STATE v HON. FELL/EDWARD JOHN SANDERS

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SUPREME COURT OF ARIZONA En Banc THE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) ) HON. HOWARD FELL, JUDGE PRO ) TEMPORE OF THE SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Pima, ) ) Respondent Judge, ) ) EDWARD JOHN SANDERS, ) ) Real Party in Interest. ) ) __________________________________) Arizona Supreme Court No. CV-04-0344-PR Court of Appeals Division Two No. 2 CA-SA 04-0057 Pima County Superior Court No. CR20002900 O P I N I O N Special Action from the Superior Court of Pima County The Honorable Howard Fell, Judge Pro Tempore No. CR20002900 REMANDED Opinion of the Court of Appeals, Division Two 209 Ariz. 77, 97 P.3d 902 AFFIRMED BARBARA LAWALL, PIMA COUNTY ATTTORNEY By Amy Pignatella Cain, Deputy County Attorney Kathleen A. Mayer, Deputy County Attorney Attorneys for State of Arizona Tucson HIGGINS & HIGGINS, P.C. By Harold Higgins, Jr. Attorneys for Edward John Sanders Tucson H U R W I T Z, Justice ¶1 Under Arizona law, if the death penalty is not imposed for first degree murder, the only other possible sentences are life with the possibility of release after a specified period ( life )1 or ( natural life ). (Supp. 2004). life with no Ariz. possibility Rev. Stat. of eventual ( A.R.S. ) § release 13-703(A) We are called on in this case to decide (1) whether the Sixth Amendment requires that a jury find specific aggravating circumstances before the superior court may impose a natural life sentence and (2) whether the superior court can apply a law adopted in 2003 in deciding between a life and a natural life sentence for a first degree murder committed in 2000. I. ¶2 Edward John Sanders was indicted in 2000 for sexual assault and murder. the death penalty The State filed a notice of intent to seek and alleged two aggravating circumstances: that Sanders had committed the offense in an especially heinous, cruel, or depraved manner, see 1 A.R.S. § 13-703(F)(6) (Supp. The period depends upon the age of the murdered person. If the murdered person is fifteen or more years of age, the period is twenty-five calendar years; if less than fifteen years of age, the period is thirty-five years. A.R.S. § 13-703(A). 2 2000),2 and that at the time of the offense Sanders was an adult and the victim was seventy years of age or older, see A.R.S. § 13-703(F)(9). The State later withdrew the notice seeking the death penalty. ¶3 Before cases and the two case different proceeded to trial, legislative two enactments different radically affected Arizona s first degree murder sentencing scheme. In 2002, the Supreme Court of the United States held Arizona s capital sentencing scheme unconstitutional because judges, not juries, determined the existence of the aggravating circumstances necessary to impose a death sentence. Arizona, 536 U.S. 584 (2002) ( Ring II ). The Ring v. legislature reacted to Ring II by amending Arizona s sentencing scheme to provide for jury trials on circumstances in capital cases. the existence of aggravating 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1. ¶4 In 2003, this Court held that under the pre-Ring statutory scheme, a judge imposing a non-capital sentence for first degree forth in A.R.S. punishment. (2003). 2 murder § could consider 13-703(F) when only the deciding aggravators the set appropriate State v. Viramontes, 204 Ariz. 360, 64 P.3d 188 The legislature then amended the sentencing scheme to Unless noted otherwise, all citations to A.R.S. § 13-703 in this opinion refer to the version of the statute in place at the time this crime was committed in 2000. 3 provide that a trial judge [s]hall consider the aggravating and mitigating circumstances listed in section 13-702 when choosing between a life or natural life sentence for first degree murder. 2003 Ariz. Sess. Laws, ch. 255, § 2 (codified as A.R.S. § 13703.01(Q) (Supp. 2003)). ¶5 On June 11, 2004, a jury found Sanders guilty of first degree murder and other offenses. On June 24, 2004, the United States Supreme Court held Washington s non-capital sentencing scheme unconstitutional under the Sixth Amendment. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The trial judge subsequently determined that Blakely required a jury to find the existence of aggravating circumstances before Sanders could be sentenced to natural life. The trial judge also concluded that, notwithstanding the adoption of § 13-703.01(Q), only the aggravating circumstances listed in A.R.S. § 13-703(F) were relevant to the sentencing decision.3 ¶6 The State petitioned for special action review in the court of appeals. that Blakely does That court accepted jurisdiction and held not apply to Arizona s non-capital, first degree murder sentencing scheme because a trial judge is not required to make findings in addition to those made by the jury in its guilty verdict in deciding between a life and a natural 3 Although neither the superior court s written order nor the transcripts of the proceedings below are explicit on this point, the parties agreed at oral argument in the court of appeals that the superior court so held. 4 life sentence. State v. Fell (Sanders), 209 Ariz. 77, 89 ¶ 42, 97 P.3d 902, 914 (App. 2004). It also held that A.R.S. § 13- 703.01(Q) did not apply retroactively and that the trial court therefore could consider only the factors in § 13-703(F) when determining the sentence. ¶7 Id. at 85 ¶ 27, 97 P.3d at 910. Sanders petitioned for review of the Blakely holding and the State cross-petitioned for review of the retroactivity holding. We granted both petitions because the issues are of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12120.24 (2003). II. A. ¶8 As we noted last year, Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny make plain 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. State v. Brown (McMullen), 15, 209 Ariz. 200, 202 ¶ 7, (quoting Apprendi, 530 U.S. at 494). 99 P.3d 17 (2004) Any fact other than the existence of a prior conviction that increases a defendant s punishment beyond the statutory maximum must be found by a 5 jury beyond a reasonable doubt. Id. (quoting Apprendi, 530 U.S. at 490). ¶9 In Blakely, the Supreme Court held that the 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 . . . . 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. 542 U.S. at ___, 124 S. Ct. at 2537. Our initial task therefore is to determine the statutory maximum for first degree murder in Arizona: the maximum sentence that can be imposed without the court superior making any factual findings beyond those reflected in the jury verdict of guilt. B. ¶10 Determining the statutory maximum for Apprendi/Blakely purposes is of necessity a matter of statutory construction. 12, 99 P.3d committed, See Brown (McMullen), 209 Ariz. at 202-03 ¶¶ 11at A.R.S. 17-18. § When 13-1105(C) the crime (Supp. in 2000) this case provided was that [f]irst degree murder . . . is punishable by death or life imprisonment as provided by section 13-703. A.R.S. § 13-703(A) in turn provided as follows: 6 At that time, A person guilty of first degree murder as defined in § 13-1105 shall suffer death or imprisonment in the custody of the state department of corrections for life as determined and in accordance with the procedures provided in subsections B through G of this section. If the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant s natural life. An order sentencing the defendant to natural life is not subject to commutation or parole, work furlough or work release. If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years if the victim was fifteen or more years of age and thirty-five years if the victim was under fifteen years of age. ¶11 We interpreted this statutory scheme in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) ( Ring I ), rev d on other grounds by Ring II, 536 U.S. 584. We stated that in first degree murder cases, [t]he range of punishment allowed by law on the basis of the [guilty] verdict alone is life imprisonment with the possibility of parole or imprisonment life without the possibility of release. P.3d at 1151. for natural Id. at 279 ¶ 42, 25 Although Ring I did not address the precise issue now before us, we today confirm that our statement in that case accurately explained the law: nothing in § 13-703 required the finding of any fact beyond those reflected in the jury s verdict of guilt as a prerequisite to the imposition of a natural life sentence. ¶12 in The first degree murder sentencing statute in effect 2000 expressly required the 7 finding of at least one aggravating imposed. circumstance before a death sentence could be See A.R.S. § 13-703(E) (allowing sentence of death only if the court finds one or more aggravating circumstances . . . and that sufficiently there are substantial to no mitigating call for circumstances leniency ); State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983) ( Where none of the statutory present, our aggravating statute circumstances prohibits the are found to penalty. ).4 death be In contrast, nothing in § 13-703 required that any specific fact be found before a natural life sentence could be imposed. ¶13 Sanders nonetheless argues that life is the presumptive sentence for first degree murder and that natural life is an aggravated sentence. sentence arises from the The notion of a presumptive statutes governing punishment for felonies other than first degree murder, which generally provide that a defendant shall receive a specific term of imprisonment. See A.R.S. §§ 13-701 (2001) (governing sentences for 3, class 2, 4, 5 and 6 felonies) and (governing sentences for second degree murder). 13-710 (2001) The presumptive sentence may be either increased or reduced based upon findings of specific aggravating or mitigating circumstances. 13-702(A) (Supp. 2004). 4 A.R.S. § Thus, we held in Brown (McMullen) that The current version of the statute similarly requires that the trier of fact find one of the statutory aggravating circumstances before the death penalty can be imposed. A.R.S. § 13-703(E) (Supp. 2004). 8 the presumptive sentence under § 13-701 sentence for purposes of Apprendi analysis. is the maximum 209 Ariz. at 203 ¶ 12, 99 P.3d at 18. ¶14 However, the statutes governing sentencing for first degree murder are markedly different. While §§ 13-701 and 13- 710 provide that a specific sentence shall be imposed for various felonies in the absence of a finding of either the prior criminal history described in A.R.S. § 13-604 or the aggravating circumstances specified similar language. in § 13-702, § 13-703 contains no The statute does not provide that a defendant shall receive life unless certain facts are found. To the contrary, the statute provides that [i]f the court imposes a life sentence, the court may order that the defendant not be released on any natural life. legislature basis for the remainder of the defendant s A.R.S. § 13-703(A) (emphasis added). intended to require a specific finding Had the be made before a natural life sentence could be imposed, it surely would have said so specifically, as it did in the statutes governing sentencing for felonies other than first degree murder. ¶15 Unlike the determinate sentencing scheme generally applicable to other felonies, § 13-703(E) provides the superior court with the discretion to sentence an offender within a range from murder. life to natural life for non-capital first degree See State v. Wagner, 194 Ariz. 310, 313 ¶ 16, 982 P.2d 9 270, 273 (1999) (noting that the first degree murder statutes lack . . . guidelines natural life ). for imposing a sentence of life or In this area, the legislature has concluded that the trial court can appropriately exercise its discretion to determine whether future release is possible (although not assured) or whether the defendant must instead spend the rest of his or her life in prison.5 C. ¶16 first Viramontes held that under the pre-Ring version of the degree murder sentencing scheme, the procedures and aggravators of section 13-703 apply in all first degree murder cases, not simply those in which the death penalty is sought. 204 Ariz. at 362 ¶ 10, 64 P.3d at 190. Sanders argues that because A.R.S. § 13-703(D) required that the court return a special verdict setting forth its findings as to the existence or non-existence of aggravating and mitigating circumstances, a natural life sentence could not be imposed in the absence of the 5 State v. Ovind, 186 Ariz. 475, 924 P.2d 479 (App. 1996), upon which Sanders relies, is not to the contrary. The court of appeals expressly recognized in Ovind that [u]nlike the sentences for other crimes, the statute relating to first degree murder does not describe any sentence as the presumptive one. Id. at 478, 924 P.2d at 482. The court nonetheless applied the rule of lenity in concluding that life was the presumptive sentence for purposes of commitment of a defendant adjudged guilty but insane, because it was the least onerous commitment to which the statute exposes the Defendant. Id. (emphasis added). The least onerous commitment allowed by the guilty verdict is by definition plainly not the maximum sentence for purposes of Apprendi analysis. 10 finding of at least one of the aggravating circumstances listed in § 13-703(F). But Sanders argument conflates the notion of a statutory maximum with an entirely different concept the specification court may by the legislature consider in of exercising what its facts a sentencing discretion within a statutorily permitted sentencing range. ¶17 In holding that a judge deciding between a life and natural life sentence can consider only the factors in § 13703(F), Viramontes neither expressly nor impliedly held that a court must find any specific aggravating factor to impose a natural life sentence. The special verdict explains the judge s reasons for imposing the sentence, but the statute does not require any specific factual finding before statutorily eligible for a natural life term. explained difference in Blakely, between there factual is an findings a defendant is As Justice Scalia important necessary constitutional to make a defendant eligible for a specified range of penalty and those that shape a trial judge s discretion within that range: [T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing 11 discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. 542 U.S. at ___, 124 S. Ct. at 2540. ¶18 Sanders argues that the requirement in § 13-703(D) that the superior court return a special verdict is meaningless unless some specific factual finding natural life sentence is imposed. is required before a A statutory requirement that a judge make findings, however, does not mean that any specific finding is necessary for imposition of the sentence.6 The statutory scheme restricted the factors that the superior court could consider in choosing between 6 life and natural life The Supreme Court has reached a similar conclusion with respect to the federal sentencing guidelines. In United States v. Booker, the Court, after holding that the provision making the guidelines mandatory violated the Sixth Amendment, severed that provision, thus making the guidelines effectively advisory. 125 S. Ct. 738, 756-57 (2005) (Breyer, J., for the Court (remedial majority)). So construed, the federal guidelines did not violate the rule of Apprendi because they simply directed sentencing judges to consider certain factors when imposing a sentence within the previously determined statutory range. See id. at 750 ( If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. ) (Stevens, J., for the Court (constitutional majority)). Thus, even though federal judges make specific findings with respect to facts not found by the jury in imposing sentence, there is no Sixth Amendment violation because those findings do not increase the statutory maximum. Similarly, the findings in an Arizona special verdict resulting in a natural life sentence do not increase the statutory maximum. 12 sentences for requirement factors non-capital first the statute of listed in former § 13-703(F) degree be that murder. only considered Given the the aggravating in determining whether a life or natural life sentence was to be imposed, see Viramontes, 204 Ariz. at 362 ¶ 12, 64 P.3d at 190, the special verdict served to ensure that inappropriate factors were not considered when the trial court exercised its sentencing discretion.7 ¶19 We therefore conclude that the Sixth Amendment does not require that a jury find an aggravating circumstance before a natural life sentence can be imposed. III. ¶20 The remaining question is what factors the judge may consider in exercising his discretion to sentence a defendant to either life or natural life. Viramontes held that the former version of § 13-703 limited trial judges to the aggravating factors listed in subsection (F) of that statute. Several months after that opinion was issued, the legislature enacted 7 When the sentencing scheme places discretion in the superior court to sentence within a specified range, an appellate court has the power to review the sentence for an abuse of discretion. See State v. Grier, 146 Ariz. 511, 515, 707 P.2d 309, 313 (1985) ( An abuse of discretion in sentencing is characterized by capriciousness, arbitrariness or by failure to conduct an adequate investigation into facts necessary for an intelligent exercise of the court s sentencing power. ). While an abuse of discretion will, as a practical matter, rarely be found, the trial court s explanation of its reasoning serves to facilitate such review, and is thus never a useless exercise. 13 what is now A.R.S. § 13-703.01(Q)(2) (Supp. 2004), providing that [i]n determining whether to impose a sentence of life or natural life, a trial court [s]hall consider the aggravating and mitigating circumstances listed in section 13-702 and any statement made by a victim. 2. 2003 Ariz. Sess. Laws, ch. 225, § The State argues that § 13-703.01(Q) should be applied when the superior court determines Sanders sentence. A. ¶21 No statute is retroactive unless expressly declared therein. A.R.S. § 1-244 (2002). Nothing in 2003 Ariz. Sess. Laws, ch. 225, expressly declares that § 13-703.01(Q) is to be retroactively applied. In contrast, when the legislature amended the death penalty sentencing scheme after Ring II, it carefully detailed the application of various provisions of the new statute to pending cases. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7. ¶22 However, the absence of any legislative declaration about retroactivity does not end our inquiry. This court has previously created an exception to the general rule requiring express language of retroactivity. Enactments that are procedural only, and do not alter or affect earlier established substantive rights may be applied retroactively. Even if a statute does not expressly provide for retroactivity, it may still be applied if merely procedural because litigants have no vested right in a given mode of procedure. 14 Aranda v. Indus. Comm n, 198 Ariz. 467, 470 ¶ 11, 11 P.3d 1006, 1009 (2000). We thus must determine whether § 13-703.01(Q) is a procedural or substantive change to prior law. ¶23 We conclude that the change was not simply procedural. Under the law in effect at the time that Sanders committed his crime, the superior aggravators specified court in § could consider 13-703(F) in between a life and natural life sentence. instead empowers the trial court to only making the the ten choice Section 13-703.01(Q) take twenty-one aggravators listed in § 13-702(C). into account the Because the new statute thus allows the imposition of a sentence on the basis of factors that the prior law excluded from consideration, it is plainly a substantive change in the law. See State v. Correll, 148 Ariz. 468, 482, 715 P.2d 721, 735 (1986) (holding that a law changing the aggravating circumstances that may be considered in a decision to impose the death penalty for murder under § 13-703 is a substantive, rather than a procedural, change ). B. ¶24 We have recognized another exception to the general rule against retroactive application of a statutory amendment when the amendment is simply a clarification of existing law. An amendment which, in effect, construes and clarifies a prior statute will be accepted as the legislative declaration of the 15 original act. City of Mesa v. Killingsworth, 96 Ariz. 290, 297, 394 P.2d 410, 414 (1964). ¶25 This rule of statutory interpretation applies, however, only when the original statute is ambiguous. State v. Sweet, 143 Ariz. 266, 269, 693 P.2d 921, 924 (1985). Even assuming arguendo that § 13-703 was ambiguous before Viramontes, no such conclusion was possible after our decision in that case. Once published, statute. our interpretation becomes part of the Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 17, 69 P.3d 23, 27 (2003). After Viramontes, it was clear that § 13- 703 precluded a trial judge from considering the aggravating circumstances in § 13-702 when determining whether to impose a life or natural life sentence. The 2003 statutory amendment to § 13-703.01(Q) cannot therefore be read as a clarification of prior law. Compare Sweet, 143 Ariz. at 271, 693 P.2d at 926 (construing amendment to A.R.S. § 13-604.01 as clarification where [t]he amendment did not change that which was clear and distinct in the first place ), with State v. Murray, 194 Ariz. 373, 982 A.R.S. P.2d §§ 1287 13-604, (1999) -604.02 (refusing to apply retroactively, amendments where to amendments abrogated prior case law interpreting statutory language). C. ¶26 Finally, the State argues that Viramontes was wrongly decided and urges that we overrule it. 16 We decline to do so. The doctrine of stare decisis, which requires us to give weight to previous decisions addressing the same issue, seeks to promote reliability so that parties can plan activities knowing what the law is. Importantly, our deference to precedent is strongest when prior decisions construe a statute. [E]ven those who regard stare decisis with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute. Galloway, 205 Ariz. at 256 ¶ 16, 69 quotation marks and citations omitted). P.3d at 27 (internal Viramontes, as noted above, involved statutory construction. ¶27 respond The legislature is, of course, free at any time to to our relevant statute. enacting § statutory changing the That is precisely what occurred here. By 13-703.01(Q), interpretations the legislature by restricted the application of the holding in Viramontes to those cases arising before the effective date of the new statute. Thus, there is no reason to revisit our prior decision. IV. ¶28 For the reasons above, the opinion of the court of appeals is affirmed, and the case is remanded to the superior court for further proceedings consistent with this opinion. Andrew D. Hurwitz, Justice CONCURRING: _________ Ruth V. McGregor, Chief Justice 17 ____ Rebecca White Berch, Vice Chief Justice ____ Michael D. Ryan, Justice ____ Charles E. Jones, Justice (Retired) 18

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