State v. Harrison

985 P.2d 486, 195 Ariz. 1, 306 Ariz. Adv. Rep. 30, 1999 Ariz. LEXIS 84

• Court: Arizona Supreme Court
• Decided: June 18, 1999
• Docket: CR-98-0381-PR
• Status: Published

Opinions

OPINION

FELDMAN, Justice.

¶ 1 Division One of the court of appeals remanded this case for resentencing, holding that the trial judge failed to comply with A.R.S. § 13-702(B), which requires the judge to state “on the record at the time of sentencing” the reasons for not imposing the presumptive sentence. The court held that because the error was structural, a harmless error analysis could not be applied. State v. Harrison, 195 Ariz. 28, 985 P.2d 513 (App. 1998). Dissenting, Judge Noyes concluded that remand was unnecessary because a harmless error analysis should be applied. Id. at 37, 985 P.2d at 521-522. The majority’s view was based on a 1983 Division One opinion, State v. Holstun, 139 Ariz. 196, 677 P.2d 1304 (App.1983). In 1986, however, Division Two followed the Holstun dissent and held that the failure to state aggravating circumstances on the record could be harmless. See State v. Ybarra, 149 Ariz. 118, 120, 716 P.2d 1055, 1057 (App.1986). The Ybarra court concluded that because the sentencing transcript “fully supports a mitigated sentence,” the error was technical and was “harmless beyond a reasonable doubt.” Id.

¶ 2 We granted review to resolve the conflict between Holstun and Ybarra. See Rule 23(c)(3), Ariz.R.CivApp.P. We have jurisdiction under article VI, § 5(3) of the Arizona Constitution.

FACTS

¶ 3 Elbert Harrison, Jr. (Defendant) passed a highway patrol motorcycle officer at a speed of 100 miles per hour, then swerved and left the highway, pursued by the officer. After running a red light at high speed, Defendant finally came to a stop, left his car, and charged the officer, yelling obscenities and threatening injury. When the officer drew his pistol, Defendant stopped but refused to comply with the officer’s instructions, instead charging a second time. Despite having been hit with pepper spray, Defendant continued to threaten and disobey the officer. He managed to return to his ear, attempted to run over the officer, and then fled. Again pursued, Defendant reached a dead end, left his vehicle, and ran. He was finally captured by other police officers who had joined the pursuit. After resisting, Defendant was taken to a police facility, where he became even more violent and attacked a group of officers. Defendant was eventually charged with four felonies — one count of unlawful flight, and three counts of aggravated assault against police officers. He was tried and convicted on all counts.

¶ 4 At sentencing, the prosecutor requested aggravated consecutive sentences amounting to almost ten years. The probation officer recommended aggravated consecutive sentences totaling seven and one-half years. The trial judge imposed an aggravated sentence of three years for the flight charge (a class 5 felony) and an aggravated sentence of 2.25 years¹ for each of the three aggravated assault charges (class 6 felonies), but made all sentences concurrent. Thus Defendant’s sentence totaled only three years.

¶ 5 The trial judge made the following comments at the sentence hearing:

I’ve considered all of the factors and find the following aggravating factors to be present: For your own sake, Mr. Harrison, please learn to speak in a different fashion when you interact with the community at large. You are probably the most foul mouthed individual I have ever met. Your conduct, your words when you were first pulled over at that bank, set off a chain of events which you are now paying for. If you had seen fit to control yourself, to control your anger and deal with the situation in the manner that is warranted, you would probably not be here or you would be here facing much lesser charges.

You engaged in conduct and you have acknowledged that you make no excuses for your behavior. And by that I will mean to say that you accept responsibility for your conduct. That is a good thing, Mr. Harrison, you should do that.

You fled from the police. I heard all the evidence and I’m not going to repeat it. There are, I guess, some disputes about what the evidence established, but you fled from the police when you should have stopped. After that the police tried to calm you down, and then I agree with your attorney, that the events once you were taken to the station transpired very quickly and I believe that the events there were out of control.

Mr. Harrison, whatever your beliefs are, whether they be personal, religious, moral, philosophical, I’m not here to question them and I’m not here to take issue with them, but you have to understand that you, like me, like your lawyer, Mr. Pappalardo, all of us live in a society where there are certain standards of behavior that are expected and we all have to follow them, Mr. Harrison. And that means respecting authority, whether it be the police or school teacher, whatever that represents, whatever we feel we have to do to get along as a civilized society. That’s what we’re here for. One cannot decide things are bad and then start beating up police officers because you think that that is, from your perspective and from your background, that that is the thing that’s called for. If all of us did it, we would be barbarians, Mr. Harrison. The streets would not be safe for our children.

I would hope that you listen to my words and the words that were spoken on your behalf by the Nation of Islam Captain and learn to channel your energy in a more positive and fruitful fashion. And if you don’t, Mr. Harrison, you’re going to prison for a long time. You’re going to be back here shortly and that’s where you’re going to end out. Beating up police officers, using the kind of language, behaving like you have, that’s not acceptable, Mr. Harrison. America, Arizona, is made up of diverse people. I believe people have degrees of tolerance but not to the extent that you have challenged by your behavior.

¶ 6 On appeal, Defendant argued that the trial judge failed to comply with § 13-702(B), which reads as follows:

B. The upper or lower term ... 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 upon any evidence or information introduced or submitted to the court prior to 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) lists fourteen factors that the sentencing judge should consider as aggravating circumstances and adds a final section: “[a]ny other factors which the court may deem appropriate to the ends of justice.” A.R.S. § 13-702(C)(15).²

¶7 The court of appeals held that the trial judge had not complied with § 13-702(B). The judge’s comments did “not include a finding of an aggravating factor under A.R.S. § 13-702(C). The only factor identified was Defendant’s flight from police. But flight was an element of one of the substantive crimes and is not a factor in aggravation....” Harrison, 195 Ariz. at 36, 985 P.2d at 520; see also State v. Tinajero, 188 Ariz. 350, 357, 935 P.2d 928, 935 (App. 1997) (element of crime cannot be used as § 13-702 sentencing factor unless under facts of case it “rises to a level beyond that which is merely necessary to establish an element of the underlying crime”). Because the Holstun rule forbids a harmless error analysis, the court remanded the case for resentencing.

¶ 8 Judge Noyes’ dissent pointed out that considering the facts of the case, the concurrent sentences were “manifestly lenient” and that the sentencing transcript showed that many aggravating and few mitigating factors existed. Nothing would be gained by remand because the judge’s reasons could be identified from the sentencing transcript. Thus Defendant had no real complaint, and by not objecting, the state waived any complaint it might have had. Harrison, 195 Ariz. at 37, 985 P.2d at 521-522.

¶ 9 While there is much to be said for the dissenter’s view, particularly from a pragmatic standpoint, we believe the majority was correct and that Holstun is the better rule.

¶ 10 The court’s words in Holstun bear repetition:

There is value in requiring every sentencing judge to say why he or she is enhancing or reducing a sentence [from the presumptive term]. Such a practice can bring to light the judge’s occasional misapprehension of the facts, it ensures that the judge is not relying on matters that are not properly aggravating or mitigating, and it tends to assure that judges will give thought to whether or not each sentence, even a stipulated one, is appropriate. In the case of an aggravated sentence it reaffirms the defendant’s individuality while driving home to him the severity of the consequence of his crime. In the case of a mitigated sentence it explains to the community why a convicted person is receiving a lesser sentence than others who violated the same law____ [T]he requirement that reasons for sentence be articulated helps ensure that the process does not become purely mechanical.

139 Ariz. at 197, 677 P.2d at 1305.

¶ 11 In addition to the reasons announced in Holstun, the judge’s articulation of factors will enable an appellate court to determine whether the trial judge has correctly considered the specific aggravating or mitigating circumstances. The victim, the defendant, and the public have the right to know why a particular sentence was imposed and that it was not arbitrary. These interests are not satisfied simply because an appellate court is able to infer what the judge might have thought. Nor are the purposes of the statute satisfied merely because appellate review reveals that the record supports the result. We believe § 13-702 requires the judge to tell the victim, the defendant, the appellate court, and the public what he or she considered as aggravation and mitigation and why he or she imposed an aggravated or mitigated sentence.

¶ 12 We do not raise form over substance and do not require a specific litany. Nor do we require formal findings or conclusions. Substantial compliance will suffice, but at a minimum this means articulating at sentencing the factors the judge considered to be aggravating or mitigating and explaining how these factors led to the sentenced imposed. Anything less would force the appellate courts — as well as the victim, the defendant, and the public — to speculate or infer. A harmless error rule would essentially affirm the judge’s decision so long as the record contains facts that may support the result. While such a rule may be appropriate for most situations, we believe it is inappropriate when a trial judge imposes an aggravated or mitigated sentence because § 13-702 expressly prohibits searching beyond the sentencing transcript for support for the imposed sentence.

¶ 13 Substantial compliance is, of course, different from harmless error analysis. Our dissenting colleagues list factors that could support the sentence imposed in this case. However, many of these factors are not found in the sentencing transcript but elsewhere in the record. Substantial compliance means that the factors supporting an aggravated or mitigated sentence must be in the sentencing transcript. To go beyond that would be to conduct a harmless error analysis. Today’s dissent also argues that “perhaps [the trial judge] should have ... [said] something like:” and goes on to articulate a list of aggravating factors under the catch-all section. Dissent, ¶ 27. We agree. The trial judge should have done just that. Had she done so, she might have substantially complied with the statute.

¶ 14 We have tried, unsuccessfully, to find substantial compliance under the facts of this case, but to do so would circumvent the purpose behind the statute. For example, the trial judge mentioned in sentencing that Defendant fled from the police. As the court of appeals noted, fleeing from the police is an element of the underlying crime and thus could not support a finding of aggravation unless it “rises to a level beyond that which is merely necessary to establish” the element. State v. Germain, 150 Ariz. 287, 290, 723 P.2d 105, 108 (App.1986). Examination of the sentencing transcript, without combing the entire record, reveals nothing about the circumstances surrounding the flight and nothing about how the trial judge considered the role of the flight. If she considered flight an aggravator without finding that it rose to a level beyond that necessary to establish the element of the crime, she erred. If she believed it rose to higher level, she did not articulate this in the sentencing record. The same applies to two other factors mentioned — anger and “beating up” police officers. Defendant was convicted of three counts of assault on police officers.

¶ 15 Nor is it possible to discern from this sentencing transcript what else the trial judge may have considered as an aggravating circumstance. In the end, the only possible aggravators that can be inferred from the sentencing transcript are: (1) foul language; (2) failure to control anger; (3) fleeing from police; and (4) attacking police officers. All of these, however, are essentially elements of the offenses with which Defendant was convicted — except foul language, and we have no way of knowing whether the trial judge actually considered this an aggravator. At best, the trial judge’s comments amounted to a lecture or scolding, not substantial compliance. We agree with the court of appeals that to find substantial compliance here would “effectively eliminate the requirement that trial courts articulate specific statutory factors when imposing aggravating sentences.” Harrison, 195 Ariz. at 36, 985 P.2d at 521.

¶ 16 Finally, the dissent here argues that our holding makes it “all but impossible for trial judges to” use the catch-all provision, which permits trial judges to consider in aggravation “[a]ny other factors which the court may deem appropriate to the ends of justice.” A.R.S. § 13-702(0(15). We respectfully disagree. Our holding in no way prohibits a trial judge from considering factors other than those listed in paragraphs one through fourteen. It simply requires a trial judge to articulate the catch-all factors considered “on the record at the time of sentencing.” A.R.S. § 13-702(B).

CONCLUSION

¶ 17 We approve the rule in Holstun and disapprove of the rule in Ybarra. We reject a harmless error analysis, though substantial compliance will suffice. As the court of appeals has said, it would be “better practice for a trial judge to state in the more precise terms of the statute” that he or she has found or considered “certain specific circumstances.” State v. Poling, 125 Ariz. 9, 11, 606 P.2d 827, 829 (App.1980). Not only is this better practice, it is required by the present statute. We therefore approve the court of appeals’ opinion and its order of remand for resentencing. Otherwise, this opinion will be applied prospectively only. See, e.g., State v. LeBlanc, 186 Ariz. 437, 439-40, 924 P.2d 441, 443-44 (1996) (applying reasonable efforts instruction in place of Wussler rule prospectively only); Collins v. Superior Court, 132 Ariz. 180, 189-91, 644 P.2d 1266, 1275-77 (1982) (applying inadmissibility of post-hypnosis testimony prospectively only).

CONCURRING: THOMAS A. ZLAKET, Chief Justice, and CHARLES E. JONES, Vice Chief Justice.

1 . We note, as did the court of appeals, that a discrepancy exists between the sentencing transcript and the sentencing minute entry regarding Count III. The sentencing transcript shows a sentence of 2.5 years while the minute entry shows 2.25 years.

2 . Similarly, § 13-702(D) contains a list of mitigating circumstances the judge shall consider, including a “catch-all” provision, and concludes with the following directions to the sentencing judge:

In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to call for the lesser term. If the court finds aggravating circumstances and does not find any mitigating circumstances, the court shall impose an aggravated sentence.