SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-06-0435-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 04-0508 

JACOB PRICE, ) 

 ) Maricopa County 

 Appellant. ) Superior Court 

 ) No. CR 2002-017550 

 )

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County

The Honorable Gregory H. Martin, Judge

VACATED IN PART AND REMANDED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One

213 Ariz. 550, 145 P.3d 647 (2006)

VACATED IN PART

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Randall M. Howe, Chief Counsel 

 Criminal Appeals Section 

 Nicholas D. Acedo, Assistant Attorney General

Attorneys for State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix

 By Thomas J. Dennis, Deputy Legal Advocate

Attorneys for Jacob Price

________________________________________________________________

B A L E S, Justice

¶ 1 We accepted review to determine whether the 

defendant’s sentence was aggravated in violation of Apprendi v. 
2

New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 

542 U.S. 296, 305 (2004), which hold that the Sixth Amendment 

affords a right to have a jury, rather than a judge, determine 

any fact, other than a prior conviction, that increases a 

defendant’s statutory maximum sentence. The trial court imposed 

an aggravated sentence based on facts that the State now 

concedes were not found in compliance with Apprendi and Blakely. 

We hold that the case must be remanded for resentencing and 

reject the State’s suggestion that, as a reviewing court, we 

should find other aggravating facts to uphold the flawed 

sentence. 

I. 

¶ 2 In August 2001, while driving an SUV, Jacob Price 

fired a gun at a car. After a police pursuit, Price escaped on 

foot. Police seized a handgun and methamphetamine from Price’s 

vehicle and later arrested him. A jury convicted him on six 

counts, including one count of drive-by shooting, Ariz. Rev. 

Stat. (“A.R.S.”) § 13-1209 (2001), a class two felony; three 

counts of aggravated assault of passengers in the car, A.R.S. § 

13-1204 (2001), class three felonies; and two other counts for 

class four felonies. 

¶ 3 The drive-by shooting count and the aggravated assault 

counts involved the discharge of a deadly weapon and thus 

subjected Price to enhanced sentencing ranges for dangerous 
3

felonies. See A.R.S. § 13-604(I) (2001).1

 Under A.R.S. § 13-

702(C) (2001), Price’s sentences were also subject to 

aggravation beyond their presumptive terms if there existed 

certain enumerated factors, such as the “presence of an 

accomplice,” A.R.S. § 13-702(C)(4), or “the defendant was 

previously convicted of a felony within the ten years 

immediately preceding the date of the offense,” A.R.S. § 13-

702(C)(11). The statute, which has since been amended, also 

included a “catch-all” provision allowing aggravation based on 

“[a]ny other factor the court deems appropriate to the ends of 

justice.” A.R.S. § 13-702(C)(18). 

¶ 4 The trial court aggravated Price’s sentences for the 

four dangerous felonies and imposed sentences totaling thirtyone years.2

 In aggravation the court found that Price was a 

“danger to the community and that he was by a preponderance of 

the evidence” guilty of an unrelated homicide for which he had 

 

1

 The class two dangerous felony had a presumptive term of ten 

and one-half years and a maximum term of twenty-one years. 

A.R.S. § 13-604(I). The class three dangerous felonies each had 

presumptive terms of seven and one-half years and maximum terms 

of fifteen years. Id. 

2

 The trial court imposed a fifteen-year sentence for the class 

two dangerous felony and eight-year sentences for each of the 

class three dangerous felonies. The sentences for one of the 

class three felonies and both of the class four felonies were 

concurrent with the sentence for the class two felony. 

 
4

been acquitted by a jury. Although the court did not identify 

the statutory basis for these aggravating factors, they can only 

be based on the “catch-all” provision, A.R.S. § 13-702(C)(18), 

because neither is an enumerated aggravator.3

 

¶ 5 The trial court’s belief that Price had committed the 

unrelated homicide significantly influenced the sentencing. 

When Price objected to the court’s considering conduct for which 

he had been acquitted, the judge said that if the law barred him 

from relying on the homicide, he would be inclined to sentence 

Price differently. Price did not, however, object to the judge, 

rather than a jury, finding the aggravating facts. 

¶ 6 On appeal, Price argued that his sentence was 

aggravated beyond the presumptive term in violation of the 

Apprendi/Blakely rule. The court of appeals affirmed the 

sentence but relied on a different rationale than had the trial 

court. Reviewing Price’s judicial record, which did not include 

any prior felony that would qualify as an enumerated aggravator 

under A.R.S. § 13-702(C)(11), but did include juvenile 

adjudications, the court of appeals concluded that the record 

“necessarily connotes” and the trial court thus properly found 

 

3

    A trial court should identify the statutory authority for each 

aggravating circumstance. See State v. Anderson, 211 Ariz. 59, 

60 ¶ 4 n.1, 116 P.3d 1219, 1220 n.1 (2005) (“In order to 

facilitate appellate review, trial judges should indicate on the 

record the specific statutory subsection under which a criminal 

sentence is imposed.”). 
5

that Price was a danger to the community. State v. Price, 213 

Ariz. 550, 553 ¶¶ 11-12, 145 P.3d 647, 650 (App. 2006). 

¶ 7 After we granted review, the State conceded that it 

was error to aggravate Price’s sentence based only on the nonjury determinations that Price had committed the unrelated 

homicide and was a danger to the community. Nonetheless, the 

State urges this Court to hold that Price’s juvenile 

adjudications fall within the Apprendi prior conviction 

exception and that they exposed Price to an aggravated sentence. 

II.

¶ 8 The Sixth Amendment requires that “[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.” 

Apprendi, 530 U.S. at 490. 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, 583 ¶ 17, 115 P.3d 618, 623 (2005). 

See Blakely, 542 U.S. at 303 (“[T]he ‘statutory maximum’ for 

Apprendi purposes is the maximum sentence a judge may impose 

solely on the basis of the facts reflected in the jury verdict 

or admitted by the defendant.” (emphasis in original)). 

¶ 9 Based on the jury verdict alone, Price faced maximum 
6

sentences of ten and one-half years for the class two felony and 

seven and one-half years for each of the class three felonies. 

See A.R.S. § 13-604(I). Thus, unless some aggravating factor 

constitutionally authorized an increase in Price’s maximum 

sentence, the judge erred when he sentenced Price to aggravated 

sentences of fifteen years for the class two felony and eight 

years each for the class three felonies. 

¶ 10 There are three ways an aggravating factor can 

constitutionally increase a maximum sentence. A jury can find 

the aggravating factor beyond a reasonable doubt. Apprendi, 530 

U.S. at 490. The defendant can waive his Apprendi rights by 

stipulating to “the relevant facts or consent[ing] to judicial 

factfinding.” Blakely, 542 U.S. at 310. Finally, either the 

judge or the jury can find “the fact of a prior conviction.” 

Apprendi, 530 U.S. at 490. 

 A. 

¶ 11 In this case, the jury did not find and Price did not 

admit any of the aggravating factors that subjected him to a 

sentence above the statutory presumptive sentence. As the State 

now concedes, the trial court erred when it increased Price’s 

sentence based on the judge’s findings that Price had committed 

an unrelated homicide and was a danger to the community. 

¶ 12 The United States Supreme Court’s recent opinion in 

Cunningham v. California makes the error clear. 549 U.S. __, 
7

127 S. Ct. 856 (2007). There, the trial court aggravated 

Cunningham’s sentence based upon, among other things, his 

“violent conduct, which indicated a serious danger to the 

community.” 127 S. Ct. at 860. The Court held that 

California’s sentencing law unconstitutionally allowed “the 

judge, not the jury, to find facts permitting an upper term 

sentence.” Id. at 871. The Court rejected the idea that there 

is a Sixth Amendment “distinction between facts concerning the 

offense, where Apprendi would apply, and facts concerning the 

offender, where it would not.” 127 S. Ct. at 869 n.14. 

¶ 13 The court of appeals believed that a finding of 

“danger to the community” could be made by the court under the 

prior conviction exception if the finding was inherent in the 

defendant’s criminal record, including juvenile adjudications. 

Price, 213 Ariz. at 553 ¶¶ 11-12, 145 P.3d at 650. Such 

reasoning, however, is foreclosed by the Supreme Court’s 

subsequent decision in Cunningham. Even if a court could 

conclude from Price’s judicial record that he is a danger to the 

community, this fact “concerning the offender,” 127 S. Ct. at 

869 n.14, cannot expose Price to an increased sentence unless it 

is submitted to a jury and proved beyond a reasonable doubt. 

B. 

¶ 14 While now conceding error with respect to the trial 

court’s finding of aggravating factors based on danger to the 
8

community and the unrelated homicide, the State nevertheless 

asks this Court to search the record for facts establishing a 

different Apprendi-compliant aggravating circumstance. 

¶ 15 If there is one Apprendi-compliant aggravating factor, 

“a defendant is exposed to a sentencing range that extends to 

the maximum punishment available under section 13-702.” 

Martinez, 210 Ariz. at 584 ¶ 21, 115 P.3d at 624. Once such a 

factor is properly found – by the jury, based on a defendant’s 

admission, or, for a prior conviction, by the court or the jury 

– “the Sixth Amendment permits the sentencing judge to find and 

consider additional factors relevant to the imposition of a 

sentence up to the maximum prescribed in that statute.” Id. at 

585 ¶ 26, 115 P.3d at 625. 

¶ 16 The trial court did not rely on any other factors to 

aggravate Price’s sentence. During sentencing, the trial court 

remarked that Price had a juvenile record that “was not the 

best” but expressly disclaimed considering that record as 

aggravating. The State argues that the court’s reference to 

Price’s juvenile record represents a “finding” that Price’s 

juvenile adjudications exist for purposes of the “catch-all” 

provision, A.R.S. § 13-702(C)(18), and that Apprendi’s prior 

conviction exception allows a judge, rather than a jury, to find 

the “fact” of juvenile adjudications. Thus, the State argues, 

the finding of the juvenile adjudications exposed Price to the 
9

aggravated term, giving the judge discretion to find and rely on 

other aggravating circumstances, such as Price’s dangerousness, 

in determining a sentence within the increased term. 

¶ 17 The State’s arguments are not persuasive. Contrary to 

the State’s suggestion, the trial court’s comment that Price had 

a juvenile record is not, by any stretch, a finding that 

juvenile adjudications should serve as an aggravating factor. 

Cf. A.R.S. § 13-702(B) (noting that upper term sentence “may be 

imposed only if the circumstances alleged to be in aggravation 

. . . are found to be true by the trial judge . . . and factual 

findings and reasons in support of such findings are set forth 

on the record at the time of sentencing."). In effect, the 

State suggests that even though the fact-finder did not validly 

find any aggravating factor that exposed a defendant to an 

aggravated sentence, a sentence should be upheld if an appellate 

court could find in the record some aggravating factor that 

could expose the defendant to a greater sentence and thus allow 

the sentencing judge to consider other facts not found by the 

jury in imposing a sentence within the higher range. 

¶ 18 The State misapprehends the role of a reviewing court 

in non-capital criminal sentencing. When a trial court 

improperly relies on an aggravating factor in violation of 

Apprendi and Blakely to subject a defendant to an increased 

maximum sentence, a reviewing court should not assume the role 
10

of a sentencing judge and seek out new aggravating 

circumstances, not found below, to save the constitutionally 

flawed sentence. 

¶ 19 Furthermore, to embrace the State’s argument would 

require us to address several important issues that are 

unnecessary to resolve the case before us. The State assumes 

that Arizona’s sentencing scheme permits the use of juvenile 

adjudications as an aggravating factor in adult sentencing and 

that juvenile adjudications fall within the Apprendi prior 

conviction exception. These propositions are far from 

established. Compare United States v. Tighe, 266 F.3d 1187, 

1194 (9th Cir. 2001) (holding that the prior conviction 

exception should not extend to non-jury juvenile adjudications), 

with United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) 

(holding that a non-jury “juvenile adjudication that . . . 

afforded all constitutionally-required procedural safeguards can 

properly be characterized as a prior conviction for Apprendi

purposes”). The State also assumes that an unenumerated 

aggravating circumstance under the “catch-all” provision in 

A.R.S. § 13-702(C)(18) can by itself authorize an increase in a 

defendant’s maximum sentence consistent with due process and the 

Sixth Amendment jury-trial right. Cf. State v. Gomez, 211 Ariz. 

494, 502 ¶ 36 n.8, 123 P.3d 1131, 1139 n.8 (2005) (declining to 

address constitutionality of finding aggravators not specified 
11

in the sentencing statute because defendant did not raise the 

issue); State v. Glassel, 211 Ariz. 33, 57 ¶ 103 n.18, 116 P.3d 

1193, 1217 n.18 (2005) (same). We decline to prematurely 

address these issues here. 

III.

¶ 20 Because Price did not object in the trial court to the 

judge finding facts necessary to increase his sentence, he 

cannot obtain relief unless he shows “both that fundamental 

error occurred and that the error caused him prejudice.” State 

v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115 P.3d 601, 608 (2005). 

¶ 21 By itself making the finding that Price was a danger 

to the community, the trial court denied Price “the right to 

have certain facts decided by a jury beyond a reasonable doubt,” 

in violation of the Fifth and Sixth Amendments to the United 

States Constitution. Id. ¶ 25. Because this unconstitutional 

procedure “went to the foundation of [Price’s] case,” id., there 

was fundamental error, even if we assume that that the “catchall” provision can ever serve as the aggravator that qualifies a 

defendant for a higher statutory maximum sentence. 

¶ 22 Price must also show that this error prejudiced him. 

Prejudice in these circumstances turns on “whether a reasonable 

jury, applying the correct standard of proof, could have failed 

to find the existence of each aggravator.” Id. ¶ 28. The trial 

judge found that Price was a danger to the community largely 
12

because he believed that Price had committed the separate 

homicide. We are not convinced that a reasonable jury would 

have necessarily concluded that Price committed this homicide 

(indeed, a jury previously acquitted him for that offense) or, 

independent of that killing, was a danger to the community. The 

judge, as noted above, said that absent his finding regarding 

the homicide, he probably would have sentenced Price 

differently. Price has established prejudicial error. 

IV. 

¶ 23 For the foregoing reasons, we affirm the convictions, 

vacate the opinion of the court of appeals in part, vacate the 

sentence, and remand to the trial court for resentencing. 

 _______________________________________

 W. Scott Bales, Justice

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________

Andrew D. Hurwitz, Justice 
13

H U R W I T Z, Justice, concurring 

¶ 24 The Court today correctly remands this case for 

resentencing. I join in its opinion without reservation. I 

write briefly to address a question that the Court pretermits, 

see Op. ¶ 19 – whether a court can constitutionally employ only 

an unenumerated aggravating circumstance under the “catch-all” 

provision in former A.R.S. § 13-702 (C) (18) (2001)4 to impose a 

sentence in excess of the statutory presumptive term. 

¶ 25 When an aggravating circumstance subjects a defendant 

to a sentence greater than one that could have been imposed 

because of the jury verdict alone, that circumstance is “the 

functional equivalent of an element of a greater offense than 

the one covered by the jury’s guilty verdict.” Apprendi v. New 

Jersey, 530 U.S. 466, 494 n.19 (2000); see also id. at 501 

(Thomas, J., concurring) (“The aggravating factor is an element 

of the aggravated crime.”). Apprendi and its progeny teach 

that, with certain exceptions not relevant to this case, the 

Sixth Amendment requires that a jury find this additional 

element. 

¶ 26 Price raised only Sixth Amendment arguments on appeal 

and the Court’s opinion thus appropriately turns only on the 

 

4

 The “catch-all” provision has been amended and renumbered 

as A.R.S. § 13-702 (C)(24) (Supp. 2007-08). For the reasons 

explained below, the concerns expressed in this concurrence 

apply equally to the amended provision. 
14

denial of a right to jury trial. But even when a jury trial is 

afforded, a serious Fourteenth Amendment due process problem is 

presented if the “catch-all” is the only factor that makes a 

defendant eligible for a sentence beyond the presumptive term. 

In that situation, one of the elements of the aggravated crime 

under former A.R.S. § 13-702(C)(18) is effectively “[a]ny other 

factor the court deems appropriate to the ends of justice.” 

Under the current “catch-all,” A.R.S. § 13-702 (C)(24), the 

“functional element” of the aggravated crime in such a case is 

“[a]ny other factor that the state alleges is relevant to the 

defendant’s character, background or to the nature or the 

circumstances of the offense.” 

¶ 27 A defendant has no notice, in advance of the conduct 

that exposes him to jeopardy for the “aggravated crime,” of 

precisely what is proscribed under the critical “catch-all” 

element. It is as if the criminal code had one punishment for 

theft, and another for aggravated theft, the former consisting 

of theft simpliciter and the latter consisting of the elements 

of the theft plus “anything else the court or the state may 

someday later find relevant.” 

¶ 28 A statute that fails to provide fair notice of 

precisely what acts are forbidden “violates the first essential 

of due process of law.” Connally v. General Constr. Co., 269 

U.S. 385, 391 (1926). When criminal penalties are at issue, 
15

“[a]ll are entitled to be informed as to what the State commands 

or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). 

Moreover, by failing to provide an explicit standard for a 

sentencing judge, the “catch-all” element would also seem to 

offend due process by allowing for arbitrary and discriminatory 

enforcement. See Smith v. Goguen, 415 U.S. 566, 575 (1974) 

(“Statutory language of such a standardless sweep allows 

policemen, prosecutors, and juries to pursue their personal 

predilections.”); Grayned v. City of Rockford, 408 U.S. 104, 

108-09 (1972) (“A vague law impermissibly delegates basic policy 

matters to policemen, judges, and juries for resolution on an ad 

hoc and subjective basis . . . .”). 

¶ 29 It is difficult for me to see how an element of a 

crime as loosely defined as the “catch-all” aggravator can 

satisfy these basic elements of due process when used as the 

only “functional element of a greater offense.”5

 However, 

 

5

 The due process problem I address is not presented when a 

clearly enumerated aggravator is found and the sentencing court 

also considers items falling under the “catch-all” in arriving 

at the sentence. In that circumstance, the “aggravated crime” 

consists of the statutory elements of the underlying offense 

plus the enumerated aggravator. Because the defendant is 

exposed to the greater sentence because of the enumerated 

aggravator, the “catch-all” in such a circumstance is simply a 

sentencing factor relevant to the judge’s discretion in deciding 

what sentence to impose within the constitutionally authorized 

range, not a functional element of the “aggravated crime.” See 
16

because Price did not raise this issue on appeal (and the State 

therefore has had no notice that the Court might address this 

issue), I am content to leave final resolution of this conundrum 

to another day. 

 _______________________________________

 Andrew D. Hurwitz, Justice 

CONCURRING: 

_______________________________________

Michael D. Ryan, Justice

 

State v. Martinez, 210 Ariz. 578, 585 ¶ 26, 115 P.3d 618, 625 

(2005).