FILED BY CLERK IN THE COURT OF APPEALS JUL 30 2009 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Respondent, ) 2 CA-CR 2007-0401-PR ) DEPARTMENT B v. ) ) OPINION DOUGLAS SCOTT PERRIN, ) ) Petitioner. ) )
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20054034
Honorable Christopher C. Browning, Judge
REVIEW GRANTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Respondent
Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Tucson Attorneys for Petitioner
V Á S Q U E Z, Judge. ¶1 This post-conviction relief proceeding returns to us on remand from the
Arizona Supreme Court for us to reconsider our prior memorandum decision in light of its
opinion in State v. Schmidt, 220 Ariz. 563, 208 P.3d 214 (2009). After further consideration,
we vacate our prior decision, vacate Perrin’s sentence for manslaughter, and remand for
resentencing.
Procedural Background
¶2 Pursuant to a plea agreement encompassing charges in two separate
indictments, Perrin was convicted of manslaughter, driving with a blood alcohol
concentration of .08 or more, and aggravated driving under the influence of an intoxicant
(DUI) with a minor present. For the first two convictions, the trial court sentenced him to
concurrent, substantially aggravated terms of imprisonment, the longest of which was 12.5
years, and it imposed a ten-year term of intensive probation for the aggravated DUI
conviction.
¶3 Pursuant to Rule 32, Ariz. R. Crim. P., Perrin filed a petition for post-
conviction relief, asking the trial court to vacate his substantially aggravated sentences for
manslaughter because (1) the court had not provided advance notice of its intent to consider
that range of sentence, as required by statute; (2) counsel was ineffective for failing to object
to the imposition of a substantially aggravated sentence; and (3) the court had used improper
factors and had failed to find the requisite number of enumerated aggravating factors to
substantially aggravate his sentence. The court permitted Perrin to introduce additional
2 mitigation evidence and reconsidered its imposition of the substantially aggravated sentence,
but it ultimately denied relief. Perrin then filed a petition for review with this court.
¶4 In his petition, Perrin asserted he had been improperly sentenced under § 13-
702.01 to the substantially aggravated sentence for manslaughter because the trial court had
not found the presence of two enumerated aggravating factors listed in § 13-702(C) and
instead relied in part on factors it had found under the “catch-all provision” of § 13-
702(C)(21), which permits a court to consider any non-enumerated factors it “deems
appropriate to the ends of justice.” 1 Perrin acknowledged that in State v. Soto-Perez, 192
Ariz. 566, ¶ 3, 968 P.2d 1051, 1053 (App. 1998), this court had held, based on the statute’s
language, that a trial court could use the catch-all aggravator, in part, to substantially
aggravate a sentence under § 13-702.01. However, he contended Soto-Perez was wrongly
decided.
¶5 In our memorandum decision, we rejected Perrin’s invitation to reconsider our
decision in Soto-Perez, finding its statutory analysis “compelling” and noting that Perrin had
“cite[d] no evidence of the legislature’s intent other than the plain language of the statute,
. . . nor [had] he cite[d] any subsequent development in the law that might have invalidated
[Soto-Perez’s] analysis.” No. 2 CA-CR 2007-0401-PR, ¶ 6 (memorandum decision filed
1 Since Perrin was sentenced, the relevant sentencing statutes have been amended and renumbered. See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120; 2006 Ariz. Sess. Laws, ch. 104, § 1; 2005 Ariz. Sess. Laws, ch. 20, § 1; 2004 Ariz. Sess. Laws, ch. 174, § 1. Therefore, for ease of reference, we refer to the statutes in effect at that time.
3 Sept. 5, 2008). Perrin petitioned for review to our supreme court, which granted his petition
and remanded to this court for our reconsideration in light of its recent decision in Schmidt.
Discussion
¶6 In Schmidt, the supreme court considered whether a defendant’s maximum
potential sentence could be increased based solely on the catch-all aggravator in § 13-
702(C)(21). 220 Ariz. 563, ¶ 1, 208 P.3d at 215. Schmidt had pled guilty to two offenses
and received the presumptive prison term for one charge and lifetime probation for the other.
Id. ¶ 2. After serving his sentence and subsequently violating his probation conditions three
times, the trial court revoked probation and sentenced him to an aggravated term of
imprisonment pursuant to § 13-702, based solely on the catch-all provision. Id. ¶ 3. Schmidt
petitioned for post-conviction relief, and our supreme court granted review and remanded for
¶7 In its analysis, the court focused on principles of due process and fair notice,
which protect individuals from arbitrary government action, and it relied heavily on the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 484 (2000), and
subsequent cases, which have been generally understood to stand for the proposition that a
defendant has a constitutional right under the Sixth Amendment to have a jury find beyond
a reasonable doubt “all the facts ‘which the law makes essential to the punishment.’” Blakely
v. Washington, 542 U.S. 296, 304 (2004), quoting 1 J. Bishop, Criminal Procedure § 87, at
55 (2d ed. 1872). See generally United States v. Booker, 543 U.S. 220 (2005); Harris v.
4 United States, 536 U.S. 545 (2002); see also Schmidt, 220 Ariz. 563, ¶¶ 5-7, 208 P.3d at 216-
17. According to Apprendi, legally essential facts are those “that expose a defendant to a
penalty greater than the prescribed statutory maximum 2 applicable by virtue of a guilty
verdict”; such facts are “functionally . . . element[s of the offense] for purposes of the Sixth
Amendment jury right.” State v. Martinez, 210 Ariz. 578, ¶ 10, 115 P.3d 618, 621-22 (2005).
They therefore must “be treated accordingly.” Schmidt, 220 Ariz. 563, ¶ 6, 208 P.3d at 216.
Thus the court in Schmidt concluded, “[b]ecause protection against arbitrary government
action is the quintessence of due process, the rationale of Apprendi and subsequent cases
require that [it] assess the vagueness of the catch-all aggravator.” 220 Ariz. 563, ¶ 7, 208
P.3d at 216; see also Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
¶8 After reviewing § 13-702(C)(21), the court concluded, “[t]he catch-all
provision is patently vague,” and its use “as the sole factor to increase a defendant’s statutory
maximum sentence violates due process because it gives the sentencing court virtually
unlimited post hoc discretion to determine whether the defendant’s prior conduct is the
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FILED BY CLERK IN THE COURT OF APPEALS JUL 30 2009 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Respondent, ) 2 CA-CR 2007-0401-PR ) DEPARTMENT B v. ) ) OPINION DOUGLAS SCOTT PERRIN, ) ) Petitioner. ) )
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20054034
Honorable Christopher C. Browning, Judge
REVIEW GRANTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Respondent
Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin Tucson Attorneys for Petitioner
V Á S Q U E Z, Judge. ¶1 This post-conviction relief proceeding returns to us on remand from the
Arizona Supreme Court for us to reconsider our prior memorandum decision in light of its
opinion in State v. Schmidt, 220 Ariz. 563, 208 P.3d 214 (2009). After further consideration,
we vacate our prior decision, vacate Perrin’s sentence for manslaughter, and remand for
resentencing.
Procedural Background
¶2 Pursuant to a plea agreement encompassing charges in two separate
indictments, Perrin was convicted of manslaughter, driving with a blood alcohol
concentration of .08 or more, and aggravated driving under the influence of an intoxicant
(DUI) with a minor present. For the first two convictions, the trial court sentenced him to
concurrent, substantially aggravated terms of imprisonment, the longest of which was 12.5
years, and it imposed a ten-year term of intensive probation for the aggravated DUI
conviction.
¶3 Pursuant to Rule 32, Ariz. R. Crim. P., Perrin filed a petition for post-
conviction relief, asking the trial court to vacate his substantially aggravated sentences for
manslaughter because (1) the court had not provided advance notice of its intent to consider
that range of sentence, as required by statute; (2) counsel was ineffective for failing to object
to the imposition of a substantially aggravated sentence; and (3) the court had used improper
factors and had failed to find the requisite number of enumerated aggravating factors to
substantially aggravate his sentence. The court permitted Perrin to introduce additional
2 mitigation evidence and reconsidered its imposition of the substantially aggravated sentence,
but it ultimately denied relief. Perrin then filed a petition for review with this court.
¶4 In his petition, Perrin asserted he had been improperly sentenced under § 13-
702.01 to the substantially aggravated sentence for manslaughter because the trial court had
not found the presence of two enumerated aggravating factors listed in § 13-702(C) and
instead relied in part on factors it had found under the “catch-all provision” of § 13-
702(C)(21), which permits a court to consider any non-enumerated factors it “deems
appropriate to the ends of justice.” 1 Perrin acknowledged that in State v. Soto-Perez, 192
Ariz. 566, ¶ 3, 968 P.2d 1051, 1053 (App. 1998), this court had held, based on the statute’s
language, that a trial court could use the catch-all aggravator, in part, to substantially
aggravate a sentence under § 13-702.01. However, he contended Soto-Perez was wrongly
decided.
¶5 In our memorandum decision, we rejected Perrin’s invitation to reconsider our
decision in Soto-Perez, finding its statutory analysis “compelling” and noting that Perrin had
“cite[d] no evidence of the legislature’s intent other than the plain language of the statute,
. . . nor [had] he cite[d] any subsequent development in the law that might have invalidated
[Soto-Perez’s] analysis.” No. 2 CA-CR 2007-0401-PR, ¶ 6 (memorandum decision filed
1 Since Perrin was sentenced, the relevant sentencing statutes have been amended and renumbered. See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120; 2006 Ariz. Sess. Laws, ch. 104, § 1; 2005 Ariz. Sess. Laws, ch. 20, § 1; 2004 Ariz. Sess. Laws, ch. 174, § 1. Therefore, for ease of reference, we refer to the statutes in effect at that time.
3 Sept. 5, 2008). Perrin petitioned for review to our supreme court, which granted his petition
and remanded to this court for our reconsideration in light of its recent decision in Schmidt.
Discussion
¶6 In Schmidt, the supreme court considered whether a defendant’s maximum
potential sentence could be increased based solely on the catch-all aggravator in § 13-
702(C)(21). 220 Ariz. 563, ¶ 1, 208 P.3d at 215. Schmidt had pled guilty to two offenses
and received the presumptive prison term for one charge and lifetime probation for the other.
Id. ¶ 2. After serving his sentence and subsequently violating his probation conditions three
times, the trial court revoked probation and sentenced him to an aggravated term of
imprisonment pursuant to § 13-702, based solely on the catch-all provision. Id. ¶ 3. Schmidt
petitioned for post-conviction relief, and our supreme court granted review and remanded for
¶7 In its analysis, the court focused on principles of due process and fair notice,
which protect individuals from arbitrary government action, and it relied heavily on the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 484 (2000), and
subsequent cases, which have been generally understood to stand for the proposition that a
defendant has a constitutional right under the Sixth Amendment to have a jury find beyond
a reasonable doubt “all the facts ‘which the law makes essential to the punishment.’” Blakely
v. Washington, 542 U.S. 296, 304 (2004), quoting 1 J. Bishop, Criminal Procedure § 87, at
55 (2d ed. 1872). See generally United States v. Booker, 543 U.S. 220 (2005); Harris v.
4 United States, 536 U.S. 545 (2002); see also Schmidt, 220 Ariz. 563, ¶¶ 5-7, 208 P.3d at 216-
17. According to Apprendi, legally essential facts are those “that expose a defendant to a
penalty greater than the prescribed statutory maximum 2 applicable by virtue of a guilty
verdict”; such facts are “functionally . . . element[s of the offense] for purposes of the Sixth
Amendment jury right.” State v. Martinez, 210 Ariz. 578, ¶ 10, 115 P.3d 618, 621-22 (2005).
They therefore must “be treated accordingly.” Schmidt, 220 Ariz. 563, ¶ 6, 208 P.3d at 216.
Thus the court in Schmidt concluded, “[b]ecause protection against arbitrary government
action is the quintessence of due process, the rationale of Apprendi and subsequent cases
require that [it] assess the vagueness of the catch-all aggravator.” 220 Ariz. 563, ¶ 7, 208
P.3d at 216; see also Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
¶8 After reviewing § 13-702(C)(21), the court concluded, “[t]he catch-all
provision is patently vague,” and its use “as the sole factor to increase a defendant’s statutory
maximum sentence violates due process because it gives the sentencing court virtually
unlimited post hoc discretion to determine whether the defendant’s prior conduct is the
functional equivalent of an element of the aggravated offense.” Id. ¶¶ 9-10. It thus held that,
in order for the “‘elements’ of the aggravated offense [to] have been identified with sufficient
clarity to satisfy due process,” the trial court was required to find “one or more clearly
2 In Arizona, “the statutory maximum sentence for Apprendi purposes in a case in which no aggravating factors have been proved to a jury beyond a reasonable doubt is the presumptive sentence established” by statute. State v. Martinez, 210 Ariz. 578, ¶ 17, 115 P.3d 618, 623 (2005).
5 enumerated aggravators . . . consistent with Apprendi.” Schmidt, 220 Ariz. 563, ¶ 11, 208
P.3d at 217.3
¶9 We find Schmidt analytically indistinguishable from this case. Although
Perrin’s statutory sentencing range was increased pursuant to § 13-702.01, which required
the trial court to find at least two aggravating factors rather than one factor as in Schmidt, the
presence of two such factors is “essential to the punishment” Perrin received. See Blakely,
542 U.S. at 304. Consequently, each of the two factors is a functional element of the
substantially aggravated offense, and in order to impose a substantially aggravated sentence
under § 13-702.01(A), the court must have found a minimum of two “clearly enumerated
aggravators.” Schmidt, 220 Ariz. 563, ¶ 11, 220 P.3d at 217. Here, the court substantially
aggravated Perrin’s sentence on the basis of one enumerated factor—the harm to the victim’s
family—and two catch-all factors. The court’s use of the catch-all to aggravate substantially
Perrin’s sentence subjected him to the same “unlimited post hoc discretion” against which
Schmidt protects. See id. ¶ 10. Therefore, Perrin’s sentence is invalid.
¶10 This holding conflicts directly with our conclusion in State v. Soto-Perez.
However, we decided Soto-Perez before the Supreme Court’s opinions in Apprendi and
3 The court did not invalidate the use of § 13-702(C)(21) for all purposes in Schmidt. Although it found a catch-all could not be used to establish a particular sentencing range, the court then suggested that once a sentencing range has been established through enumerated aggravators, “[s]ubsequent reliance on other factors embraced by a catch-all to justify a sentence up to the statutory maximum comports with the traditional discretionary role afforded judges in sentencing.” Schmidt, 220 Ariz. 563, ¶ 11, 208 P.3d at 217.
6 Blakely and, therefore, did not consider any issues beyond the construction and meaning of
the statutory language in reaching our conclusion. See generally Soto-Perez, 192 Ariz. 566,
968 P.2d 1051. In light of Schmidt and our application of it here, we have no choice but to
conclude Soto-Perez’s holding that the catch-all aggravator may alone be used to increase
a defendant’s statutory maximum sentence is no longer correct, and we therefore overrule
that case.
Disposition
¶11 For the reasons set forth above, we grant review, vacate Perrin’s substantially
aggravated sentence for manslaughter, vacate our prior memorandum decision, and remand
the case to the trial court for resentencing in accordance with this opinion.
____________________________________ GARYE L. VÁSQUEZ, Judge
CONCURRING:
____________________________________ PETER J. ECKERSTROM, Presiding Judge
____________________________________ PHILIP G. ESPINOSA, Judge