IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Respondent,

v.

FREDRIC B. CLEERE,

Petitioner. )

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) 2 CA-CR 2003-0165-PR

DEPARTMENT B

O P I N I O N

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR200000433

Honorable Wallace R. Hoggatt, Judge

REVIEW GRANTED; RELIEF DENIED

Malanga Law Office

By Ralph Malanga and Joel A. Larson Bisbee

Attorneys for Petitioner

P E L A N D E R, Chief Judge.

¶1 T his case returns to us from our supreme court, which granted th e state’s

petition for review, denied the petition for review filed by petitioner Fredric Cleere, vacated

our prior opinion in this case, and remanded the case to this court for reconsideration in light FEB 28 2006 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO1 Under A.R.S. § 13-604(I), the presumptive prison term for Cleere’s conviction was

10.5 years, and the minimum and maximum terms were seven and twenty-one years. The

parties’ plea agreement, however, set a sentencing cap of fifteen years.

2 of State v. Martinez

, 210 Ariz. 578, 115 P.3d 618 (2005), and State v. Henderson , 210

Ariz. 561, 115 P.3d 601 (2005). S tate v. Cleere

, Nos. CR-05-0214-PR, CR-05-0221-PR,

2006 WL 40904 (Ariz. Jan. 4, 2006). In our prior opinion in this case, we granted review

of the trial court’s ruling on Cleere’s petition for post-conviction relief, filed pursuant to

Rule 32, Ariz. R. Crim. P., 17 A.R.S. And, in that opinion, we granted relief in part by

vacating Cleere’s sentence and remanding the case to the trial court for resentencing

pursuant to Blakely v. Washington

, 542 U.S. 296, 124 S. Ct. 2531 (2004). S tate v. Cleere

,

210 Ariz. 212, 109 P.3d 107 (App. 2005). Having previously vacated our prior opinion,

based on our reconsideration, we now replace it with this opini on, granting review but

denying relief.

BACKGROUND

¶2 Indicted for armed robbery and attempted murder, Cleere pled guilty in March

2001 to attempted murder, a class two felony and dangerous nature offense. Following a

mitigation hearing, the trial court sentenced him to a partially aggravated, fifteen-year prison

term. 1 He successfully sought post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P.,

17 A.R.S., on the ground th at the trial court erroneously had relied on his use of a

dangerous instrument, a box cutter, both to establish the dangerous nature of the offense in

order to enhance the range of sentence and then to aggravate his sentence. S ee A.R.S.2 Blakely applies to cases pending on direct review when Blakely was decided. See

State v. Ruggiero

, 211 Ariz. 262, n.3, 120 P.3d 690, 695 n.3 (App. 2005). Blakely also

applies to cases pending on review of a trial court’s denial of a pleading defendant’s “ofright” petition for post-conviction relief under Rule 32, Ariz. R. Crim. P., 17 A.R.S. S ee

State v. Ward , 211 Ariz. 158, ¶¶ 1, 7, 24, 118 P.3d 1122, 1124, 1125, 1129 (App. 2005).

3 §§ 13-604(I), 13-702(C)(2); see also State v. Glassel

, 211 Ariz. 33, n.17, 116 P.3d 1193,

1217 n.17 (2005).

¶3 At Cleere’s resentencing in September 2002, the trial court again imposed a

partially aggravated, fifteen-year sentence. Identifying Cleere’s use of a dangerous instrument

as the basis for enhancing his sentence, the court found as aggravating factors the infliction

of very serious physical injury to the victim, whose throat Cleere had slit with the box cutter;

the especially cruel manner in which Cleere had committed the o ffense; his having

committed it for pecuniary gain; and the serious emotional and mental harm suffered by the

victim. The trial court also found as mitigating factors Cleere’s “clean record,” “peaceable

behavior over 36 years before this happened,” and “expressed remorse.”

¶4 Cleere then filed a second Rule 32 petition, again challenging his sentence.

C laiming the trial court had relied on improper aggravating factors and had abused its

discretion by imposing a $19,250 surcharge in addition to a $25,0 00 fine, Cleere again

sought to be resentenced. The trial court granted partial relief by vacating the surcharge but

otherwise denied the second petition. This petition for review followed. While the petition

for review was pending, we gr anted Cleere’s request for leave to file a supplemental

memorandum based on Blakely

. 2Although this review relates to Cleere’s second Rule 32 petition, that petition was “of right”

because it followed a convic tion pursuant to a plea agreement and the trial court’s

resentencing. S ee Ariz. R. Crim. P. 32.1. Finally, we note that the state argued in its

petition for review to our supreme court that “ Blakely should not be applied retroactively

to cases on collateral review, including, as here, ‘initial collateral review.’” But we do not

infer from our supreme court’s order granting the state’s petition any agreement with that

particular contention.

3 Section 13-702(C)(1), A.R.S., requires a trial court to consider as an aggrava ting

circumstance the “[i]nfliction or threatened infliction of serious physical injury, except if this

circumstance is an essential element of the offense of conviction or has been utilized to

enhance the range of punishment under § 13-604.”

4 DISCUSSION

¶5 Of the four aggravating factors found by the trial court, Cleere argues in the

petition for review that one, serious physical injury, was an improper aggravating factor as

a matter of law because, he claims, it is an element of the offense of attempted murder and

thus expressly excluded from consideration by A.R.S. § 13-702(C)(1). 3 But Cleere is

mistaken. Nowhere in the statutes that collectively define attempted murder is either

infliction or threatened infliction of serious physical injury to the victim made an element

of the offense. See A.R.S. §§ 13-1105, 13-1101, 13-1001. In fact, all that is required to

sustain an attempted murder conviction is evidence of “some overt act or steps taken toward

the commission of

. . . [murder] and an intent to commit the crime.” S tate v. Routhier

, 137

Ariz. 90, 99, 669 P.2d 68, 77 (1983).

¶6 Thus, because the criminal attempt statute requires only intent and “any step

in a course of conduct planned to culminate in commission of an offense,” one could commit5

attempted murder by taking a step far short of inflicting or even threatening serious physical

injury. S ee § 13-1001(A)(2); see also State v. Williams

, 183 Ariz. 368, 382, 904 P.2d 437,

451 (1995) (“A person can, with a culpable state of mind, take an intentional step toward

committing first degree murder without exerting or threatening to exert physical force on

another person.”); State v. Mandel , 78 Ariz. 226, 278 P.2d 413 (1954) (wife convicted of

attempted murder in murder-for-hire plot when no physical harm came to husband because

hit man contacted police). Consequently, because neither infliction nor threatened infliction

of serious physical injury is an essential el e ment of attempted murder, the severity of the

victim’s injuries was a permissible aggravating factor under § 13-702(C)(1) in this case.

¶7 Cleere further contends there was insufficient evidence to support the other

three aggravating factors. And, in his supplemental memorandum, Cleere argues that the

other three aggravating factors found by the court, which he did not admit and a jury did not

find, were improperly used to aggravate his sentence in violation of Blakely . The state did

not file a response to either Cleere’s petition for review or his supplemental memorandum.

¶8 In its petition for review to the supreme court, however, the state argued Cleere

had waived any Blakely issues by failing to raise them in the trial court. But, as our supreme

court recently explained: “Defendants who fail to object to error at trial do not, strictly

speaking, ‘waive’ their claims. Rather, defendants who fail to object to an error below

forfeit the right to obtain appellate relief unless they prove that fundamental error occurred.”

Martinez

, 210 A riz. 578, n.2, 115 P.3d at 620 n.2; s ee also Henderson

, 210 Ariz. 561,6

¶ 19, 115 P.3d at 607 (“Fundamental error review

. . . applie s when a defendant fails to

object to alleged trial error.”). Accordingly, we review Cleere’s claims of fundamental error

relating to Blakely

. See Henderson

, 210 Ariz. 561, ¶ 1, 115 P.3d at 603; see also State v.

Aleman

, 210 Ariz. 232, ¶ 24, 109 P.3d 571, 579 (App. 2005); State v. Thues

, 203 Ariz.

339, ¶ 4, 54 P.3d 368, 369 (App. 2002) (“[i]mposition of an illegal sentence constitutes

fundamental error” that is not waived by defendant’s failure to raise it).

¶9 Fundamental error is “‘err or going to the foundation of the case, error that

takes from the defendant a right essential to [the] defense, and error of such magnitude that

the defendant could not possibly have received a fair trial.’” H enderson

, 210 Ariz. 561,

¶ 19, 115 P.3d at 607, quoting State v. Hunter

, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984).

“[W]e place the burden of persuasion in fundamental error review on the defendant.” Id.

¶ 19. In order to obtain reversal based on unobjected-to trial error, a defendant must show

“both that fundamental error exists and that the error in [his or her] case caused . . .

prejudice.” I

d. ¶ 20; see also State v. King

, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988);

Hunter , 142 Ariz. at 90, 688 P.2d at 982.

¶10 As noted above, the trial court found as aggravating factors the infliction of

serious physical injury to the victim, cruelty, commission of the offense for pecuniary gain,

and serious emotional and mental harm to the victim. For the reasons already stated, we

have rejected Cleere’s contention that the trial court erred as a matter of Arizona statutory

law in considering the first factor, and he does not otherwise challenge on Blakely grounds7

the court’s consideration of that factor. Indeed, in his supplemental brief that specifically

raised and addressed Blakely ’s impact here, Cleere did not challenge on Blakely grounds the

trial court’s finding of serious physical injury to the victim as an aggravating factor. Absent

any such argument, Cleere forfeited his right to challenge that aggravating f actor under

Blakely

. S ee State v. Glassel

, 211 Ariz. 33, n.17, 116 P.3d 1193, 1217 n.17 (2005)

(defendant who never challenged certain aggravating factors on Blakely grounds “waived

th[o]se issues by not raising them at trial or on appeal”).

¶11 Moreover, even had Cleere not waived any B lakely challenge to the

aggravating factor of serious physical injury to the victim, and even assuming the trial court’s

finding of that factor constitutes fundamental error, Cleere could not establish any prejudice

relating to that find ing. One who asserts fundamental B lakely error “must show that a

reasonable jury, applying the appropriate standard of proof, could have reached a different

result [in finding an aggravator] than did the trial judge.” H enderson

, 210 Ariz. 561, ¶ 27,

115 P.3d at 609; see also State v. Ruggiero

, 211 Ariz. 262, ¶ 27, 120 P.3d 690, 696 (App.

2005); State v. Molina , 211 Ariz. 130, ¶ 21, 118 P.3d 1094, 1100 (App. 2005)

(fundamental Blakely error is prejudicial “if a reasonable jury, applying the appropriate

standard of proof, under the actual standards of a jury trial, could have reached a different

result than did the trial judge”). We then consider whether at least one aggravator “not

subject to such a conclusion” remains to support the aggravated sentence imposed by the8

trial court. H enderson

, 210 Ariz. 561, ¶ 28, 115 P.3d at 609; see also Martinez

, 210 Ariz.

578, ¶¶ 21, 26, 115 P.3d at 624, 625.

¶12 With those principles in mind, we cannot say that any reasonable jury,

applying the standard of proof of beyond a reasonable doubt, could have reached a different

conclusion than did the trial court on whether Cleere had inflicted serious physical injury

to the victim by slashing her throat with a box cutt er. Again, Cleere does not argue

otherwise and never has challenged the fact that the victim sustained serious physical injury.

As defense counsel acknowledged at the resentencing, Cleere “took a box cutter and he cut

[the victim’s] throat, and that’s a horrible

. . . thing to think about.” The presentence report,

to which defense counsel referred, reportedly stated that the victim’s “cut went from ear to

ear and the trachea was exposed.” Moreover, counsel acknowledged that Cleere’s act “was

intended to kill,” in that Cleere had “expos[ed] the [victim’s] neck, [and went] for the

proverbial jugular.” In short, the trial court’s finding of that fact as an aggravating factor

under § 13-702(C)(1) did not prejudice Cleere and clea rly was harmless. S ee State v.

Anderson

, 211 Ariz. 59, ¶ 7, 116 P.3d 1219, 1221 (2005) (trial court’s failure to submit to

jury issue of aggravating factor “was at worst harmless error”); Glassel

, 211 Ariz. 33, ¶ 104,

116 P.3d at 1218 (no fundamental Blakely error when defendant could not establish that

any reasonable jury would have failed to find aggravating factor); Ruggiero

, 211 Ariz. 262,

¶ 28, 120 P.3d at 696.4 Unlike the defendant in State v. Molina , 211 Ariz. 130, ¶¶ 24-31, 118 P.3d 1094,

1100-02 (App. 2005), Cleere does not challenge the sufficiency of the evidence to support

any of the aggravating factors the trial court found.

9 ¶13 Cleere argues the trial court’s finding of the three aggravating factors other

than serious physical injury violated Blakely because those factors were neither found by a

jury beyond a reasonable doubt nor admitted by him. But, once the trial court found serious

physical injury as an aggravating circumstance, an uncontested finding for which Cleere, in

any event, has not established prejudice, the court “could properly consider the remaining

factors to determine the specific sentence to impose on [him] within the aggravated range.” 4

Ruggiero

, 211 Ariz. 262, ¶ 29, 120 P.3d at 696-97; see also Anderson , 211 Ariz. 59, ¶ 8,

116 P.3d at 1221-22; Glassel , 211 Ariz. 33, ¶ 102, 116 P.3d at 1217; Martinez

, 210 Ariz.

578, ¶ 26, 115 P.3d at 625; State v. Burdick

, 211 Ariz. 583, ¶ 13, 125 P.3d 1039, 1042

(App. 2005); Molina , 211 Ariz. 130, ¶ 23, 118 P.3d at 1100.

DISPOSITION

¶14 We grant the petition for review but deny relief on the issues raised therein.

_________ ___________________________ JOHN PELANDER, Chief Judge

CONCURRING:

____________________________________ JOSEPH W. HOWARD, Judge10

____________________________________ PHILIP G. ESPINOSA, Presiding Judge