State of Arizona v. Austin James Bonfiglio

295 P.3d 948, 231 Ariz. 371, 655 Ariz. Adv. Rep. 6, 2013 WL 812414, 2013 Ariz. LEXIS 58
CourtArizona Supreme Court
DecidedMarch 6, 2013
DocketCR-12-0018-PR
StatusPublished
Cited by23 cases

This text of 295 P.3d 948 (State of Arizona v. Austin James Bonfiglio) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Arizona v. Austin James Bonfiglio, 295 P.3d 948, 231 Ariz. 371, 655 Ariz. Adv. Rep. 6, 2013 WL 812414, 2013 Ariz. LEXIS 58 (Ark. 2013).

Opinion

OPINION

BRUTINEL, Justice.

¶ 1 A court must set forth on the record at sentencing one of 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 November 25, 2009, a jury found Austin James Bonfiglio guilty of aggravated assault, a class 3 dangerous felony. 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 § 13-701(D)(11). At sentencing, the trial court acknowledged Bonfiglio’s prior convictions and also noted that he was on probation when the offense occurred. 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 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[sie] 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 *373 aggravated term[,] in the Department of Correetions.

¶ 4 Bonfiglio appealed, arguing that the trial court’s use of the “catch-all” aggravating factor found by the jury was improper. State v. Bonfiglio, 228 Ariz. 349, 352 ¶ 9, 266 P.3d 375, 378 (App.2011). The court of appeals affirmed Bonfiglio’s conviction and sentence. Id. at 355 ¶ 24, 266 P.3d at 381.

¶ 5 The court recognized that the jury-found aggravator was a “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 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. § 13-701(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.” Id. at 355 ¶ 24, 266 P.3d at 381. As a result, the court of appeals determined that the trial court’s use of the “catchall” aggravator was riot error. Id.

¶ 6 The court expressly disagreed with State v. Zinsmeyer, 222 Ariz. 612, 218 P.3d 1069 (App.2009). Bonfiglio, 228 Ariz. at 355 ¶ 23, 266 P.3d at 381. In Zinsmeyer, the court of appeals vacated an aggravated sentence and remanded for resentencing because the trial court did not rely on the defendant’s prior felony conviction as an aggravator, although the prior conviction was used to enhance the sentence. 222 Ariz. at 621-23 ¶¶ 20-26, 218 P.3d at 1078-80. Because the only aggravating factor cited was a “catch-all” factor, Zinsmeyer concluded that the aggravated sentence was “illegal,” and therefore constituted fundamental, prejudicial 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’ 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. A.R.S. § 13-701(C). Section 13-701(D) lists twenty-three enumerated aggravating factors, including prior felony convictions, § 13-701(D)(11), and one “catch-all” 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 Schmidt, 220 Ariz. at 566 ¶¶ 9-10, 208 P.3d at 217. 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. ¶ 11 (referencing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). In that event, “the ‘elements’ of the aggravated offense will have 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 *374 State v. Carreon, 211 Ariz. 32, 33 ¶¶ 6-7, 116 P.3d 1192

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Cite This Page — Counsel Stack

Bluebook (online)
295 P.3d 948, 231 Ariz. 371, 655 Ariz. Adv. Rep. 6, 2013 WL 812414, 2013 Ariz. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-arizona-v-austin-james-bonfiglio-ariz-2013.