State v. Brown

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-03-0255-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 2003-0003
)
HON. MICHAEL J. BROWN, JUDGE OF ) Santa Cruz County
THE SUPERIOR COURT OF THE STATE ) Superior Court
OF ARIZONA, in and for the ) No. CR-01-199
County of Santa Cruz, )
)
Respondent, ) O P I N I O N
)
and )
)
JONATHAN WAYNE McMULLEN, )
)
Real Party in Interest. )
)
__________________________________)

Special Action from the Superior Court in Santa Cruz County
The Honorable Michael J. Brown, Judge

REMANDED

Opinion of the Court of Appeals, Division Two
205 Ariz. 325, 70 P.3d 454

VACATED

Martha S. Chase, Santa Cruz County Attorney Nogales
By: Marc Offenhartz, Deputy County Attorney
Attorneys for Petitioner

Law office of Robert Hooker Tucson
By: Robert Hooker
and Michael J. Miller
Attorneys for Real Party in Interest
Terry Goddard, Arizona Attorney General Phoenix
By: Randall M. Howe, Chief Counsel
Criminal Appeals Section
Attorneys for Amicus Curiae
Arizona Attorney General

James J. Haas Phoenix
and John A. Stookey
Attorneys for Amici Curiae
Arizona Public Defender Association and
Arizona Attorneys for Criminal Justice

H U R W I T Z, Justice

¶1 The court of appeals held in this case that a

defendant pleading guilty to a criminal offense may be sentenced

to a term greater than the presumptive sentence solely on the

basis of facts found by the trial judge upon a showing of

“reasonable evidence.” State v. Brown (McMullen), 205 Ariz.

325, 333 ¶ 27 & n.9, 70 P.3d 454, 462 & n.9 (App. 2003). We

granted review to examine that opinion in light of the

constitutional principles set forth in Apprendi v. New Jersey,

530 U.S. 466 (2000), and its most recent progeny, Blakely v.

Washington, 124 S. Ct. 2531 (2004).

I.

¶2 The State charged real party in interest Jonathan

Wayne McMullen with first-degree murder of his mother and two

counts of attempted first-degree murder of his father and

brother. McMullen agreed to plead guilty to an amended count

one, reckless manslaughter, in violation of Arizona Revised

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Statutes (“A.R.S.”) § 13-1103(A)(1) (2001), in exchange for the

State agreeing to dismiss the other charges. The presumptive

sentence for reckless manslaughter, a class two felony, is five

years. A.R.S. § 13-701(C)(1) (2001). The plea agreement

provided that McMullen could receive a sentence between three

years and twelve and one-half years. A three-year sentence is

the minimum allowed for a class two felony, and requires a

finding of at least two substantial mitigating factors. A.R.S.

§ 13-702.01(B)(1) (2001). A sentence of twelve and one-half

years can be imposed for a class two felony after a finding of

at least two substantial aggravating factors. A.R.S. § 13-

702.01(A)(1).

¶3 McMullen then appeared before the respondent judge,

who personally addressed him in order to make the various

determinations required by Arizona Rules of Criminal Procedure

17.2, 17.3, and 17.4(c), and to decide pursuant to Rule 17.4(d)

whether to accept or reject the plea agreement. When asked

during the ensuing colloquy to describe the crime in order to

allow the court to determine the factual basis for the plea,

McMullen made statements that the State now contends establish

the existence of three aggravating factors under A.R.S. § 13-

3
702(C) (2001).1 The superior court then determined that the plea

was “knowingly, intelligently and voluntarily made.”

¶4 The superior court did not accept the plea, however,

instead deferring acceptance until the time of sentencing.2

Citing Apprendi, the superior court ordered a trial by jury for

determination of any aggravating circumstances alleged under §

13-702(C), and held that the State bore the burden of proving

any aggravator beyond a reasonable doubt. The superior court

subsequently entered a second order declaring A.R.S. §§ 13-702

and -702.01 “unconstitutional on their face, and as applied to

this case.”

¶5 The State filed a special action in the court of

appeals seeking relief from both orders. The court of appeals

accepted jurisdiction and granted relief. The court noted that

1
The State contends that McMullen’s statements establish
“[u]se, threatened use or possession of a deadly weapon or
dangerous instrument during the commission of the crime,” A.R.S.
§ 13-702(C)(2); “[p]resence of an accomplice,” A.R.S. § 13-
702(C)(4); and “[l]ying in wait for the victim or ambushing the
victim during the commission of any felony,” A.R.S. § 13-
702(C)(17). The State also alleged a fourth aggravating
circumstance, “[t]he emotional and financial harm caused to the
victim’s immediate family,” A.R.S. § 13-702(C)(9), but does not
contend that McMullen’s statements during the colloquy were an
admission of this aggravator.
2
On October 7, 2004, the superior court accepted both the
plea and the plea agreement, reasoning that such an action
“would be in furtherance of the appeal” and thus within the
superior court’s jurisdiction notwithstanding the pendency of
this matter in this Court. Given our disposition of this case,
we have no occasion today to consider whether the superior
court’s conclusion was correct.

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the superior court’s orders “hinged largely” on the ruling in

Apprendi 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.” McMullen, 205 Ariz. at 328 ¶

10, 70 P.3d at 457 (quoting Apprendi, 530 U.S. at 490).

Reasoning that the applicable “statutory maximum” for Apprendi

purposes was the twelve-and-one-half-year super-aggravated

sentence, not the presumptive five-year sentence, the court of

appeals concluded that the trial judge could impose a sentence

above five years absent a jury finding of aggravators beyond a

reasonable doubt “without running afoul of the United States or

Arizona Constitutions.” Id. at 333 ¶ 26, 70 P.3d at 462.

¶6 We granted McMullen’s petition for review because the

case presents an issue of first impression in Arizona and one of

statewide importance. We exercise jurisdiction pursuant to

Article 6, Section 5(3) of the Arizona Constitution, and A.R.S.

§ 12-120.24 (2003).

II.

¶7 Apprendi held that the Sixth and Fourteenth Amendments

of the United States Constitution require a jury to find, beyond

a reasonable doubt, any fact that would “expose the defendant to

a greater punishment than that authorized by the jury’s guilty

verdict” alone. 530 U.S. at 494. Apprendi involved a New

5
Jersey statute under which the ten-year maximum sentence for a

criminal conviction could be increased to twenty years if the

court determined the offense to be a “hate crime.” Id. at 468-

69. The Court held that any fact other than the existence of a

prior conviction that increased the defendant’s punishment

beyond the ten-year “statutory maximum” must be submitted to a

jury and found beyond a reasonable doubt. Id. at 490.

¶8 In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme

Court applied Apprendi to an Arizona law that authorized the

death penalty only if a judge found one of ten aggravating

factors. Concluding that the statutory “maximum penalty”

authorized by the jury verdict alone was life imprisonment, the

Court held that the Sixth Amendment required that the

aggravating factors be found by a jury. Id. at 603-09.

¶9 Blakely involved the application of the same

principles to a Washington sentencing scheme. The defendant

pleaded guilty to second-degree kidnapping involving domestic

violence and use of a firearm. 124 S. Ct. at 2534-35. Under

the applicable statutes, the trial judge was required to

sentence the defendant to a term of forty-nine to fifty-three

months unless he found “substantial and compelling reasons

justifying an exceptional sentence.” Id. at 2535. If such

reasons were found, the statutes allowed a sentence of up to ten

years. Id. at 2537. After finding several such circumstances,

6
the Washington trial judge imposed a ninety-month sentence. Id.

at 2535.

¶10 Washington claimed that Apprendi did not apply to its

sentencing scheme because the “statutory maximum” was the ten-

year maximum term allowed upon the finding of exceptional

circumstances, rather than the otherwise applicable fifty-three

month limit. Id. at 2537. The Supreme Court flatly rejected

that argument:

[T]he “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 by the defendant. In other words, the
relevant “statutory maximum” is not the maximum
sentence a judge may impose after finding additional
facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment
that the jury’s verdict alone does not allow, the jury
has not found all the facts “which the law makes
essential to the punishment,” and the judge exceeds
his proper authority.

Id. (internal citations omitted).

A.

¶11 Arizona law provides that in the case of a first

offense, a defendant convicted of a class two felony “shall”

receive a sentence of five years. A.R.S. § 13-701(C)(1).

Section 13-702(A) allows an increase of this presumptive

sentence to a maximum of ten years upon a finding of one or more

of the aggravating circumstances set forth in § 13-702(C). The

aggravated sentence may be imposed “only if the circumstances

7
alleged to be in aggravation . . . of the crime are found to be

true by the trial judge upon any evidence or information

introduced or submitted to the court before sentencing or any

evidence previously heard by the judge at the trial.” A.R.S. §

13-702(B). Section 13-702.01(A) allows the trial judge to

impose a sentence of up to twelve and one-half years for a first

offender if the judge finds “at least two substantial

aggravating factors listed in § 13-702, subsection C.”3

¶12 The court of appeals held that the “maximum sentence”

for purposes of Apprendi analysis in this case was the super-

aggravated twelve-and-one-half-year term authorized by § 13-

702.01(A)(1), and therefore rejected McMullen’s argument that

the aggravators justifying such a sentence were required to be

found by a jury beyond a reasonable doubt. McMullen, 205 Ariz.

at 333 ¶ 26, 70 P.3d at 462. The State now concedes that this

opinion cannot withstand analysis in light of Blakely. We

agree. The “maximum sentence” for Apprendi analysis in this

3
Under A.R.S. § 13-702(A), the presumptive five-year
sentence may be reduced to four years if the trial court finds
one or more of the mitigating circumstances set forth in § 13-
702(D). Under § 13-702.01(B), the sentence may be reduced to
three years if the court finds “at least two substantial
mitigating factors listed in § 13-702, subsection D.” Apprendi
makes clear that the Sixth Amendment limit on judicial
discretion applies only to factfinding “that increases the
penalty for a crime beyond the prescribed statutory maximum.”
530 U.S. at 490; see id. at 498 (Scalia, J., concurring)
(nothing in the Sixth Amendment prohibits a “tenderhearted
judge” from imposing a sentence less than the statutory
maximum).

8
case is the five-year presumptive sentence in § 13-701(C)(1).

Because a sentence in excess of five years could be imposed on

McMullen only after a finding of one or more of the aggravating

circumstances in § 13-702(C), the Sixth Amendment guarantee of

jury trial extends to the finding of these facts and requires

proof beyond a reasonable doubt.

B.

¶13 The only issue presented to the court of appeals in

the State’s special action was whether the “statutory maximum”

for Apprendi purposes was the five-year presumptive sentence (as

the superior court held) or the twelve-and-one-half year super-

aggravated sentence (as the State’s special action contended).

This was thus the only issue addressed by the opinion below.

Because all parties now concede that the court of appeals erred

in its resolution of that question, that opinion must be

vacated.

¶14 The parties and their amici nonetheless ask us to

address myriad other questions that may arise either in the

further prosecution of this case or in other cases potentially

affected by the Apprendi and Blakely decisions. Given the

procedural posture in which this case arrived in this Court, we

decline to do so. While many of these additional issues deserve

serious consideration, almost none have been directly addressed

by the trial judge, and none were raised in or decided by the

9
court of appeals.4 We are unwilling, even in this important area

of the law, to consider these issues as an initial matter in the

context of this special action.

¶15 We recognize and appreciate the interest that both the

State and the defense bar have in understanding the full

implications of Apprendi and its progeny for the Arizona

sentencing scheme. We believe, however, that the best approach

is to resolve any such questions in this dynamic area of the law

in the context of a case in which the relevant issue is squarely

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

We also are mindful that the legislature may choose to moot many

such questions, as it did in the wake of Ring, by enacting new

sentencing statutes. See 2002 Ariz. Sess. Laws, 5th Spec.

Sess., ch. 1 (codified at A.R.S. §§ 13-703 to -703.05). We

4
For example, some amici have suggested that the superior
court lacks the authority to convene a jury to consider alleged
aggravating circumstances. But McMullen neither objected to the
superior court’s order convening such a jury nor petitioned for
special action relief from that order. For that reason, neither
the superior court nor the court of appeals has had occasion to
consider this argument.

The State, on the other hand, argues that no jury trial is
needed because McMullen made certain statements in the plea
colloquy which the State characterizes as “admissions” of
aggravating circumstances. See Blakely, 124 S. Ct. at 2537
(stating that right to jury trial does not extend to “facts
. . . admitted by the defendant”). But see id. at 2541 (stating
that jury trial not required when the defendant “stipulates to
the relevant facts”) (emphasis added). This argument has
neither been presented to, nor ruled upon, by any court below.

10
therefore leave additional questions not addressed below to

another day.5

III.

¶16 The opinion of the court of appeals is vacated. This

case is remanded to the superior court for further proceedings

consistent with this opinion.

Andrew D. Hurwitz, Justice

5
We are guided in this regard by the Supreme Court of the
United States, which has employed a distinctly incremental
approach to the topic now before us. In Jones v. United States, 526 U.S. 227 (1999), the Court noted its serious constitutional
concerns with a federal statute that could be read as allowing
stricter criminal punishment on the basis of facts not found by
a jury. 526 U.S. at 243 n.6. The holding of the case, however,
rested on an interpretation of the statute chosen to avoid such
“serious constitutional questions.” Id. at 251-52. One year
later, Apprendi turned the Jones concern into a constitutional
rule. 530 U.S. at 490. Apprendi, however, declined to overrule
the holding in Walton v. Arizona, 497 U.S. 639 (1990), that a
judge may find aggravating factors necessary for imposition of
the death penalty. Id. at 497. The Court also refused to
express an opinion as to whether its holding would affect the
Federal Sentencing Guidelines. Id. at 497 n.21. Ring v.
Arizona, 536 U.S. 584, 589 (2002), then found Walton
“irreconcilable” with Apprendi and overruled Walton. In
Blakely, the Court made clear that the rule of Apprendi
invalidated a state’s non-capital criminal sentence imposed on
the basis of aggravating facts not proved beyond a reasonable
doubt to a jury. 124 S. Ct. at 2538. Yet, the Court again
refused to express any opinion on the validity of the Federal
Sentencing Guidelines, because the Guidelines were not directly
at issue. Id. at 2538 n.9. The Court now is considering the
validity of the Federal Sentencing Guidelines. See United States
v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73
U.S.L.W. 3073 (Aug. 2, 2004); Fanfan v. United States, 2004 WL
1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073
(Aug. 2, 2004).

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CONCURRING:

_
Charles E. Jones, Chief Justice

______
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

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