State v. Soliz

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0087-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 07-0390
BASILIO SOLIZ, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2006-112881-001 SE
)
) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Sherry K. Stephens, Judge

AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Mar. 10, 2009

VACATED IN PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Michael T. O’Toole, Assistant Attorney General
Julie A. Done, Assistant Attorney General
Attorneys for State of Arizona

SHARMILA ROY Laveen
Attorney for Basilio Soliz
________________________________________________________________

R Y A N, Justice

¶1 Article 2, Section 23 of the Arizona Constitution

requires that “[j]uries in criminal cases in which a sentence of

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. . . imprisonment for thirty years or more is authorized by law

shall consist of twelve persons.” In this case we consider

whether this provision is violated when a sentence of thirty

years or more is authorized by law for the crimes charged, the

case proceeds to verdict with a jury of less than twelve people

without objection, and the resulting sentence is less than

thirty years.

I

¶2 The State charged Basilio Soliz with possession of

dangerous drugs for sale. During a settlement conference, the

State offered to permit Soliz to plead guilty with a sentence of

between five and eight years in prison. The prosecutor said

that if Soliz opted for a trial the State would allege two

historical prior felony convictions at sentencing. In that

event, Soliz faced a maximum of thirty-five years in prison.

Soliz declined the offer.

¶3 When the case proceeded to trial, the court empanelled

only eight jurors and one alternate. Neither Soliz nor the

State objected. The jury found Soliz guilty of possession of

dangerous drugs for sale. At sentencing, the State declined to

prove Soliz’s prior convictions or any aggravating circumstance

and requested a presumptive sentence of ten years, which the

trial judge imposed.

¶4 Soliz appealed, arguing that he was deprived of the
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twelve-person jury required by Article 2, Section 23. The court

of appeals reversed. State v. Soliz, 1 CA-CR 07-0390, 2009 WL

597376, at *3 ¶ 11 (Ariz. App. Mar. 10, 2009) (mem. decision).

The court held that the failure to empanel a twelve-person jury

was “fundamental error” that required reversal absent evidence

in the record that the State “withdrew its allegations and thus

reduced Soliz’s exposure to less than thirty years.” Id. at *3

¶ 10.1

¶5 The State petitioned for review, arguing that because

no objection to the eight-person jury was raised at trial, our

most recent formulation of fundamental error review in State v.

Henderson required Soliz to prove that the error was fundamental

and that he had been prejudiced. 210 Ariz. 561, 567 ¶¶ 19-20,

115 P.3d 601, 607 (2005). We granted review to decide this

recurring issue of statewide importance. We exercise

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

Constitution and Arizona Revised Statutes (“A.R.S.”) § 13-4031

(2001).

II

A

¶6 As originally adopted, the Arizona Constitution

1
Soliz raised another claim which the court of appeals
summarily rejected. Id. at *1, n.1, ¶ 1. Soliz did not raise
that claim here.
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provided that the right to a jury trial “shall remain inviolate”

and that juries of less than twelve people could be employed

only “in courts not of record.” Ariz. Const. art. 2, § 23

(amended 1972). In Williams v. Florida, the Supreme Court held

that the Sixth Amendment did not require a twelve-person jury

when a defendant faced a life sentence. 399 U.S. 78, 102-03

(1970) (explaining that “[o]ur holding does no more than leave

these considerations to Congress and the States, unrestrained by

an interpretation of the Sixth Amendment that would forever

dictate the precise number that can constitute a jury”). In

1972, Arizona voters amended Article 2, Section 23 to require

juries of twelve only in “criminal cases in which a sentence of

death or imprisonment for thirty years or more is authorized by

law.” The amended provision stated that “[i]n all other cases,

the number of jurors, not less than six, and the number required

to render a verdict, shall be specified by law.”

¶7 In the same session in which it referred the amendment

of Article 2, Section 23 to the people, the legislature

conditionally passed a statute, now codified at A.R.S. § 21-102

(2002), that provided for eight-person juries in all cases but

those in which twelve jurors were mandated by the amended

provision. See Ariz. Const. art. 2, § 23 and historical note

4
(acknowledging conditional enactment of parallel legislation).2

The legislature thus reserved the twelve-person jury only for

the most serious offenses and measured seriousness by the

potential sentence upon conviction. Cf. Derendal v. Griffith,

209 Ariz. 416, 425 ¶ 37, 104 P.3d 147, 156 (2005) (holding that

sentence authorized by the legislature indicates the seriousness

of the offense in question).

B

¶8 When determining whether a sentence of thirty years or

more is authorized and thus a twelve-member jury is required

under Article 2, Section 23, courts take into account sentencing

enhancements, see State v. Prince, 142 Ariz. 256, 259, 689 P.2d

515, 518 (1984), and whether consecutive sentences can be

imposed for multiple offenses, see State v. Henley, 141 Ariz.

465, 468, 687 P.2d 1220, 1223 (1984). Here, the maximum prison

sentence for the offense for which Soliz was charged, possession

of dangerous drugs for sale, was fifteen years. However,

2
Section 21-102 provides:
A. A jury for trial of a criminal case in which a
sentence of death or imprisonment for thirty
years or more is authorized by law shall
consist of twelve persons, and the concurrence
of all shall be necessary to render a verdict.
B. A jury trial in any court of record of any
other criminal case shall consist of eight
persons, and the concurrence of all shall be
necessary to render a verdict.
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because of the State’s additional allegations, Soliz faced a

possible maximum sentence of thirty-five years. Therefore, had

Soliz requested a twelve-person jury, the trial court should

have granted that request.

III

A

¶9 In Henley, this Court held that, even in the absence

of an objection by the defendant, the failure to provide a

twelve-person jury if a sentence of more than thirty years would

have been possible is “fundamental” error because it violated a

constitutional provision. 141 Ariz. at 469, 687 P.2d at 1224.

Henley found reversal was required because the Court “[could]

[]not say beyond a reasonable doubt that the error did not

significantly contribute to the defendant’s conviction . . . .”

Id. The State urges us to revisit this holding in light of

Henderson. Soliz, on the other hand, urges us to recognize

Henley as a rule of structural error and thus presume prejudice.

See State v. Valverde, 220 Ariz. 582, 585 ¶ 10, 208 P.3d 233,

236 (2009) (“If error is structural, prejudice is presumed.”).

B

¶10 “Alleged trial court error in criminal cases may be

subject to one of three standards of review: structural error,

harmless error, or fundamental error.” Id. at 584 ¶ 9, 208 P.3d

at 235. Harmless error review applies when the defendant
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objects to the alleged error at trial. Id. at 585 ¶ 11, 208

P.3d at 236. Structural error, which “deprive[s] defendants of

basic protections without which a criminal trial cannot reliably

serve its function as a vehicle for determination of guilt or

innocence,” State v. Ring (Ring III), 204 Ariz. 534, 552 ¶ 45,

65 P.3d 915, 933 (2003) (internal quotation marks omitted),

requires no trial objection for reversal, Valverde, 220 Ariz. at

585 ¶ 10, 208 P.3d at 236.

¶11 In all other cases, when no objection is made at

trial, we review only for fundamental error. Id. at ¶ 12.

“Fundamental error is limited to ‘those rare cases that involve

error going to the foundation of the case, error that takes from

the defendant a right essential to his defense, and error of

such magnitude that the defendant could not possibly have

received a fair trial’” and places the burden on the defendant

to show that the error was fundamental and prejudicial. Id.

(quoting Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607).

¶12 The prerequisite to all three categories of error is

that error indeed occurred. Because we conclude that Soliz’s

trial to an eight-person jury removed any risk of his receiving

a sentence of thirty years or more, no constitutional error

occurred; therefore, the parties’ dispute over what category of

error should be applied is irrelevant.

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 C

¶13 In interpreting Article 2, Section 23, this Court has

long held that “a criminal defendant is not ‘at risk’ in terms

of maximum sentence until the case is submitted to the jury.”

Prince, 142 Ariz. at 259, 689 P.2d at 518. Thus, if by the time

the case is submitted, a sentence of thirty years or more is no

longer “authorized by law,” Article 2, Section 23 does not

mandate twelve jurors. Id.

¶14 In Prince, for example, the state represented that it

would pursue only a single prior conviction for sentencing

purposes, rather than the multiple convictions previously

alleged. Id. at 258, 689 P.2d at 517 (noting that the

prosecutor told the trial court that only one prior conviction

was alleged). This Court observed that the prosecutor’s

statement in effect withdrew the allegation of multiple prior

felony convictions, thus reducing the maximum sentence

authorized by law. Id. The Court concluded that “[b]y allowing

the trial to proceed before an eight-member jury, trial counsel

effectively foreclosed the ability of the prosecution to prove

that appellant had been convicted of two felonies, thereby

reducing the maximum possible sentence of imprisonment” to less

than thirty years. Id. at 260, 689 P.2d at 519; see also State

v. Cook, 122 Ariz. 539, 541, 596 P.2d 374, 376 (1979)

(permitting withdrawal of an allegation of a prior conviction in
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order to lower defendant’s maximum exposure); State v. Thompson,

139 Ariz. 133, 134, 677 P.2d 296, 297 (App. 1983) (no

prejudicial error when judge, over objection of defendant,

reduced charge so that any sentence would be less than thirty

years).

¶15 These cases are consistent with the Supreme Court’s

approach to the Sixth Amendment. For example, in Scott v.

Illinois, the Court held that the Sixth Amendment does not

require appointment of counsel when the “defendant is charged

with a statutory offense for which imprisonment upon conviction

is authorized but not actually imposed upon the defendant.” 440

U.S. 367, 369 (1979); see also Argersinger v. Hamlin, 407 U.S.

25, 40 (1972) (noting that sentencing judges will be deemed

aware of controlling right-to-counsel case law requiring counsel

in face of imprisonment in determining in what manner to permit

the case to proceed). Similarly, Justices Kennedy and Breyer,

in their concurrence in Lewis v. United States, 518 U.S. 322

(1996), concluded that a defendant did not have a right to a

jury trial when the trial judge in the case stated that she

would not impose a sentence of more than six months’

imprisonment. Id. at 338.

¶16 In the cited Arizona cases, the prosecutor or judge

explicitly acted to effectively reduce the defendant’s jeopardy

before the jury began deliberations. The appellate courts
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concluded that the constitutional protections applicable to the

largest theoretical sentence that the legislature approved for

that defendant no longer applied. We believe that what was

explicit in those situations is implicit here. By failing to

request a jury of twelve, the State effectively waived its

ability to obtain a sentence of thirty years or more.3 The trial

judge affirmed this by failing to empanel a jury of twelve. In

such a circumstance, as long as a lesser sentence may legally be

imposed for the crime alleged, we hold that a sentence of thirty

years or more is no longer permitted and that the twelve-person

guarantee of Article 2, Section 23 is not triggered.

D

¶17 We acknowledge that the approach we adopt departs from

Henley and subsequent cases that relied on it,4 particularly

3
Because the State concedes that there is no victim in this
case we need not determine whether the State’s decision to waive
a particular sentence implicates a crime victim’s right “[t]o be
heard at any proceeding involving . . . sentencing.” Ariz.
Const. art. 2, § 2.1(4); see also State v. Lamberton, 183 Ariz.
47, 49, 899 P.2d 939, 941 (1995) (recognizing that state statute
and court rule define criminal proceeding as “matters before the
trial court”).
4
See, e.g., State v. Smith, 197 Ariz. 333, 340 ¶ 21, 4 P.3d
388, 395 (App. 1999) (reversible error when defendant’s right to
twelve person jury waived by defense counsel’s stipulation with
state that sentences would run concurrently, resulting in a
sentence of less than thirty years); State v. Pope, 192 Ariz.
119, 121 ¶¶ 10, 12, 961 P.2d 1067, 1069 (App. 1998) (judge’s
assurance that sentences would run concurrently did not cure
error in failing to empanel a jury of twelve); State v. Luque, 171 Ariz. 198, 201, 829 P.2d 1244, 1247 (App. 1992) (acquittal
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State v. Pope, which held that a defendant could not be deprived

of a twelve-person jury by a judge’s assurance that a sentence

of less than thirty years would be imposed. 192 Ariz. 119, 121

¶ 10, 961 P.2d 1067, 1069 (App. 1998). Henley, however, created

anomalous results. First, because Henley adopted, in essence,

an automatic reversal rule, in many cases defense counsel had no

incentive to request a twelve-person jury. Instead, counsel

could decide to see what verdict an eight-person jury reached,

knowing that a retrial would always result if the client faced a

potential sentence of thirty years or more. Second, because the

state would usually be prohibited from seeking a sentence longer

than initially imposed after a defendant’s successful appeal,

see Blackledge v. Perry, 417 U.S. 21, 28-29 (1974); State v.

Noriega, 142 Ariz. 474, 483, 690 P.2d 775, 784 (1984), overruled

on other grounds by State v. Burge, 167 Ariz. 25, 28 n.7, 804

P.2d 754, 757 n.7 (1990), a remand after a reversal under the

Henley approach would be conducted before an eight-person jury.

Our holding here avoids such anomalous results while, at the

same time, protects defendants from lengthy imprisonment in

cases in which the jury is not comprised of twelve persons.

¶18 Accordingly, Soliz could not, as a matter of law,

on one or more charges so that maximum cumulative sentence could
not exceed thirty years does not cure error in failing to
empanel a twelve-member jury).
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receive a sentence of thirty years or more based on the State’s

additional allegations once a jury of less than twelve began

deliberations. Ariz. Const. art. 2, § 23; A.R.S. § 21-102(A).

As a result, no error occurred in this case.

IV

¶19 For the foregoing reasons we vacate the court of

appeals’ determination as to Article 2, Section 23 and affirm

the judgment of the superior court.

_____________________________________
Michael D. Ryan, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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