STATE v HON. BROWN/JONATHAN McMULLEN

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SUPREME COURT OF ARIZONA En Banc THE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) ) HONORABLE MICHAEL J. BROWN, ) JUDGE OF THE SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Santa Cruz, ) ) Respondent Judge, ) ) JONATHAN McMULLEN, ) ) Real Party in Interest. ) ) __________________________________) Arizona Supreme Court No. CV-05-0263-PR Court of Appeals Division Two No. 2 CA-SA 05-0011 Santa Cruz County Superior Court No. CR 01-199 O P I N I O N 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 By Randall M. Howe, Chief Counsel Criminal Appeals Section Nicholas D. Acedo, Assistant Attorney General Attorneys for the State of Arizona Phoenix 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 statements issue during in a this plea case is colloquy whether relieve the a defendant s 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 17.3, Pursuant to Arizona Rules of Criminal Procedure 17.2, and hearing to voluntary, 17.4(c), the determine and superior whether intelligent. court held McMullen s During 2 that a plea change-of-plea was hearing, knowing, the court questioned McMullen about the factual basis for his guilty plea. McMullen stated that on the night of the shooting, he and a friend talked Willcox. about taking his mother s car and driving to 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. scheduled jury trial a § to 13-701(C)(1) enable the (2001). State to The court prove any aggravating factors to a jury beyond a reasonable doubt. ¶5 factors.1 The State subsequently filed a notice of aggravating 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 appeals, which accepted jurisdiction. action in the court of 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. § 13701(C)(1), but rather the maximum sentence authorized by A.R.S. §§ 13-702 and established. 13-702.01 after aggravating factors had been 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 this Court. McMullen then filed a petition for review in 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. § 13702(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). 4 (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 the On remand, aggravation determined statutes that superior court unconstitutional. McMullen s statements again The at his held the court also 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 hearing at jury; which instead, it would the court ordered be limited to a sentencing sentencing the defendant to the presumptive five-year term. ¶9 of The State again filed a special action and the court 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 aggravating circumstances existed. 2 jury to determine whether Id. at 544 ¶¶ 28-30, 115 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. 5 P.3d at 138. superior The court s court of holding appeals that, affirmed, however, notwithstanding the McMullen s statements at his change-of-plea hearing, he was entitled to a jury trial on the alleged Apprendi/Blakely rule. P.3d at 136. trial aggravating factors under the McMullen III, 210 Ariz. at 542 ¶ 22, 115 The court held that like the right to a jury 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. 12, 115 P.3d at 133. Id. at 539 ¶ 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 Court, arguing then that filed a the petition for aggravation review in statutes this 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 6 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 agreement. factors by entering into the plea 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 the In its first special action to the court of appeals, State waiver. n.2. did not challenge the superior court s ruling on McMullen I, 205 Ariz. at 327 n.2 ¶ 5, 70 P.3d at 456 In McMullen III, the court of appeals therefore concluded 7 that the State contrary. was judicially estopped from arguing to the 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. that doctrine in this case. We do not, however, rely upon 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. 186 Ariz. estoppel 168, is 182, an 920 equitable P.2d 290, concept, 304 and therefore within the court s discretion. and Waiver § 139 (1996). State v. Towery, (1996). its Judicial application is 31 C.J.S. Estoppel We believe the public interest would be served by clarifying whether an agreement to plead guilty to criminal right to charges jury also trial constitutes on an implicit waiver aggravating factors. We of the 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 entered guilty pleas to the crimes charged against them. Blakely, 542 U.S. at 298; Apprendi, 530 U.S. at 469-70. who See 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 consistent with long-standing precedent. and Blakely was 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. cannot presume a waiver of [this] . . . Id. at 243 ( We important federal right[] from a silent record. ). ¶16 In expressly this waives case, any although right to McMullen s jury trial plea on agreement 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 manslaughter. his agreement We turn State s cross-petition: to to the plead next guilty issue to reckless presented by the 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. the Court applied this 530 U.S. at 490. constitutional principle to In Ring, Arizona s death penalty scheme, which at that time permitted a defendant to be sentenced to death only after a judge existence of a statutory aggravating factor. 89. had found the 536 U.S. at 588- 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. at 609 (quoting Apprendi, 530 U.S. at 494 n.19). 10 Id. ¶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. contends, There was no jury verdict in this case. however, that any statement made by the The State 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. Blakely involved a guilty plea Like the case before us, 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 because a verdict or U.S. jury at 494 n.19 necessarily because the found defendant can be that established element necessarily in a admitted either guilty 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 jury. Under the Sixth Amendment, a judge cannot direct a guilty verdict, no matter how clear the defendant s culpability. by 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 which during the plea colloquy admissions in an evidentiary sense. may have been 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. § 13703(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 progeny ). jury trial those set forth in Boykin and its Neither circumstance is present here, and McMullen thus is entitled to a jury trial before an aggravated sentence can be imposed. B. ¶27 case Our opinion today will likely have limited reach. before us involves a guilty plea entered The 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 aggravating factors. elements of the crime charged and on 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 effectively practical constrained scope by of our our recent ruling opinion today is also in State v. Martinez, holding that once a jury implicitly or explicitly finds one aggravating factor, 15 a defendant is exposed to a sentencing range that extends available under section 13-702. P.3d 618, 624 (2005). exempt factor discretion to has sentencing range. Id. the maximum punishment 210 Ariz. 578, 584 ¶ 21, 115 Once one Blakely-compliant or Blakely- been impose to established, any sentence the trial within the judge has statutory 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. 16 CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ W. Scott Bales, Justice 17

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