State v. Brown

SUPREME COURT OF ARIZONA
En Banc

THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-05-0263-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 05-0011
HONORABLE MICHAEL J. BROWN, )
JUDGE OF THE SUPERIOR COURT OF ) Santa Cruz County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Santa Cruz, ) No. CR 01-199
)
Respondent Judge, )
)
JONATHAN McMULLEN, ) O P I N I O N
)
Real Party in Interest. )
)
__________________________________)

Appeal from the Superior Court in Santa Cruz County
The Honorable Michael Brown, Retired Judge

AFFIRMED IN RELEVANT PART AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
210 Ariz. 534, 115 P.3d 128 (App. 2005)

AFFIRMED IN RELEVANT PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Nicholas D. Acedo, Assistant Attorney General
Attorneys for the State of Arizona

ROBERT J. HOOKER, PIMA COUNTY PUBLIC DEFENDER Tucson
By Frank P. Leto
Michael J. Miller
Attorneys for Jonathan Wayne McMullen
________________________________________________________________
H U R W I T Z, Justice

¶1 The issue in this case is whether a defendant’s

statements during a plea colloquy relieve the State of its

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

and its progeny to prove aggravating factors to a jury. We

conclude that the Sixth Amendment requires that “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,” id. at 490, unless a defendant has

knowingly, voluntarily, and intelligently waived his right to

jury trial with respect to aggravating factors.

I.

¶2 The State charged Jonathan Wayne McMullen with the

first degree murder of his mother and the attempted first degree

murder of his father and brother. McMullen was fourteen years

old when the events in question occurred. McMullen eventually

agreed to plead guilty to one count of reckless manslaughter in

violation of Arizona Revised Statutes (“A.R.S.”) § 13-1103(A)(1)

(2001) in exchange for the dismissal of the murder and attempted

murder charges.

¶3 Pursuant to Arizona Rules of Criminal Procedure 17.2,

17.3, and 17.4(c), the superior court held a change-of-plea

hearing to determine whether McMullen’s plea was knowing,

voluntary, and intelligent. During that hearing, the court

2
questioned McMullen about the factual basis for his guilty plea.

McMullen stated that on the night of the shooting, he and a

friend talked about taking his mother’s car and driving to

Willcox. McMullen said that he was afraid that they might get

caught taking the car and that he therefore decided to shoot the

people at his house. McMullen then stated that he and the

friend threw something at McMullen’s mother’s bedroom door to

waken her and, when she came into his bedroom, he shot her seven

times. McMullen also stated that, when his brother and father

came into the room, he shot his brother twice and his father

once.

¶4 The superior court found that the plea was “knowingly,

intelligently and voluntarily made,” but deferred acceptance of

the plea until sentencing. The court also determined that under

Apprendi and Ring v. Arizona, 536 U.S. 584 (2002), the maximum

sentence to which McMullen could be sentenced based solely on

his guilty plea was the five-year presumptive term for reckless

manslaughter under A.R.S. § 13-701(C)(1) (2001). The court

scheduled a jury trial to enable the State to prove any

aggravating factors to a jury beyond a reasonable doubt.

¶5 The State subsequently filed a notice of aggravating

factors.1 McMullen then filed a motion arguing that A.R.S. §§

1
The State alleged four aggravating factors: (1) “Use,
threatened use or possession of a deadly weapon or dangerous

3
13-702 and 13-702.01 (2001) (the “aggravation statutes”) were

unconstitutional. In a minute entry, the superior court held

these statutes “unconstitutional on their face, and as applied

to this case.”

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

appeals, which accepted jurisdiction. State v. Brown (McMullen)

(“McMullen I”), 205 Ariz. 325, 326 ¶ 2, 70 P.3d 454, 455 (App.

2003). The court of appeals held that the “statutory maximum”

for purposes of Apprendi and Blakely v. Washington, 542 U.S. 296

(2004), was not the presumptive sentence under A.R.S. § 13-

701(C)(1), but rather the maximum sentence authorized by A.R.S.

§§ 13-702 and 13-702.01 after aggravating factors had been

established. McMullen I, 205 Ariz. at 333 ¶ 26, 70 P.3d at 462.

The court held that McMullen was therefore not entitled to a

jury trial on the aggravating factors alleged by the State. Id.

¶7 McMullen then filed a petition for review in this

Court. We granted review and held that the “statutory maximum”

for purposes of Apprendi and Blakely is the presumptive sentence

established for the defendant’s crime. State v. Brown

_______________________________
instrument during the commission of the crime,” A.R.S. § 13-
702(C)(2) (2001); (2) “[p]resence of an accomplice,” A.R.S. §
13-702(C)(4); (3) “[t]he physical, emotional and financial harm
caused to the victim or, if the victim has died as a result of
the conduct of the defendant, the emotional and financial harm
caused to the victim’s immediate family,” A.R.S. § 13-702(C)(9);
and (4) “[l]ying in wait for the victim or ambushing the victim
during the commission of any felony,” A.R.S. § 13-702(C)(16).

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(McMullen) (“McMullen II”), 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15,

18 (2004).2 We declined to address the “myriad other questions”

potentially raised by Apprendi and Blakely and remanded the case

to the superior court. Id. ¶ 14.

¶8 On remand, the superior court again held the

aggravation statutes unconstitutional. The court also

determined that McMullen’s statements at his change-of-plea

hearing were not “admissions of fact” for purposes of Apprendi

and Blakely because McMullen had not “voluntarily relinquished

his right to a jury trial on the facts necessary to aggravate

his sentence.” The superior court further held that the

existing aggravation statutes did not authorize the convening of

a sentencing jury; instead, the court ordered a sentencing

hearing at which it would “be limited to sentencing the

defendant to the presumptive five-year term.”

¶9 The State again filed a special action and the court

of appeals again accepted jurisdiction. State v. Brown

(McMullen) (“McMullen III”), 210 Ariz. 534, 536 ¶ 1, 115 P.3d

128, 130 (App. 2005). The court of appeals held that the

aggravation statutes were constitutional and that the superior

court should have convened a jury to determine whether

aggravating circumstances existed. Id. at 544 ¶¶ 28-30, 115

2
While McMullen II was pending in this Court, the superior
court accepted the plea “in furtherance of the appeal.”
McMullen II, 209 Ariz. at 201 ¶ 4 n.2, 99 P.3d at 16 n.2.

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P.3d at 138. The court of appeals affirmed, however, the

superior court’s holding that, notwithstanding McMullen’s

statements at his change-of-plea hearing, he was entitled to a

jury trial on the alleged aggravating factors under the

Apprendi/Blakely rule. McMullen III, 210 Ariz. at 542 ¶ 22, 115

P.3d at 136. The court held that “like the right to a jury

trial generally, waiver of the right to a jury trial on

sentencing factors must be knowing and voluntary” and that it

would “not infer that a defendant has waived the jury trial

right established in Blakely based solely on a general waiver of

the right to a jury trial on guilt or innocence.” Id. at 539 ¶

12, 115 P.3d at 133. Accordingly, the court of appeals remanded

for a sentencing hearing before a jury. Id. at 544-45 ¶ 31, 115

P.3d at 138-39.

¶10 McMullen then filed a petition for review in this

Court, arguing that the aggravation statutes were

unconstitutional and that the superior court lacked the power to

convene a jury trial on the existence of aggravating factors.

The State filed a cross-petition for review, arguing (1) that

McMullen’s plea agreement waived his right to jury trial on the

aggravating factors alleged by the State and (2) that McMullen’s

statements during the plea colloquy were “admissions” not

subject to the Sixth Amendment guarantee of jury trial. We

denied McMullen’s petition for review and granted the State’s

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cross-petition. We have jurisdiction pursuant to Article 6,

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

(2003).

II.

A.

¶11 McMullen first argues that the State is judicially

estopped from contending that he waived any right to a jury

trial on aggravating factors by entering into the plea

agreement. During a status conference after McMullen’s change-

of-plea hearing, McMullen’s attorney stated that the defense was

not “waiv[ing] a jury” for any aggravation/mitigation hearing.

Later in the conference, the prosecutor agreed, stating that, at

the change-of-plea hearing, McMullen

gave up his right to a jury trial with the charges
pending before him. The plea the Court has taken on
[sic] and the Plea Agreement predicates he knows he
gave up a jury trial on that. And as far as the jury
trial right [with respect to aggravating factors] that
I do not believe exists in this matter, he hasn’t
given that up. I think as a matter of law . . . he is
not entitled to a jury trial for
aggravating/mitigating factors in this case.

The superior court subsequently held that McMullen had not

waived any right to jury trial on aggravating factors.

¶12 In its first special action to the court of appeals,

the State did not challenge the superior court’s ruling on

waiver. McMullen I, 205 Ariz. at 327 n.2 ¶ 5, 70 P.3d at 456

n.2. In McMullen III, the court of appeals therefore concluded

7
that the State was judicially estopped from arguing to the

contrary. 210 Ariz. at 538 ¶¶ 9-10, 115 P.3d at 132.

¶13 We do not quarrel with the reasoning of the court of

appeals as to judicial estoppel. We do not, however, rely upon

that doctrine in this case. “Judicial estoppel is not intended

to protect individual litigants but is invoked to protect the

integrity of the judicial process by preventing a litigant from

using the courts to gain an unfair advantage.” State v. Towery,

186 Ariz. 168, 182, 920 P.2d 290, 304 (1996). “Judicial

estoppel is an equitable concept, and its application is

therefore within the court’s discretion.” 31 C.J.S. Estoppel

and Waiver § 139 (1996). We believe the public interest would

be served by clarifying whether an agreement to plead guilty to

criminal charges also constitutes an implicit waiver of the

right to jury trial on aggravating factors. We therefore

exercise our discretion not to apply the doctrine of judicial

estoppel in this case and move to the merits of the State’s

waiver argument.

B.

¶14 Apprendi and Blakely each involved defendants who

entered guilty pleas to the crimes charged against them. See

Blakely, 542 U.S. at 298; Apprendi, 530 U.S. at 469-70. In each

case, the defendant clearly waived his right to jury trial on

the crimes charged; nonetheless, the Supreme Court held that

8
each retained the right to jury trial on aggravating factors.

Blakely, 542 U.S. at 313-14; Apprendi, 530 U.S. at 497.

¶15 The Court’s approach in Apprendi and Blakely was

consistent with long-standing precedent. A defendant’s waiver

of his Sixth Amendment rights must be knowing, voluntary, and

intelligent. See Boykin v. Alabama, 395 U.S. 238, 242 (1969).

Such a waiver cannot be presumed when the defendant was neither

informed of the right to jury trial on aggravating factors prior

to his plea nor purported to waive such rights. Id. at 243 (“We

cannot presume a waiver of [this] . . . important federal

right[] from a silent record.”).

¶16 In this case, although McMullen’s plea agreement

expressly waives any right to jury trial on the crime of

reckless manslaughter, it is silent as to any waiver of the

right to jury trial on aggravating factors. Nor was McMullen

informed of such a right at the change–of-plea hearing.3 A

waiver of constitutional rights cannot be presumed on such a

record.

¶17 Indeed, far from demonstrating waiver, the record

makes plain that McMullen expressly preserved his jury trial

claim. At the status conference, McMullen’s counsel explicitly

3
This omission is hardly surprising, as the change of plea
occurred before the issuance of the Supreme Court’s opinion in
Blakely and our opinion in McMullen II, and the State took the
position that there was no right to jury trial on aggravating
factors.

9
told the superior court that his client was not waiving any such

right. In response to that statement, the prosecutor candidly

and correctly recognized that no waiver had taken place.

¶18 We therefore hold that McMullen did not waive his

right to jury trial on the aggravating factors alleged by the

State through his agreement to plead guilty to reckless

manslaughter. We turn to the next issue presented by the

State’s cross-petition: whether a jury trial was not required

because of McMullen’s “admissions” during the plea colloquy.

III.

¶19 In Apprendi, the Supreme Court held that, under the

Sixth and Fourteenth Amendments to the United States

Constitution, “[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. In Ring,

the Court applied this constitutional principle to Arizona’s

death penalty scheme, which at that time permitted a defendant

to be sentenced to death only after a judge had found the

existence of a statutory aggravating factor. 536 U.S. at 588-

89. The Court held that because aggravating factors “operate as

‘the functional equivalent of an element of a greater offense’

the Sixth Amendment requires that they be found by a jury.” Id.

at 609 (quoting Apprendi, 530 U.S. at 494 n.19).

10
¶20 In Blakely, the Court applied its previous holdings to

a Washington state defendant who pled guilty to second degree

kidnapping involving domestic violence and use of a firearm.

542 U.S. at 298-99. The Court again confirmed that the Sixth

Amendment guarantees a defendant’s right to a jury trial with

respect to any fact necessary to the imposition of a sentence

greater than that authorized by the jury verdict alone: “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. at 304 (internal quotation and citation

omitted).

A.

¶21 In the case before us, the State relies heavily on

language in Blakely defining the “maximum sentence” for Apprendi

purposes as the most severe sentence permitted by “the facts

reflected in the jury verdict or admitted by the defendant.”

Id. at 303. There was no jury verdict in this case. The State

contends, however, that any statement made by the defendant

during a judicial proceeding has been “admitted” for Blakely

purposes and “may be relied upon by a sentencing judge without

any additional jury findings.” Under the State’s analysis,

McMullen’s statements during the plea colloquy would permit the

11
imposition of an aggravated sentence without the need for jury

trial.

¶22 The State concedes that neither Blakely nor any of the

Supreme Court’s Apprendi-line of cases explain the context in

which an “admission” by a defendant will satisfy the defendant’s

Sixth Amendment right to jury trial. Like the case before us,

Blakely involved a guilty plea rather than a jury verdict.

Thus, the statement from Blakely upon which the State relies can

reasonably be read as no more than a recognition that a fact

necessary to allow the imposition of an Apprendi “maximum

sentence” – the “functional equivalent of an element” of the

aggravated offense for which the defendant is being sentenced,

Apprendi, 530 U.S. at 494 n.19 – can be established either

because a jury necessarily found that element in a guilty

verdict or because the defendant necessarily admitted that

element in a guilty plea.

¶23 This reading of Blakely is buttressed by the Sixth

Amendment underpinnings of Apprendi and its progeny. Under the

Sixth Amendment, a defendant who takes the stand at trial and

admits the existence of one or more of the elements of an

offense does not thereby surrender his right to have the jury

find all of the elements of the crime. See United States v.

Gaudin, 515 U.S. 506, 510 (1995) (stating that the Fifth and

Sixth Amendments “require criminal convictions to rest upon a

12
jury determination that the defendant is guilty of every element

of the crime with which he is charged, beyond a reasonable

doubt”); State v. Carreon, 210 Ariz. 54, 64 ¶¶ 44-48, 107 P.3d

900, 910 (2005) (holding that even when a defendant stipulates

to an element of an offense, the jury must be asked to find that

element beyond a reasonable doubt). Indeed, even if a defendant

admits all elements of a crime during cross-examination, the

Sixth Amendment nonetheless preserves the right to trial by

jury. Under the Sixth Amendment, a judge cannot direct a guilty

verdict, no matter how clear the defendant’s culpability. Rose

v. Clark, 478 U.S. 570, 578 (1986); United Bhd. of Carpenters &

Joiners v. United States, 330 U.S. 395, 410 (1947).

¶24 It is therefore clear that a defendant’s “admission”

of an element of an offense during a judicial hearing does not

affect his Sixth Amendment right to jury trial with respect to

that element. Because an aggravating circumstance is the

“functional equivalent of an element,” Apprendi, 530 U.S. at 494

n.19, no different Sixth Amendment principle should apply in

that context. Thus, the Supreme Court’s statement in Blakely

that “facts . . . admitted by the defendant,” 542 U.S. at 303,

need not be found by a jury can only logically be read to mean

facts admitted as part of a guilty plea – the elements of the

offense to which the defendant has admitted guilt and waived his

right to jury.

13
¶25 The State does not contend that McMullen’s guilty plea

to reckless manslaughter necessarily admitted the existence of

any of the alleged aggravating factors. At most, McMullen made

statements during the plea colloquy which may have been

“admissions” in an evidentiary sense. But because McMullen did

not agree to judicial factfinding and did not necessarily admit

these facts by pleading guilty to an offense of which they were

elements, his Sixth Amendment right to jury trial remains

intact.

¶26 In short, we hold that the Sixth Amendment right to

jury trial with respect to an aggravating factor necessary to

impose a sentence remains inviolate unless the defendant’s plea

of guilty necessarily establishes the aggravating factor

(because the facts admitted are elements of an offense to which

the defendant has pled guilty)4 or the defendant has

appropriately waived his right to jury trial with respect to

these aggravating factors. See Blakely, 542 U.S. at 310 (“If

appropriate waivers are procured, States may continue to offer

judicial factfinding as a matter of course to all defendants who

plead guilty.”); McMullen III, 210 Ariz. at 543 ¶ 25, 115 P.3d

4
For example, if an adult defendant pleads guilty to child
molestation under A.R.S. § 13-1410 (2001) (specifying as an
element that the “child is under fifteen years of age”) and also
pleads guilty to first degree murder of the child, the defendant
has necessarily admitted the aggravating factor in A.R.S. § 13-
703(F)(9) (Supp. 2005) because the victim must have been “under
fifteen years of age.”

14
at 137 (noting that, in Blakely, the Supreme Court “was

referring to the pre-existing standards for the waiver of the

right to a jury trial—those set forth in Boykin and its

progeny”). Neither circumstance is present here, and McMullen

thus is entitled to a jury trial before an aggravated sentence

can be imposed.

B.

¶27 Our opinion today will likely have limited reach. The

case before us involves a guilty plea entered before the

issuance of the Blakely opinion; we trust that few cases in

which guilty pleas were accepted thereafter will be affected.

Blakely makes plain that “nothing prevents a defendant from

waiving his Apprendi rights” and that the State may condition a

defendant’s guilty plea on his willingness to waive his right to

a jury trial both on elements of the crime charged and on

aggravating factors. 542 U.S. at 310; see also id. n.12 (noting

that a State is not “required to give defendants the option of

waiving jury trial on some elements but not others”). Both

McMullen and the State indicated at oral argument that this is

now routine practice.

¶28 The practical scope of our ruling today is also

effectively constrained by our recent opinion in State v.

Martinez, holding that “once a jury implicitly or explicitly

finds one aggravating factor, a defendant is exposed to a

15
sentencing range that extends to the maximum punishment

available under section 13-702.” 210 Ariz. 578, 584 ¶ 21, 115

P.3d 618, 624 (2005). Once one Blakely-compliant or Blakely-

exempt factor has been established, the “trial judge has

discretion to impose any sentence within the statutory

sentencing range.” Id. Thus, a jury trial is not required to

establish additional aggravating factors if, for example, the

defendant has a qualifying prior conviction, or the defendant’s

plea of guilty to the offense or some other offense necessarily

establishes the existence of a qualifying aggravating factor.5

IV.

¶29 For the reasons stated above, we affirm the opinion of

the court of appeals insofar as it holds that McMullen retains

the right to jury trial with respect to the aggravating factors

the State claims were “admitted” in the plea colloquy. We

affirm the superior court’s similar holding and remand this case

to the superior court for further proceedings consistent with

this opinion.

_______________________________________
Andrew D. Hurwitz, Justice

5
This Court has held that judicial factfinding may be
harmless error when no reasonable jury could have reached a
determination contrary to that made by the judge. State v.
Ring, 204 Ariz. 534, 555-59 ¶¶ 54-68, 65 P.3d 915, 936-40
(2003). That doctrine has no application here, however, because
the superior court made no findings at all with respect to any
aggravating factor.

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CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

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