SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
HON. MICHAEL J. BROWN, JUDGE OF
THE SUPERIOR COURT OF THE STATE
OF ARIZONA, in and for the
County of Santa Cruz,
JONATHAN WAYNE McMULLEN,
Real Party in Interest. )
Arizona Supreme Court
Court of Appeals
No. 2 CA-SA 2003-0003
Santa Cruz County
O P I N I O N
Special Action from the Superior Court in Santa Cruz County
The Honorable Michael J. Brown, Judge
Opinion of the Court of Appeals, Division Two
205 Ariz. 325, 70 P.3d 454
Martha S. Chase, Santa Cruz County Attorney
By: Marc Offenhartz, Deputy County Attorney
Attorneys for Petitioner
Law office of Robert Hooker
By: Robert Hooker
and Michael J. Miller
Attorneys for Real Party in Interest
Terry Goddard, Arizona Attorney General
By: Randall M. Howe, Chief Counsel
Criminal Appeals Section
Attorneys for Amicus Curiae
Arizona Attorney General
James J. Haas
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
defendant pleading guilty to a criminal offense may be sentenced
to a term greater than the presumptive sentence solely on the
State v. Brown (McMullen), 205 Ariz.
325, 333 ¶ 27 & n.9, 70 P.3d 454, 462 & n.9 (App. 2003).
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).
Wayne McMullen with first-degree murder of his mother and two
McMullen agreed to plead guilty to an amended count
Statutes (“A.R.S.”) § 13-1103(A)(1) (2001), in exchange for the
State agreeing to dismiss the other charges.
sentence for reckless manslaughter, a class two felony, is five
provided that McMullen could receive a sentence between three
years and twelve and one-half years.
A three-year sentence is
finding of at least two substantial mitigating factors.
§ 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-
McMullen then appeared before the respondent judge,
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.
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-
The superior court then determined that the plea
was “knowingly, intelligently and voluntarily made.”
The superior court did not accept the plea, however,
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
appeals seeking relief from both orders.
The court of appeals
accepted jurisdiction and granted relief.
The court noted that
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. § 13702(C)(4); and “[l]ying in wait for the victim or ambushing the
victim during the commission of any felony,” A.R.S. § 13702(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.
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.
the superior court’s orders “hinged largely” on the ruling in
Apprendi that “[o]ther than the fact of a prior conviction, any
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”
McMullen, 205 Ariz. at 328 ¶
Reasoning that the applicable “statutory maximum” for Apprendi
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
Id. at 333 ¶ 26, 70 P.3d at 462.
We granted McMullen’s petition for review because the
case presents an issue of first impression in Arizona and one of
Article 6, Section 5(3) of the Arizona Constitution, and A.R.S.
§ 12-120.24 (2003).
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
530 U.S. at 494.
Apprendi involved a New
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-
The Court held that any fact other than the existence of a
beyond the ten-year “statutory maximum” must be submitted to a
jury and found beyond a reasonable doubt.
Id. at 490.
In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme
Court applied Apprendi to an Arizona law that authorized the
authorized by the jury verdict alone was life imprisonment, the
aggravating factors be found by a jury.
Id. at 603-09.
principles to a Washington sentencing scheme.
pleaded guilty to second-degree kidnapping involving domestic
violence and use of a firearm.
124 S. Ct. at 2534-35.
sentence the defendant to a term of forty-nine to fifty-three
justifying an exceptional sentence.”
Id. at 2535.
reasons were found, the statutes allowed a sentence of up to ten
Id. at 2537.
After finding several such circumstances,
the Washington trial judge imposed a ninety-month sentence.
Washington claimed that Apprendi did not apply to its
sentencing scheme because the “statutory maximum” was the tenyear
circumstances, rather than the otherwise applicable fifty-three
Id. at 2537.
The Supreme Court flatly rejected
[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).
offense, a defendant convicted of a class two felony “shall”
sentence to a maximum of ten years upon a finding of one or more
of the aggravating circumstances set forth in § 13-702(C).
aggravated sentence may be imposed “only if the circumstances
alleged to be in aggravation . . . of the crime are found to be
introduced or submitted to the court before sentencing or any
evidence previously heard by the judge at the trial.”
impose a sentence of up to twelve and one-half years for a first
aggravating factors listed in § 13-702, subsection C.”3
The court of appeals held that the “maximum sentence”
for purposes of Apprendi analysis in this case was the superaggravated
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.
at 333 ¶ 26, 70 P.3d at 462.
McMullen, 205 Ariz.
The State now concedes that this
The “maximum sentence” for Apprendi analysis in this
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 § 13702(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
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.
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 superaggravated 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
address myriad other questions that may arise either in the
further prosecution of this case or in other cases potentially
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
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.
We recognize and appreciate the interest that both the
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
Sess., ch. 1 (codified at A.R.S. §§ 13-703 to -703.05).
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
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.
The opinion of the court of appeals is vacated.
case is remanded to the superior court for further proceedings
consistent with this opinion.
Andrew D. Hurwitz, Justice
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.
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.
“irreconcilable” with Apprendi and overruled Walton.
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
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).
Charles E. Jones, Chief Justice
Ruth V. McGregor, Vice Chief Justice
Rebecca White Berch, Justice
Michael D. Ryan, Justice