Court of Appeals of Arizona, Second Division, Department B
[205 Ariz. 326] Martha S. Chase, Santa Cruz County Attorney, By Marc Offenhartz, Nogales, for Petitioner.
Robert Hooker, Tucson, for Real Party in Interest.
PELANDER, Presiding Judge.
¶ 1 In this special action, petitioner State of Arizona challenges two presentence orders the respondent judge entered in the underlying criminal case, in which real party in interest Jonathan McMullen pled guilty to reckless manslaughter. Based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II), the respondent judge first ordered that the state would have to prove, in a jury trial and beyond a reasonable doubt, any aggravating circumstances alleged pursuant to A.R.S. § 13-702(C). In a second order, entered after the state had petitioned for special action relief from the first order, the respondent judge ruled that A.R.S.§§ 13-702 and 13-702.01 "are unconstitutional on their face, and as applied" to the criminal case against McMullen. 
¶ 2 This court subsequently ordered the state and McMullen to file supplemental memoranda on the constitutional issue, accepted jurisdiction of the special action, and vacated both of the respondent judge's orders, with a decision to follow. This is that decision. We first note that special action jurisdiction is appropriate here because the state has no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Special Actions 1(a), 17B A.R.S.; see A.R.S. § 13-4032. In addition, the special action raises "questions of law that are of statewide importance, apparently of first impression, and likely to recur." O'Brien v. Escher, 204 Ariz. 459, ¶ 3, 65 P.3d 107, ¶ 3 (App.2003); see also State v. Fell, 203 Ariz. 186, ¶ 1, 52 P.3d 218, ¶ 1 (App.2002); State v. Nichols, 201 Ariz. 234, ¶ 1, 33 P.3d 1172, ¶ 1 (App.2001).
¶ 3 On the merits, we hold that Apprendi and its progeny neither compel a jury trial for determining aggravating circumstances in a noncapital case under § 13-702 nor render that statute or § 13-702.01 unconstitutional. Accordingly, we grant relief and reaffirm our previous order vacating the respondent judge's orders.
¶ 4 According to its petition for special action, the state charged McMullen, a minor,
as an adult, pursuant to A.R.S. § 13-501(A)(1), with first-degree murder of his mother and two counts of attempted first-degree murder of his father and brother. McMullen pled guilty to an amended count one, reckless manslaughter, in violation of A.R.S. § 13-1103(A)(1) and (B), in exchange for the dismissal of the latter two charges. The plea agreement stated that the crime to which McMullen was pleading guilty "carries a minimum sentence of 3 years; a presumptive sentence of 5 years and a maximum sentence of 12.5 years." The agreement also stated that "[p]robation is available."
¶ 5 The respondent judge initially deferred acceptance of the plea until the time of sentencing and sua sponte ordered a trial by jury for determination of any aggravating circumstances the state alleged under § 13-702(C).  The respondent judge further ruled that the state bore the burden of proving any aggravation factors beyond a reasonable doubt. Thereafter, the state disclosed four aggravating circumstances it intended to prove: "[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," § 13-702(C)(4); "[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," § 13-702(C)(9); and "[l]ying in wait for the victim or ambushing the victim during the commission of any felony." § 13-702(C)(17).
¶ 6 On McMullen's subsequent motion, the respondent judge entered another order declaring unconstitutional §§ 13-702 and 13-702.01, ruling that "[t]he Arizona sentencing enhancement statutory scheme as represented by these statutes is in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article 2, Sections 3, 23, and 24 of the Constitution of the State of Arizona." In determining whether special action relief is warranted under Rule 3, Ariz. R.P. Special Actions, 17B A.R.S., we review de novo both orders of the respondent judge. See Arizona Dep't of Public Safety v. Superior Court, 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997) (constitutional issues reviewed de novo on special action).
¶ 7 Under § 13-1103(A)(1) and (B), the reckless manslaughter charge (as amended) to which McMullen pled guilty is a class two felony. Section 13-701, A.R.S., entitled "Sentence of imprisonment for felony; presentence report," provides in part that "the term of imprisonment for a felony shall be determined as follows for a first offense: ... For a class 2 felony, five years." § 13-701(C)(1). The next statute, § 13-702, is entitled "Sentencing" and states in pertinent part:
B. The upper or lower term imposed pursuant to ... [§ ] 13-702.01 ... or subsection A of this section may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge on any evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing. 
(Emphasis added.) Subsection (C) of § 13-702 then lists nineteen "aggravating circumstances" the trial court "shall consider" in "determining the sentence." As noted in ¶ 5 above, the state alleged four of those aggravating
[205 Ariz. 328] circumstances existed in McMullen's case. Subsection (D) of § 13-702 requires the trial court to consider various "mitigating circumstances" set forth therein. 
¶ 8 5 Section 13-702.01, A.R.S., entitled "Exceptional circumstances; aggravation; mitigation," provides in part:
A. Notwithstanding § 13-702, subsection A, if a person is convicted of a felony without having previously been convicted of any felony and if the court finds that at least two substantial aggravating factors listed in § 13-702, subsection C apply, the court may increase the maximum term of imprisonment otherwise authorized for that offense up to the following maximum terms:
1. For a Class 2 Felony 12.5 Years
B. Notwithstanding § 13-702, subsection A, if a person is convicted of a felony without having previously been convicted of any felony and if the court finds that at least two substantial mitigating factors listed in § 13-702, subsection D apply, the court may decrease the minimum term of imprisonment otherwise authorized for that offense down to the following minimum terms:
1. For a Class 2 Felony 3 Years
G. The upper or lower term imposed pursuant to this section may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge on any evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of these findings are set forth on the record at the time of sentencing.
¶ 9 In finding §§ 13-702 and 13-702.01 unconstitutional, the respondent judge characterized both statutes as "sentence enhancing statutes" and stated: "They allow the judge to sentence the defendant to as much as 40% less than the five years set forth in ARS 13-701 (3 years) and to as much as 150% more than five years (12.5 years)." Consequently, the judge stated, McMullen "is exposed to two and a half (2 1/2) times the maximum sentence the Court could impose on his plea of guilty." The respondent judge further noted that § 13-702(B) mandates the trial judge, as trier of fact, to consider and make factual findings on any ...