State of Arizona v. Austin James Bonfiglio

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-12-0018-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 10-0075
AUSTIN JAMES BONFIGLIO, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2009-122982-001
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Lisa Ann VandenBerg, Commissioner

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
228 Ariz. 349, 266 P.3d 375 (App. 2011)

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Angela Corinne Kebric, Assistant Attorney General
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Tennie B. Martin, Deputy Public Defender
Mikel P. Steinfeld, Deputy Public Defender
Attorneys for Austin James Bonfiglio
________________________________________________________________

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B R U T I N E L, Justice

¶1 A court must set forth on the record at sentencing one

of the specific statutory aggravating factors enumerated in

A.R.S. § 13-701(D)(1)–(23) before it may impose an aggravated

sentence. We hold that once the court identifies one of these

factors, it may rely on the “catch-all” aggravator provision in

§ 13-701(D)(24) to increase the sentence even if the court does

not expressly use the specific statutory aggravator as a basis

for increasing the sentence.

I.

¶2 On November 25, 2009, a jury found Austin James

Bonfiglio guilty of aggravated assault, a class 3 dangerous

felony. As an aggravating factor, the jury found that Bonfiglio

“had the ability to walk away from the confrontation,” but had

not done so.

¶3 Before sentencing, Bonfiglio admitted two prior felony

convictions, a specific statutory aggravating factor under § 13-

701(D)(11). At sentencing, the trial court acknowledged

Bonfiglio’s prior convictions and also noted that he was on

probation when the offense occurred. The court recognized on

the record that Bonfiglio’s prior convictions subjected him to

an enhanced sentence range:

[A]t this point, you have already admitted at a trial
on the priors, two prior felony convictions. The
court is cognizant of the record previously made on

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 that date[;] given that, the court will sentence you
under a range provided by the statute for two
historical priors for a class three felony under the
non[-]dangerous categories, [§] 13-702.

The trial court then imposed an aggravated sentence,

stating:

With that, I am cognizant of the facts [sic] that
because you were on probation at the time of the
offense which was also resolved at trial on the
priors, that the minimum you can receive is the
presumptive which is a [sic] 11.25 years.

However, as I stated, the court has considered the one
aggravating factor the jury found. I have considered
all of the information that has been presented and
this court does find it appropriate to order that you
serve a term of 13 years, a slightly aggravated
term[,] in the Department of Corrections.

¶4 Bonfiglio appealed, arguing that the trial court’s use

of the “catch-all” aggravating factor found by the jury was

improper. State v. Bonfiglio, 228 Ariz. 349, 352 ¶ 9, 266 P.3d

375, 378 (App. 2011). The court of appeals affirmed Bonfiglio’s

conviction and sentence. Id. at 355 ¶ 24, 266 P.3d at 381.

¶5 The court recognized that the jury-found aggravator was

a “catch-all” aggravator because it was not specifically

statutorily enumerated, id. at 354 ¶ 19, 266 P.3d at 380, and as

such, could not serve as the sole basis for imposing an

aggravated sentence, id. (citing State v. Schmidt, 220 Ariz.

563, 566 ¶ 10, 208 P.3d 214, 217 (2009)). The court noted,

however, that the trial court was required to consider the prior

felony convictions as an aggravating circumstance and to

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sentence Bonfiglio under the range for a repetitive offender.

Id. at 354–55 ¶¶ 22, 24, 266 P.3d at 380–81 (citing A.R.S. § 13-

701(D)). The court concluded that the prior convictions

“exposed [Bonfiglio] to the maximum sentence authorized by the

applicable sentencing statute for repetitive offenders, whether

or not the [trial] court expressly stated that it had used the

criminal history to aggravate the sentence.” Id. at 355 ¶ 24,

266 P.3d at 381. As a result, the court of appeals determined

that the trial court’s use of the “catch-all” aggravator was not

error. Id.

¶6 The court expressly disagreed with State v. Zinsmeyer,

222 Ariz. 612, 218 P.3d 1069 (App. 2009). Bonfiglio, 228 Ariz.

at 355 ¶ 23, 266 P.3d at 381. In Zinsmeyer, the court of

appeals vacated an aggravated sentence and remanded for

resentencing because the trial court did not rely on the

defendant’s prior felony conviction as an aggravator, although

the prior conviction was used to enhance the sentence. 222

Ariz. at 621–23 ¶¶ 20–26, 218 P.3d at 1078–80. Because the only

aggravating factor cited was a “catch-all” factor, Zinsmeyer

concluded that the aggravated sentence was “illegal,” and

therefore constituted fundamental, prejudicial error. Id.

¶¶ 24–26.

¶7 We granted review to answer a question of statewide

importance and to resolve the conflict in the court of appeals’

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opinions. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶8 A trial court may impose a maximum prison term only if

one or more statutory aggravating circumstances are found or

admitted. A.R.S. § 13-701(C). Section 13-701(D) lists twenty-

three enumerated aggravating factors, including prior felony

convictions, § 13-701(D)(11), and one “catch-all” aggravator,

§ 13-701(D)(24), which permits the trier of fact to consider

“[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.”

¶9 We have held that an aggravated sentence based solely

on the “catch-all” aggravator violates due process because that

aggravator is “patently vague.”1 Schmidt, 220 Ariz. at 566 ¶¶ 9–

10, 208 P.3d at 217. But Schmidt permits use of the “catch-all”

aggravator in sentencing “[w]hen one or more clearly enumerated

aggravators are found consistent with Apprendi.” Id. ¶ 11

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

that event, “the ‘elements’ of the aggravated offense will have
1
Schmidt interpreted an older version of the “catch-all”
aggravator, which stated “any other factors which the court may
deem appropriate to the ends of justice.” 220 Ariz. at 564 ¶ 1,
208 P.3d at 215 (quoting A.R.S. § 13-702(D)(13)). Neither party
argues that the change in the statute warrants a different
resolution than that reached in Schmidt.

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been identified with sufficient clarity to satisfy due process.”

Id.

¶10 Schmidt does not require a trial court to state that it

relied on one of the specifically enumerated factors to

aggravate a defendant’s sentence in order to use the “catch-all”

aggravator. Rather, Schmidt permits a trial court to use a

“catch-all” aggravator to impose a sentence up to the statutory

maximum as long as a properly found specifically enumerated

aggravating factor made the defendant eligible for a sentence

greater than the presumptive. See State v. Carreon, 211 Ariz.

32, 33 ¶¶ 6–7, 116 P.3d 1192, 1193 (2005) (finding of historical

prior convictions alone exposed the defendant to an aggravated

sentence); State v. Martinez, 210 Ariz. 578, 584–86 ¶¶ 21, 27,

115 P.3d 618, 624–26 (2005) (finding of a “single aggravating

factor establishes the facts legally essential to expose the

defendant” to an aggravated sentence).

¶11 In this case, the trial court stated on the record that

it used the prior convictions to sentence Bonfiglio as a

repetitive offender. See State v. Ritacca, 169 Ariz. 401, 403,

819 P.2d 987, 989 (App. 1991) (holding that a trial court may

use prior convictions to enhance and aggravate a sentence).

This finding on the record satisfies Schmidt. With due process

concerns allayed, the judge could rely on the jury’s finding of

the “catch-all” factor.

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¶12 State v. Harrison, 195 Ariz. 1, 985 P.2d 486 (1999),

does not compel a different result. In Harrison, we noted that

§ 13-701(C) requires the judge to set forth factual findings

supporting aggravating circumstances “on the record at the time

of sentencing.” Id. at 3 ¶ 6, 985 P.2d at 488 (discussing § 13-

702(B), now renumbered as § 13-701(C)). We did not require

trial judges to recite a “specific litany” or make “formal

findings or conclusions.” Id. at 4 ¶ 12, 985 P.2d at 489.

Rather, Harrison simply required that the sentencing transcript

identify the court’s reasons for imposing an aggravated

sentence. Id. ¶ 13.

¶13 The trial court here complied with § 13-701(C) and

Harrison. The court found on the record Bonfiglio’s prior

convictions, qualifying him for an aggravated sentence. The way

was thus appropriately paved for the court to consider the

“catch-all” aggravator, which was also plainly found in the

sentencing transcript.

¶14 Given the confusion that gave rise to this case,

however, Harrison’s instruction is worth emphasizing. Trial

courts should clearly “articulat[e] at sentencing the factors

the judge considered to be aggravating or mitigating and

explain[] how th[ose] factors led to the sentence[] imposed.”

Id. ¶ 12. A statement that the prior conviction was a

prerequisite for an aggravated sentence, even if the court did

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not rely upon it as its reason for aggravating the sentence,

will inform the defendant of the court’s rationale for imposing

the sentence and, as expressed in Harrison, will “enable an

appellate court to determine whether the trial judge has

correctly considered the specific aggravating or mitigating

circumstances.” Id. ¶ 11.

III.

¶15 We conclude that the trial court did not err in using

the “catch-all” aggravator as a basis for imposing an aggravated

sentence once the court found a specifically enumerated

aggravating factor. Accordingly, we overrule Zinsmeyer to the

extent it is inconsistent with this opinion. We affirm

Bonfiglio’s sentence and affirm the opinion of the court of

appeals.

__________________________________
Robert M. Brutinel, Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
Scott Bales, Vice Chief Justice

__________________________________
A. John Pelander, Justice

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__________________________________
Peter J. Cahill, Judge*

* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Peter J. Cahill, Presiding Judge of the Superior
Court in Gila County, was designated to sit in this matter.

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