IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

SCOTT DOUGLAS NORDSTROM,

Petitioner,

v.

HON. MICHAEL CRUIKSHANK, Judge

of the Superior Court of the State of

Arizona, in and for the County of Pima,

Respondent,

and

THE STATE OF ARIZONA,

Real Party in Interest. )

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) 2 CA-SA 2006-0056

DEPARTMENT A

O P I N I O N

SPECIAL ACTION PROCEEDING

Pima County Cause No. CR-55947

JURISDICTION ACCEPTED; RELIEF GRANTED

David Darby

Barbara LaWall, Pima County Attorney

By Taren M. Ellis and Rick Unklesbay Tucson

Attorney for Petitioner

Tucson

Attorneys for Real Party in Interest

H O W A R D, Presiding Judge. SEP 14 2006 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

¶1 In this special action, we are asked to determine the scope of petitioner Scott

Douglas Nordstrom’s sentencing trial, which is scheduled as a result of our supreme court’s

decision in State v. Nordstrom

, 206 Ariz. 242, ¶ 28, 77 P.3d 40, 46 (2003) ( Nordstrom II ),

that vacated six death sentences the respondent judge had imposed on Nordst r om’s firstdegree murder convictions and remanded the case for res entencing by a jury pursuant to

A.R.S. §§ 13-703 and 13-703.01. The respondent judge ruled that Nordstrom was only

entitled to have a jury weigh the aggravating and mitigating circumstances in determining

whether he should be sentenced to death for murdering the six victims and that he was not

entitled to have the jury determine the existence of the aggravating circumstances. For the

reasons stated below, we accept jurisdiction of this special action and grant relief.

BACKGROUND

¶2 In December 1997, a jury found Nordstrom guilty of first-degree murder and

various other offenses in connection with events that had occurred in Tucson on May 30,

1996, and June 13, 1996, at the Moon Smoke Shop and the Firefighters’ Union Hall. S tate

v. Nordstrom

, 200 Ariz. 229, ¶¶ 1-4, 6, 8, 25 P.3d 717, 724-26 (2001) ( Nordstrom I ).

After a sentencing hearing, the respondent judge found beyond a reasonable doubt that

aggravating circumstances existed as to the murder convictions under § 13-703(F)(1) (“The

defendant has been con victed of another offense in the United States for which under

Arizona law a sentence of life imprisonment or death was im p osable.”), § 13-

703(F)(5) (“The defendant committed the offense as consideration for the receipt, or in

expectation of the receipt, of anything of pecuniary value.”), and § 1 3-703(F)(8) (“The3

defendant has been convicted of one or more other homicides

. . . that were committed

during the commission of the offense.”). The respondent found no mitigating circumstances

existed that were “sufficiently substantial to call for leniency,” § 13-703(E), and sentenced

Nordstrom to death on the murder convictions. The supreme court affirmed the convictions

and the death sentences. Nordstrom I , 200 Ariz. 229, ¶ 99, 25 P.3d at 745.

¶3 In 2002, t h e United States Supreme Court reversed the Arizona Supreme

Court’s decision in State v. Ring

, 200 Ariz. 267, 25 P.3d 1139 (2001) ( Ring I ), and held

in Ring v. Arizona

, 536 U.S. 584, 588, 609, 122 S. Ct. 2428, 2432, 2443 (2002) ( Ring II ),

that this state’s capital sentencing statutes were unconstitutional because they violated a

defendant’s right to a jury trial as guaranteed by the Sixth Amendment to the United States

Constitution. The Supreme Court stated that, “[b]ecause Arizona’s enumerated aggravating

factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth

Amendment requires that they be found by a jury.” I d

. at 609, 122 S. Ct. at 2443, quoting

Apprendi v. New Jersey

, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000).

Thereafter, the Arizona Supreme Court consolidated the cases in which defendants had been

sentenced to death under the invalidated statutory scheme and in which the supreme court

had not yet issued its mandate. S tate v. Ring

, 204 Ariz. 534, ¶¶ 5-6, 65 P.3d 915, 9 2 5

(2003) ( Ring III ). The supreme court concluded in R ing II I that “Arizona’s failure to

require a trial judge to submit the aggravating circumstance element of capital murder to a

jury does not constitute structural error.” Id . ¶ 53. Consequently, the court determined it

would review the sentences of such defendants for harmless error. Id

.1 On the (F)(8) factor, the supreme court reasoned that, “[b]ecause the a rmed

robberies and murders at both the Moon Smoke Shop and the Firefighters’ Union Hall were

committed during a continuous course of criminal conduct at each place, the murders were

temporally, spatially, and motivationally related.” N ordstrom II , 206 Ariz. 242, ¶ 16, 77

P.3d at 45. Consequently, the court concluded that “‘any error as to the (F)(8) aggravator

was harmless because we believe that no reasonable jury could have found differently than

the trial judge.’” I

d., quoting State v. Tucker

, 205 Ariz. 157, ¶ 66, 68 P.3 d 110, 122

(2003).

4 ¶4 Among the cases the supreme court reviewed was Nordstrom’s. Nordstrom

II , 206 Ariz. 242, ¶ 3, 77 P.3d at 42. The court concluded there was no reason to disturb

the respondent judge’s findin g that the aggravating circumstance under §13-703(F)(1)

existed based on the supreme court’s decision in Ring III

. N ordstrom II

, 202 Ariz. 242, ¶ 7,

77 P.3d at 43. In R ing III

, the supreme court said, it had held the Sixth Amendment “does

not require a jury to determine the existence of an (F)(1) factor.” N ordstrom II , 206 Ariz.

242, ¶ 6, 77 P.3d at 43, citing Ring III , 204 Ariz. 534, ¶ 55, 65 P.3d at 937. As for the

circumstances under § 13-703(F)(5) and (F)(8), the court found in Nordstrom II

, based on

the record before it, t hat “no reasonable jury would have failed to find the aggravating

factors set forth in [these subsections] proven beyond a reasonable doubt.” 206 Ariz. 242,

¶ 17, 77 P.3d at 47. 1 But, the court concluded, “because some of the findings with respect

to the mitigating factors rested on an assessment of the credibility of witnesses,” the case had

to be remanded for resentencing. Id . ¶ 18.

¶5 Specifically, the court stated it could not find “beyond a reasonable doubt that

a jury would not have weighed this evidence differently than did the trial judge.” And, the

court observ ed, “a different finding as to the mitigating circumstances could affect the2 Apparently, the proceedings had been stayed pending the outcome of the “residual

doubt” issues raised in Oregon v. Guzek , ___ U.S. ___, 126 S. Ct. 1226, 1231-32 (2006),

which was then before the Supreme Court.

5 determination whether the mitigating circumstances are ‘sufficiently substantial to call for

leniency.’” I

d

. ¶ 27, quoting § 13-703(E) . Consequently, the court vacated the death

sentences and remanded the matter to the respondent judge “for resentencing by a jury under

A.R.S. sections 13-703 and -703.01 (Supp. 2002),” id. ¶ 28, the stat utes the legislature

amended after the United States Supreme Court invalid ated Arizona’s capital sentencing

scheme in Ring II

. S ee 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 7; S tate v.

Viramontes

, 204 Ariz. 360, n.1, 64 P.3d 188, 189 n.1 (2003) (acknowledging amendments

to death penalty statutes were in response to Ring II ).

¶6 In December 2005, Nordstrom filed a pro se memorandum, which appointed

counsel adopted and supplemented about a month later. 2 Nordstrom maintained in these

memoranda that, based on the express terms of § 13-703.01, particularly subsections (N),

(O), and (P), as well as Rule 19.1(c), Ariz. R. Crim. P., 17 A.R.S., he was “entitled to a full

and fair aggravation resentencing proceeding where the state is required to prove [to a jury]

any noticed aggravators beyond a reasonable doubt and where he can challenge, rebut, and

defend against these noticed aggravators.” In its response, real party in interest the State of

Arizona asserted that, because the (F)(1) factor is exempt from the requirements of Ring II

and because Nordstrom had conceded in his appeal in Nordstrom II that a resentencing on

the (F)(1) factor was not required given our supreme court’s decision in R ing III

, s ee

Nordstrom II

, 202 Ariz. 242, ¶ 7, 77 P.3d at 43, the jury did not need to determine whether3 These cases hold that a defendant cannot be sentenced to death for first-degree

murder based on felony murder unless the defendant killed the victim, attempted to kill the

victim, or intended that lethal force be employed, Enmund v. Florida

, 458 U.S. 782, 797,

102 S. Ct. 3368, 3376 (1982), or was a major participant in the underlying felony and acted

with reckless indifference to human life. Tison v. Arizona , 481 U.S. 137, 158, 107 S. Ct.

1676, 1688 (1987).

6 any aggravating circumstances existed. One factor, the state argued, rendered Nordstrom

death eligible. The state conceded that, because some of the murder convictions were based

on the felony-murder doctrine rather than premeditated murder, “a jury must find whether

[Nordstrom] qualifies for the death penalty under the Enmund-Tison line of cases.” S ee

Tison v. Arizona

, 481 U.S. 137, 107 S. Ct. 1676 (1987); Enmund v. Florida

, 458 U.S. 782,

102 S. Ct. 3368 (1982). 3 It further conceded the jury must weigh the aggravating factors

against any mitigating fact ors found and then determine whether Nordstrom should be

sentenced to death.

¶7 After Nordstrom filed his reply and a hearing was held, the respondent judge

adopted the state’s proposed procedure for the sentencing trial. The respondent found that

the aggravating factors under (F)(1), (F)(5), and (F)(8) “are inherent in the jury’s verdict and

thus were proven beyond a reasonable [doubt] to the original jury.” The respondent further

sta ted that the jury would be informed of the convictions, that counsel would then state

generally that the aggravating factors under (F)(1), (F)(5), and (F)(8) exist, and that the jury

was “to weigh mitigating factors against other facts and determine the sentence.”

Furthermore, the respondent ruled, the jury would conduct an Enmund-Tison analysis and

“then proceed to the aforementioned mitigat ion phase and the weighing process.” The7

respondent judge set the case for a sentencing trial on January 17, 2007. Nordstrom filed

this petition for special action, claiming he is entitled to a sentencing trial held in accordance

with §§ 13-703 and 13-703.01 in which a jury must determine whether the aggravating

circumstances alleged exist before considering any evidence in mitigation and determining

whether he should be sentenced to death.

SPECIAL ACTION JURISDICTION

¶8 Special action jurisdiction is appropriate when the remedy by appeal is not

equally plain, speedy, or adequate. Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. Admittedly,

Nordstrom could challenge by appeal any rulings relating to the upcoming sentencing trial

after it has occurred. See A.R.S. § 13-4033(A)(3); see State v. Schackart , 190 Ariz. 238,

245, 947 P.2d 315, 322 (1997). “[T]he availability of an appeal[, however,] does not

foreclose the exercise of this court’s discretion to accept jurisdiction.” A riz. Dep’t of Pub.

Safety v. Superior Court

, 190 Ariz. 490, 493, 949 P.2d 983, 986 (App. 1997). The remedy

by appeal may be inadequate, such as here, where the sentencing trial would proceed in an

incorrect manner. “[T]he issue raised here [might] recur in fut ure cases, and judicial

economy, not to mention the time and expense incurred by [conducting the trial incorrectly],

is best served by addressing the issue now, while it is be fore us.” S onoran Desert

Investigations, Inc. v. Miller , 479 Ariz. Adv. Rep. 7, ¶ 3 (Ct. App. June 2, 2006).

¶9 Additionally, we are being asked to int erpret and apply §§ 13-703 and 13-

703.01. The interpretation and application of a statute is a question of law subject to this

court’s de novo review, and review of such issues by sp e cial action is particularly8

appropriate. S ee ChartOne, Inc. v. Bernini

, 207 Ariz. 162, ¶¶ 8, 14, 83 P.3d 1103, 1106-08

(App. 2004) (interpretation of state constitution and civil rule of procedure is question of

law appropriately reviewed by special action). Moreover, given the number of cases that our

supreme court remanded for resentencing in light of Ring II and the likel ihood that the

issues raised here or substantially similar issues will arise again, the meaning of these statutes

and the scope of a resentencing hearing under them are “question[s] of statewide importance

to the judiciary and the litigants who come before it in [cri minal] matters.” A nderson v.

Contes

, 212 Ariz. 122, ¶ 4, 128 P.3d 239, 241 (App. 2006); see also O’Brien v. Escher

,

204 Ariz. 459, ¶ 3, 65 P.3d 107, 108 (App. 2003) (cases presenting purely legal issues of

first impression and statewide importance and that could readily recur in other cases are

particularly appropriate for special action r e view). For all of these reasons, we accept

jurisdiction of this special action.

DISCUSSION

¶10 As we previously stated, the legislature amended Arizona’s death penalty

statutes in 2002 in response to Ring II. See 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1,

§§ 1, 3. Effective August 1, 2002, the amended statutes require the trier of fact to find

whether any aggravating circumstances alleg ed under § 13-703(F) exist and whether to

impo se the death penalty. §§ 13-703, 13-703.01. In this case, the state alleged the

aggravating factors set forth in § 13-703(F)(1), (F)(5), and (F)(8). S ee ¶ 2, supra

. Not only

did the supreme court specify in Nordstrom II that Nordstrom is to be sentenced pursuant

to the amended statutes, 206 Ariz. 242, ¶ 28, 77 P.3d at 46, but the legislature expressly9

made the amended statutes applicable to all sentencings and resentencings conducted after

August 1, 2002, the effective date of the statute. 2002 Ariz. Sess. Laws 5th Spec. Sess., ch.

1, §§ 3, 7(A). Moreover, neither Nordstrom nor the state disputes that the amended statutes

apply to the upcoming sentencing trial.

¶11 Nevertheless, insisting the respondent judge’ s ruling is correct, the state

maintains that the aggr avating circumstance under (F)(1) need not be decided by a jury,

given the supreme court’s decisions in Ring I II and Nordstrom II , and Nordstrom’s

concession in Nordstrom II that a “resentencing on this aggravating factor is not required.”

Nordstrom II

, 206 Ariz. 242, ¶ 7, 77 P.3d at 43. The state further claims that a new

sentencing jury need not determine the (F)(5) factor because, as the court noted in

No rdstrom II , Nordstrom admitted at the first sentencing hearing the state had proved

beyond a reasonable doubt that he had committed the offenses for pecuniary gain. 206 Ariz.

242, ¶ 11, 77 P.3d at 44. And, as the state notes, based on the purported admission and the

evidence the judge had heard, presumably at the first sentencing hearing, the supreme court

had c oncluded that no reasonable jury could fail to find Nordstrom had committed the

offenses for pecuniary gain. I d

. ¶ 11. With respect to the factor in (F)(8), the state again

relies on the supreme court’s conclusion in Nordstrom II that “‘no reasonable jury could

have found differently than the trial judge’” did, given the evidence before it. 206 Ariz. 242,

¶ 16, 77 P.3d at 45, quoting State v. Tucker

, 205 Ariz. 157, ¶ 66, 68 P.3d 110, 122 (2003).

¶12 Nordstrom relies primarily on the statute to refute the state’s contentions and

the respondent judge’s ruling. He also claims the respondent judge exceeded his authority10

or is threatening to proceed in excess of his authority and h as abused his discretion by

essentially directing a verdic t in favor of the state based, in part, on the respondent’s

conclusion that the (F)(1), (F)(5), and (F)(8) factors are inherent in the jury’s verdicts on

Nordstrom’s guilt.

¶13 Section 13-703(A) provides that a person convicted of first-degree murder

shall be sentenced in accordance with the procedures set forth in § 13-703.01. The latter

statute describes two phases: the aggravation phase and the penalty phase. § 13-703.01(C),

(D); see also Ariz. R. Crim. P. 19.1(c), (d), 17 A.R.S. (providing procedure for conducting

“aggravation proceeding” and “penalty hearing” in capital cases). Subsection (C) of § 13-

703.01 provides that the trier of fact that finds a defendant guilty of first-degree murder must

then “immediately determine whether one or more alleged aggravated circumstances have

been proven.” Subsection (N) states, however, that, “[i]f the sentence of a person who was

sentenced to death is overturned, the person shall be resentenced pursuant to this section

by a jury that is specifically impaneled for this purpose as if the original sentencing had not

occurred.” And subsection (O) states:

In any case that requires senten cing or resentencing in

which the defendant has been convicted of an offense that is

punishable by death and in which the trier of fact was a judge

or a jury that has since been discharged, the defendant shall be

sentenced or resentenced pursuant to this section by a jury that

is specifically impaneled for this purpose.

Subsection (P) instructs that “[t]he trier of fact shall make all factual determinations

required by this section or the Constitution of the United S tates or this state to impose a

death sentence.”11

¶14 We are asked to decide whether the respondent judge’s order is a permissible

implementation of the sentencing process required by §§ 13-703 and 13-703.01. “Our

primary goal in construing a statute is to determine and give effect to the legislature’s intent.”

State v. Oaks , 209 Ariz. 432, ¶ 10, 104 P.3d 163, 165 (App. 2004); s ee also State v.

Korzep

, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). “‘When a statute is clear and

unambiguous, we apply its plain language and need not enga ge in any other means of

statutory interpretation.’” S tate v. Arellano

, No. CV-05-0397-SA, ¶ 9, 2006 WL 1412884,

*3 (Ariz. May 24, 2006), quoting Kent K. v. Bobby M.

, 210 Ariz. 279, ¶ 14, 110 P.3d 1013,

1017 (2005); see also State v. Sepahi

, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735 (2003) (“[A]

statute’s language is the most reliable index of its meaning.”). A statute is ambiguous “if

there is unce rtainty about the meaning or interpretation of [its] terms.” H ayes v.

Continental Ins. Co. , 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994). We find the relevant

language in these statutes plain and unambiguous, and the state does not argue otherwise.

Therefore, in order to give effect to the legislature’s intent, we must “apply [the statutes] as

written.” Callan v. Bernini , 475 Ariz. Adv. Rep. 28, ¶ 11 (Ct. App. Mar. 22, 2006).

¶15 As we previously noted, our supreme court in Nordstrom II expressly directed

that Nordstrom be resentenced pursuant to §§ 13-703 and 13-703.01 as amended in 2002.

206 Ariz. 242, ¶ 28, 77 P.3d at 46. The court did not limit in any way the sentencing jury’s

function to merely weighing the evidence in mitigation against the aggravating circumstances

rather than fully performing its statutorily prescribed role. Such an approach essentially

eliminates the aggravation phase of the sentencing proceeding required un der § 13-12

703.01(C) and allows Nordstrom only the penalty phase under § 13-703.01(D). It relieves

the state of its statutory burden of provi ng to the jury beyond a reasonable doubt the

aggravating

circumstances alleged pursuant to §§ 13-703(F)(1), (F)(5), and (F)(8). The

statutes plainly dictate that a capital defendant such as Nordstrom, whose sentence of death

has been overturned on appeal, must be resentenced in accordance with §§ 13-703 and 13-

703.01 “by a jury that is specifically imp a neled for this purpose as if the original

sentencing had not occurred .” § 13-703.01(N) (emphasis added). Nordstrom is entitled

to be resentenced as if he were being sentenced under the statute for the first time, albeit that

the sentencing jury is not the same jury that found him guilty of the offenses.

¶16 Nothing in the new statutory scheme permits a trial judge to direct a verdict

against a defendant on alleged aggravating circumstances based on e vidence presented at

trial. Yet that is the practical effect of the respondent judge’s ruling that the aggravating

circumstances under (F)(1), (F)(5), and (F)(8) “are inherent in the jury’s verdict and thus

we re proven beyond a reasonable [doubt] to the original jury.” And, although R ing III

addressed the issues raised there in the context of the constitutional requirements, the court

held, in any event, that “the pecuniary gain[, (F)(5),] and multiple homicide[, (F)(8),]

aggravators usually are not implicit in a jury’s verdict.” 204 Ariz. 534, ¶ 74, 65 P.3d at 940.

Furthermore, although the amended statute permits the state’s proof in the aggravation phase

to be “based on evidence that was presented at the trial or at the aggravation phase,” § 13-

703.01(E), the determination of whether the aggravating circumstances have been proven

beyond a reasonable doubt is still for the trier of fact to make. S ee §§ 13-703(B), 13-13

703.01(D), (P). Based on Nordstrom’s request and the supreme court’s directive in

Nordstrom II

, the trier of fact must be a jury. The statute provides no support for the notion

that the judge may make these decisions based on evidence he or she heard either at the trial

on guilt or innocence or during the aggravation phase of the sentencing trial.

¶17 The state relies heavily on the supreme court’s decision in Nordstrom II for

two propositions it claims support the respondent judge’s order that the sentencing jury need

not find the (F)(1) factor (prior conviction of an offense for which “life imprisonment or

death was imposable”). First, the state correctly points out that, in N ordstrom II

, the court

acknowledged that “the (F)(1) aggravating factor falls outside the Ring II mandate.” 206

Ariz. 242, ¶ 17, 77 P.3d at 45. Specifically, the state relies on the court’s statement that

“the Sixth Am

endment does not require a jury to determine the existence of an (F)(1)

factor.” I d

. ¶ 6. That statement was based on the supreme court’s decision in R ing III

. I d.;

see also Ring III , 204 Ariz. 534, ¶ 55, 65 P.3d at 937. But R ing III and the portion of

Nordstrom II on which the state relies merely addressed the constitutional r equirements

under the Sixth Amendment right to a jury trial, not the requirements of Arizona’s new

statutory scheme for capital sentencing. Although these authorities unequivocally establish

that the federal constitutio n does not guarantee a defendant the right to have a jury

determine the existence of an aggravating circumstance under (F)(1), nothing in § 13-703

or § 13-703.01 exempts the state from proving that circumstance to a jury. To the contrary,

the legislature has specifically required a jury to make any “factual determinations required14

by this section or the Constitution of the United States or t his state to impose a death

sentence.” § 13-703.01(P) (emphasis added).

¶18 Second, the state also insists Nordstrom waived the right to have a jury decide

the existence of the (F)(1) factor, relying, in part, on the portion of Nordstrom II in which

our supreme court acknowledged that waiver. The court stated:

Other than arguing that a jury must find all aggravating factors,

an argument we rejected in Ring III

, 204 Ariz. at 552-55,

¶¶ 44-52, 65 P.3d at 933-36, No r dstrom concedes that under

our decision in R ing III

, “remand for resentencing on this

aggravating factor is not required.” Accordingly, we will not

disturb the trial court’s finding that the (F)(1) aggravating factor

was proven.

206 Ariz. 242, ¶ 7, 77 P.3d at 43. But, as Nordstrom clarified during oral argument in this

special actio n, that concession must be viewed in the context in which it was

made—addressing the question of what was constitutionally required. In light of the court’s

decision in Ring III and the United States Supreme Court’s decision in Almendarez-Torres

v. United States , 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222 (1998), Nordstrom had no

choice but to conce de that issue. He made no such concession about a new statutory

scheme that had not yet been applied to him.

¶19 Accordingly, we reject the state’s claim that the (F)(1) factor is exempt from

t he statute’s requirement that the trier of fact determine the existence of all aggravating

circumstances. § 13-703.01(P). It follows that we necessarily reject the state’s related

contention that, because the respondent judge could and did make the finding on that

circumstance, “there is no need for an aggravation phase and the trial court can conduct a15

penalty phase.” If the state wants the jury to consider an aggravating circumstance in

sentencing a defendant, our current statutory scheme requires the jury to find it exists.

¶20 We similarly reject the state’s argument that Nordstrom waived any claim on

the (F)(5) circumstance when he admitted at the first sentencing hearing that the state had

“proved the pecuniary gain aggravating factor beyond a reasonable doubt.” N ordstrom II

,

206 Ariz. 242, ¶ 11, 77 P.3d at 44. The court in N ordstrom II added, “[i]n Ring III

, we

held that when a ‘defendant stipulates, confesses or admits to facts sufficient to establish an

aggravating circumstance, we will regard that factor as established.’” 206 Ariz. 242, ¶ 11,

77 P.3d at 44, quoting Ring III , 204 Ariz. 534, ¶ 93, 65 P.3d at 944. The court

consequently concluded, “no reasonable jury, hearing the same evidence as the judge, could

find that Nordstrom did not commit the murders for pecuniary gain. Accordingly, any R ing

II violation was harmless beyond a reasonable doubt.” 206 Ariz. 242, ¶ 11, 77 P.3d at 44.

Nordstrom’s admission, however, had been made only as to the sufficiency of the evidence

to support the respondent judge’s finding that he had committed the offense for pecuniary

gain, an aggravating circumstance under (F)(5). Nordstrom did not concede that a jury

would make the same finding. More importantly, he did not waive the right under the

statute to have a jury make that decision, nor could he have, given that the statute did not

exis t when Nordstrom was sentenced. C f. State v. Brown

, 212 Ariz. 225, ¶¶ 14-18, 129

P.3d 947, 951 (20 06) (pre- B lakely waiver of jury trial did not waive the right to a jury

determination of aggravating circumstances).16

¶21 Finally, we reject the state’s suggestion that, because the court in Nordstrom

II found harmless beyond a reasonable doubt the fact that a judge, rather than a jury, had

decided whether the alleged aggravating circumstances existed, that finding has a conclusive,

if not preclusive, effect on the future sentencing proceeding to be he ld pursuant to the

statutes. Again, the court’s finding must be viewed in the constitutional context in which

it was made—examining what the Sixth Amendment does or does not require.

¶22 As it did with all pending cases in which a ju dge rather than a jury had

determine d the existence of the aggravating circumstances under § 13-703, the court

conducted a harmless error review in Nordstrom II . 206 Ariz. 242, ¶¶ 3, 19, 13, 77 P.3d

at 42, 44. That review was conducted for the sole purpose of determining whether the case

had to be remanded for resentencing in light of the constitutional violations, nothing more.

Nothing in Nordstrom II suggests that repeating those sentencing errors, however harmless,

would be acceptable in the event the case were remanded for resentencing as this case was.

To the contrary, the court vacated the sentences on the murder convictions and remanded

the case for resentencing pursuant to §§ 13-703 and 13-703.01. 206 Ariz. 242, ¶ 28, 77

P.3d at 46. It neither qualified its order of remand nor limited in any respect the scope of the

future sentencing proceeding to be conducted under the amended statute. And, based on

the plain language of the statute, the resentencing must proceed as if Nordstrom had never

been sentenced before. See § 13-703.01(N).

¶23 We find the respondent judge “has proceeded or is threatening to proceed

without or in excess of jurisdiction or legal authority” and grant special action relief. See17

Ariz. R. P. Spec. Actions 3(b). Therefore, we grant relief by reversing the respondent

judge’s April 17, 2006, order on the scope of the sentencing proceeding and direct the

respondent to conduct the proceeding in a manner consistent with §§ 13-703 and 13-703.01.

__________________ __________________ JOSEPH W. HOWARD, Presiding Judge

CONCURRING:

____________________________________ JOHN PELANDER, Chief Judge

____________________________________ PETER J. ECKERSTROM, Judge