence in State v. Price, “[i]t is

as if the criminal code had one punishment for theft, and

another for aggravated theft, the former consisting of theft

simpliciter and the latter consisting of the elements of the

theft plus ‘anything else the court or the state may someday

later find relevant.’” 217 Ariz. 182, 187 ¶ 27, 171 P.3d 1223,

1228 (2007) (Hurwitz, J., concurring); see also Sattazhan v.

Pennsylvania, 537 U.S. 101, 112 (2003) (plurality opinion)

(noting that “‘murder plus one or more aggravating

circumstances’ is a separate offense from ‘murder’

simpliciter”).

¶10 Use of the catch-all as the sole factor to increase a

defendant’s statutory maximum sentence violates due process

because it gives the sentencing court virtually unlimited post

hoc discretion to determine whether the defendant’s prior

conduct is the functional equivalent of an element of the
6
aggravated offense. Cf. Kolender, 461 U.S. at 358 (declaring

unconstitutional statute that provided “virtually complete

discretion in the hands of the police” to assess whether statute

had been violated).

¶11 There is, however, an important difference between a

trial court’s using a catch-all aggravator to increase a

defendant’s maximum potential sentence versus the court’s

considering factors embraced by a catch-all in imposing a

sentence within a properly determined maximum range. When one

or more clearly enumerated aggravators are found consistent with

Apprendi, and they allow imposition of an aggravated sentence

under the relevant statutory scheme, the “elements” of the

aggravated offense will have been identified with sufficient

clarity to satisfy due process. Subsequent reliance on other

factors embraced by a catch-all provision to justify a sentence

up to the statutory maximum comports with the traditional

discretionary role afforded judges in sentencing. See Price,

217 Ariz. at 188 n.5 ¶ 29, 171 P.3d at 1229 n.5 (Hurwitz, J.,

concurring) (“Because the defendant is exposed to the greater

sentence because of the enumerated aggravator, the ‘catch-all’

in such a circumstance is simply a sentencing factor relevant to

the judge’s discretion in deciding what sentence to impose

within the constitutionally authorized range, not a functional

element of the ‘aggravated crime.’”); Martinez, 210 Ariz. at 583
7
¶ 16, 115 P.3d at 623; see also Apprendi, 530 U.S. at 481 (“We

should be clear that nothing in this history 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.”).

V.

¶12 Because the trial court increased the length of

Schmidt’s sentence beyond the presumptive based solely on the

catch-all aggravator, the sentence is invalid. We therefore

vacate the sentence and remand this case for resentencing in

accordance with this opinion.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice
8