STATE OF ARIZONA v AUSTIN JAMES BONFIGLIO

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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) AUSTIN JAMES BONFIGLIO, ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-12-0018-PR Court of Appeals Division One No. 1 CA-CR 10-0075 Maricopa County Superior Court No. CR2009-122982-001 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Lisa Ann VandenBerg, Commissioner AFFIRMED ________________________________________________________________ Opinion of the Court of Appeals, Division One 228 Ariz. 349, 266 P.3d 375 (App. 2011) AFFIRMED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Angela Corinne Kebric, Assistant Attorney General Joseph T. Maziarz, Assistant Attorney General Attorneys for State of Arizona JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix By Tennie B. Martin, Deputy Public Defender Mikel P. Steinfeld, Deputy Public Defender Attorneys for Austin James Bonfiglio ________________________________________________________________ - 1 - B R U T I N E L, Justice ¶1 of A court must set forth on the record at sentencing one the specific statutory aggravating factors enumerated in A.R.S. § 13-701(D)(1) (23) before it may impose an aggravated sentence. We hold that once the court identifies one of these factors, it may rely on the catch-all aggravator provision in § 13-701(D)(24) to increase the sentence even if the court does not expressly use the specific statutory aggravator as a basis for increasing the sentence. I. ¶2 On Bonfiglio felony. November guilty of 25, 2009, aggravated a jury assault, found a Austin class 3 James dangerous As an aggravating factor, the jury found that Bonfiglio had the ability to walk away from the confrontation, but had not done so. ¶3 Before sentencing, Bonfiglio admitted two prior felony convictions, a specific statutory aggravating factor under § 13701(D)(11). At sentencing, Bonfiglio s prior convictions the and trial also probation when the offense occurred. court noted acknowledged that he was on The court recognized on the record that Bonfiglio s prior convictions subjected him to an enhanced sentence range: [A]t this point, you have already admitted at a trial on the priors, two prior felony convictions. The court is cognizant of the record previously made on - 2 - that date[;] given that, the court will sentence you under a range provided by the statute for two historical priors for a class three felony under the non[-]dangerous categories, [§] 13-702. The trial court then imposed an aggravated sentence, stating: With that, I am cognizant of the facts [sic] that because you were on probation at the time of the offense which was also resolved at trial on the priors, that the minimum you can receive is the presumptive which is a [sic] 11.25 years. However, as I stated, the court has considered the one aggravating factor the jury found. I have considered all of the information that has been presented and this court does find it appropriate to order that you serve a term of 13 years, a slightly aggravated term[,] in the Department of Corrections. ¶4 of Bonfiglio appealed, arguing that the trial court s use the catch-all improper. aggravating by the jury was The court of appeals affirmed Bonfiglio s conviction and sentence. a found State v. Bonfiglio, 228 Ariz. 349, 352 ¶ 9, 266 P.3d 375, 378 (App. 2011). ¶5 factor Id. at 355 ¶ 24, 266 P.3d at 381. The court recognized that the jury-found aggravator was catch-all aggravator because it was not specifically statutorily enumerated, id. at 354 ¶ 19, 266 P.3d at 380, and as such, could not serve as the sole basis for imposing an aggravated sentence, id. (citing State v. Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009)). The court noted, however, that the trial court was required to consider the prior felony convictions as an aggravating - 3 - circumstance and to sentence Bonfiglio under the range for a repetitive offender. Id. at 354 55 ¶¶ 22, 24, 266 P.3d at 380 81 (citing A.R.S. § 13701(D)). The court concluded that the prior convictions exposed [Bonfiglio] to the maximum sentence authorized by the applicable sentencing statute for repetitive offenders, whether or not the [trial] court expressly stated that it had used the criminal history to aggravate the sentence. 266 P.3d at 381. Id. at 355 ¶ 24, As a result, the court of appeals determined that the trial court s use of the catch-all aggravator was not error. Id. ¶6 The court expressly disagreed with State v. Zinsmeyer, 222 Ariz. 612, 218 P.3d 1069 (App. 2009). at 355 ¶ 23, 266 P.3d at 381. appeals vacated resentencing an because In Zinsmeyer, the court of aggravated the Bonfiglio, 228 Ariz. sentence trial court and did remanded not for rely the on defendant s prior felony conviction as an aggravator, although the prior conviction was used to enhance the sentence. Ariz. at 621 23 ¶¶ 20 26, 218 P.3d at 1078 80. aggravating factor cited concluded that the therefore constituted was a aggravated catch-all sentence fundamental, 222 Because the only factor, was prejudicial Zinsmeyer illegal, and error. Id. ¶¶ 24 26. ¶7 We granted review to answer a question of statewide importance and to resolve the conflict in the court of appeals - 4 - opinions. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶8 A trial court may impose a maximum prison term only if one or more statutory aggravating circumstances are found or admitted. three A.R.S. § 13-701(C). enumerated convictions, § aggravating Section 13-701(D) lists twentyfactors, including and catch-all 13-701(D)(11), one prior felony aggravator, § 13-701(D)(24), which permits the trier of fact to consider [a]ny other factor that the state alleges is relevant to the defendant s character or background or to the nature or circumstances of the crime. ¶9 We have held that an aggravated sentence based solely on the catch-all aggravator violates due process because that aggravator is patently vague. 1 10, 208 P.3d at 217. Schmidt, 220 Ariz. at 566 ¶¶ 9 But Schmidt permits use of the catch-all aggravator in sentencing [w]hen one or more clearly enumerated aggravators are found consistent with Apprendi. Id. ¶ (referencing Apprendi v. New Jersey, 530 U.S. 466 (2000)). 11 In that event, the elements of the aggravated offense will have 1 Schmidt interpreted an older version of the catch-all aggravator, which stated any other factors which the court may deem appropriate to the ends of justice. 220 Ariz. at 564 ¶ 1, 208 P.3d at 215 (quoting A.R.S. § 13-702(D)(13)). Neither party argues that the change in the statute warrants a different resolution than that reached in Schmidt. - 5 - been identified with sufficient clarity to satisfy due process. Id. ¶10 Schmidt does not require a trial court to state that it relied on one of the specifically enumerated factors to aggravate a defendant s sentence in order to use the catch-all aggravator. Rather, Schmidt permits a trial court to use a catch-all aggravator to impose a sentence up to the statutory maximum as long as a properly found specifically enumerated aggravating factor made the defendant eligible for a sentence greater than the presumptive. See State v. Carreon, 211 Ariz. 32, 33 ¶¶ 6 7, 116 P.3d 1192, 1193 (2005) (finding of historical prior convictions alone exposed the defendant to an aggravated sentence); State v. Martinez, 210 Ariz. 578, 584 86 ¶¶ 21, 27, 115 P.3d 618, 624 26 (2005) (finding of a single aggravating factor establishes the facts legally essential to expose the defendant to an aggravated sentence). ¶11 it In this case, the trial court stated on the record that used the prior convictions repetitive offender. to sentence Bonfiglio as a See State v. Ritacca, 169 Ariz. 401, 403, 819 P.2d 987, 989 (App. 1991) (holding that a trial court may use prior convictions to enhance and aggravate This finding on the record satisfies Schmidt. a sentence). With due process concerns allayed, the judge could rely on the jury s finding of the catch-all factor. - 6 - ¶12 State v. Harrison, 195 Ariz. 1, 985 P.2d 486 (1999), does not compel a different result. In Harrison, we noted that § 13-701(C) requires the judge to set forth factual findings supporting aggravating circumstances on the record at the time of sentencing. Id. at 3 ¶ 6, 985 P.2d at 488 (discussing § 13- 702(B), now renumbered as § 13-701(C)). trial judges to recite a specific findings or conclusions. We did not require litany or make formal Id. at 4 ¶ 12, 985 P.2d at 489. Rather, Harrison simply required that the sentencing transcript identify the sentence. ¶13 court s reasons for imposing an aggravated Id. ¶ 13. The trial court here complied with § 13-701(C) and Harrison. The court found on the record Bonfiglio s convictions, qualifying him for an aggravated sentence. was thus appropriately catch-all aggravator, paved for the court which was also to plainly prior The way consider found the in the sentencing transcript. ¶14 Given however, Harrison s the confusion that gave rise is worth emphasizing. instruction to this case, Trial courts should clearly articulat[e] at sentencing the factors the judge considered to be aggravating or mitigating and explain[] how th[ose] factors led to the sentence[] imposed. Id. ¶ 12. A statement that the prior conviction was a prerequisite for an aggravated sentence, even if the court did - 7 - not rely upon it as its reason for aggravating the sentence, will inform the defendant of the court s rationale for imposing the sentence and, as appellate court correctly considered circumstances. to expressed determine the in Harrison, whether specific the will enable an trial judge has aggravating or mitigating Id. ¶ 11. III. ¶15 We conclude that the trial court did not err in using the catch-all aggravator as a basis for imposing an aggravated sentence once the aggravating factor. extent it Bonfiglio s is court a specifically enumerated Accordingly, we overrule Zinsmeyer to the inconsistent sentence found and with affirm this the We opinion. opinion of the court appeals. __________________________________ Robert M. Brutinel, Justice CONCURRING: __________________________________ Rebecca White Berch, Chief Justice __________________________________ Scott Bales, Vice Chief Justice __________________________________ A. John Pelander, Justice - 8 - affirm of __________________________________ Peter J. Cahill, Judge* * Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Peter J. Cahill, Presiding Judge of the Superior Court in Gila County, was designated to sit in this matter. - 9 -

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