SUPREME COURT OF ARIZONA 

En Banc 

 

 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-04-0442-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 03-0920 

ROBERT ALLEN HENDERSON, ) 

 ) Maricopa County 

 Appellant. ) Superior Court 

 ) No. CR-2003-009923-001 DT 

 ) 

 ) O P I N I O N 

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Karen L. O’Connor, Judge 

No. CR-2003-009923-001 DT 

CONVICTION AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One 

209 Ariz. 300, 100 P.3d 911 (App. 2005) 

AFFIRMED IN PART; VACATED IN PART 

________________________________________________________________ 

TERRY GODDARD, ATTORNEY GENERAL Phoenix 

 By Randall M. Howe, Chief Counsel 

 Criminal Appeals Section 

 Nicolas D. Acedo, Assistant Attorney General 

Attorneys for the State of Arizona 

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix 

 By Edward F. McGee, Deputy Public Defender 

 Attorneys for Robert Allen Henderson 

________________________________________________________________ 

M c G R E G O R, Chief Justice 
2

¶1 We granted review to consider whether a reviewing 

court should consider a claim based upon Blakely v. Washington, 

542 U.S. 296, 124 S. Ct. 2531 (2004), under a harmless error or 

a fundamental error standard when the defendant failed to raise 

the issue at trial. We hold that such claims should be reviewed 

for fundamental error. 

I. 

¶2 Robert Allen Henderson lived with his 73-year-old 

mother, Marian Pyle, at her house. During an argument, 

Henderson assaulted Pyle. The assault continued until Pyle 

forced Henderson from her bedroom. The next morning, Pyle’s 

daughter arrived and Pyle left her bedroom. When Pyle’s 

daughter left the house, Henderson attacked Pyle again. The 

attack continued until sheriff’s deputies arrived and arrested 

Henderson. The deputies observed that Pyle had abrasions on her 

face and nose, a chipped tooth, and cuts and abrasions on her 

hands. Pyle also complained of back injuries. 

¶3 Henderson was indicted on one count of kidnapping, 

Ariz. Rev. Stat. (A.R.S.) § 13-1304 (2001), one count of 

assault, A.R.S. § 13-1203 (2001), and one count of threatening 

or intimidating, A.R.S. § 13-1202 (2001). The jury convicted 

Henderson of assault and threatening or intimidating. The jury 

did not convict him of kidnapping, but did find him guilty of 
3

the lesser included offense of unlawful imprisonment, A.R.S. § 

13-1303 (2001). 

¶4 Pursuant to A.R.S. § 13-702.01.A (2001), the trial 

judge imposed a “super-aggravated” sentence for the unlawful 

imprisonment conviction. Unlawful imprisonment is a class 6 

felony that carries a presumptive term of one year. A.R.S. § 

13-701.C.5 (2001). Section 13-702.A (2001) permits a sentencing 

court to increase or reduce the presumptive sentence and 

mandates that any increase or decrease be based on the 

“aggravating and mitigating circumstances” contained within that 

same section. Id. The maximum term that a judge can impose 

under section 13-702.A for a class 6 felony is 1.5 years. Id. 

Section 13-702.01.A, however, provides that a judge can increase 

the sentence for a class 6 felony to two years, providing that 

the court “finds [] at least two substantial aggravating factors 

listed in § 13-702, subsection C.” 

¶5 The trial court found three aggravating circumstances 

that fit within the list of statutory aggravators codified in 

A.R.S. § 13-702.C: infliction or threatened infliction of 

serious physical injury, § 13-702.C.1; physical and emotional 

harm caused to the victim, § 13-702.C.9; and that the victim was 
4

over the age of sixty-five, § 13-702.C.13.1 Henderson did not 

object either to the fact that the court, not a jury, found the 

aggravators or to the court’s decision to impose a superaggravated sentence. 

¶6 On appeal, Henderson alleged that the trial judge 

erred by not giving him proper credit for his presentence 

incarceration and also raised claims related to his Fifth 

Amendment privilege against self-incrimination. He did not 

raise any Sixth Amendment claims. 

¶7 After Henderson submitted the case to the court of 

appeals, the United States Supreme Court issued its opinion in 

Blakely v. Washington, holding that “any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must 

 

1 The court did not make explicit references to A.R.S. § 13-

702.C when sentencing Henderson. Rather, the court made the 

following statement: 

 Mr. Henderson, I was here at your trial. I heard 

the testimony. I observed the witnesses testify, and 

in aggravation I find that the violent nature of the 

facts of this case are aggravating. The trauma that 

you’ve caused Ms. Pyle and the injuries that you’ve 

caused her are aggravating. 

 I find, in aggravation, Ms. Pyle’s age. I 

further find in aggravation that you have no remorse 

whatsoever for any of these offenses. I find in 

aggravation your statements that you made to me today. 

 I don’t have to consider the allegations that 

would have been presented on acts that are unrelated 

to the crimes that you committed on March 15, 2003 to 

find that this crime here, all by itself, warrants a 

super aggravated sentence, and the most I can give you 

under this crime is two years, and so that’s what I’m 

going to do. 
5

be submitted to a jury, and proved beyond a reasonable doubt.” 

Blakely, 542 U.S. at ___, 124 S. Ct. at 2536 (quoting Apprendi 

v. New Jersey, 530 U.S. 466, 490 (2000)). Sua sponte, the court 

of appeals ordered the parties to file supplemental briefs on 

the issues of whether Blakely applied to Henderson’s sentencing 

and, if so, whether the court should consider any Blakely error 

under a harmless error analysis. 

¶8 The court concluded that Blakely did apply to 

Henderson’s direct appeal, which was pending at the time Blakely

was decided. State v. Henderson, 209 Ariz. 300, 303 ¶ 9, 100 

P.3d 911, 914 (App. 2004). The court also concluded that 

Blakely error constitutes trial error, rather than structural 

error. Id. at 311 ¶ 34, 100 P.3d at 922. The court correctly 

noted the distinction between the two types of trial error, 

stating that “trial error to which an objection is made at trial 

is subject to a harmless error analysis” while “trial error to 

which no objection is made at trial is subject to a review for 

fundamental error.” Id. at 304 ¶ 13, 100 P.3d at 915. The 

court then applied the harmless error standard from State v. 

Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring III), holding that 

“judicial fact-finding . . . may constitute harmless error if we 

can conclude beyond a reasonable doubt that no reasonable jury 

would fail to find the aggravating circumstance.” Henderson, 

209 Ariz. at 311 ¶ 35, 100 P.3d at 922 (citations omitted). 
6

¶9 The State contends that the court erroneously applied 

the harmless error standard to Henderson’s Blakely claim, 

because Henderson had not preserved his objection at trial. 

Specifically, the State argues that, under the correct 

fundamental error standard, Henderson must establish not only 

that fundamental error occurred but also that the error caused 

prejudice. See State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 

982 (1984). 

¶10 We granted review to determine whether the court of 

appeals erred in applying a harmless error standard to 

Henderson’s Blakely claim. We exercise jurisdiction pursuant to 

Article 6, Section 5(3) of the Arizona Constitution and Rule 

31.19 of the Arizona Rules of Criminal Procedure.2

 

II. 

¶11 The parties no longer dispute several issues 

considered at earlier stages of this proceeding. First, neither 

party disputes that the holding of Blakely applies to this case. 

In addition, as the State candidly conceded at oral argument, 

Blakely error clearly occurred. A judge, not a jury, found 

 

2 Henderson initially contended that this appeal is moot 

because he has been released from prison. The State conceded 

that the case is moot, but nonetheless urged us to take review. 

As a general rule, this Court will not examine moot questions 

unless they present issues of great public importance or they 

are likely to recur. See David G. v. Pollard ex rel. County of 

Pima, 207 Ariz. 308, 309 ¶ 6, 86 P.3d 364, 365 (2004). This 

case meets both criteria. 
7

facts that made Henderson eligible for an aggravated sentence 

and, in doing so, applied a lesser standard of proof than 

Blakely requires. Moreover, Henderson acknowledges that he made 

no trial objection that could be construed as raising any 

Blakely issue.

¶12 Finally, Henderson does not challenge the court of 

appeals’ conclusion that Blakely error constitutes trial, not 

structural, error, a conclusion with which we agree. As we held 

in Ring III, there are “relatively few instances in which we 

should regard error as structural.” 204 Ariz. at 552 ¶ 46, 65 

P.3d at 933. Structural errors, as opposed to trial errors, are 

those which “deprive defendants of basic protections without 

which a criminal trial cannot reliably serve its function as a 

vehicle for guilt or innocence.” Id. at ¶ 45 (quoting Neder v. 

United States, 527 U.S. 1, 8-9 (1999) (internal quotations 

omitted). Additionally, errors are considered structural rather 

than trial errors when they “affect the ‘entire conduct of the 

trial from beginning to end,’” and thus taint “‘the framework 

within which the trial proceeds.’” State v. Anderson, 197 Ariz. 

314, 323 ¶ 22, 4 P.3d 369, 378 (2000) (quoting Arizona v. 

Fulminante, 499 U.S. 279, 307-08, 309-10 (1991)). We previously 

have held that we will analyze Apprendi error as trial error, 
8

rather than as structural error.3 See State v. Sepahi, 206 Ariz. 

321, 324 n.3, ¶ 19, 78 P.3d 732, 735 n.3 (2003); see also Ring 

III, 204 Ariz. at 555 ¶ 53, 65 P.3d at 936. In Ring III, we 

held that, in the capital context, “Arizona’s failure to submit 

[aggravating factors] to the jury does not constitute structural 

error.” Id. at 552 ¶ 44, 65 P.3d at 933. We have been asked to 

revisit this question on several occasions and have declined to 

do so. See, e.g., State v. Murdaugh, 209 Ariz. 19, 30 ¶ 50, 97 

P.3d 844, 855 (2004); State v. Montaño, 206 Ariz. 296, 297 ¶ 3, 

77 P.3d 1246, 1247 (2003); State v. Sansing, 206 Ariz. 232, 235 

¶ 5, 77 P.3d 30, 33 (2003). 

 

3

 Every federal circuit court of appeals has also held that 

Apprendi error may be reviewed as trial error. E.g., United 

States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003) (“An 

Apprendi error is not a ‘defect affecting the framework within 

which the trial proceeds,’ but, rather, ‘simply an error in the 

trial process itself.’”) (quoting Arizona v. Fulminante, 499 

U.S. 279, 310 (1991)); United States v. Friedman, 300 F.3d 111, 

127-28 (2d Cir. 2002) (subjecting an alleged Apprendi error to 

harmless error review); United States v. Henry, 282 F.3d 242, 

252 (3d Cir. 2002) (same); United States v. Strickland, 245 F.3d 

368, 379-80 (4th Cir. 2001) (evaluating Apprendi claim under 

plain error doctrine); United States v. Matthews, 312 F.3d 652, 

665 (5th Cir. 2002) (holding that Apprendi error is susceptible 

to harmless error review); United States v. Stewart, 306 F.3d 

295, 322-23 (6th Cir. 2002) (same); United States v. Trennell, 

290 F.3d 881, 890 (7th Cir. 2002) (holding Apprendi error 

harmless); United States v. Frazier, 280 F.3d 835, 855-56 (8th 

Cir. 2002) (evaluating Apprendi claim under plain error 

doctrine); United States v. Velasco-Heredia, 319 F.3d 1080, 

1085-86 (9th Cir. 2003) (applying harmless error analysis); 

United States v. Lott, 310 F.3d 1231, 1240 (10th Cir. 2002) 

(applying plain error analysis to Apprendi claim); United States 

v. Suarez, 313 F.3d 1287, 1293 (11th Cir. 2002) (holding 

Apprendi error harmless); United States v. Lafayette, 337 F.3d 

1043, 1052 (D.C. Cir. 2003) (same). 
9

¶13 Ring III however, considered only the Sixth Amendment 

violation caused by submitting factual questions legally 

essential to expose a defendant to a maximum sentence to the 

wrong factfinder. The aggravating facts used to enhance 

Henderson’s sentence were found by a judge instead of by a jury. 

As we held in Ring III, that procedure violated Henderson’s 

Sixth Amendment right to a jury trial. See 204 Ariz. at 545 ¶ 

12, 65 P.3d at 926; see also Apprendi, 530 U.S. at 490. In 

addition, however, the trial judge here applied a preponderance 

standard to find the aggravators, rather than the 

constitutionally required standard of beyond a reasonable doubt. 

This procedure violated the Fifth Amendment. See, e.g., In re 

Winship, 397 U.S. 358, 364 (1970) (holding that Due Process 

Clause of the Fifth Amendment puts the burden on the prosecution 

to prove all elements of all charges beyond a reasonable doubt). 

¶14 Before the court of appeals, Henderson relied 

primarily upon Sullivan v. Louisiana, 508 U.S. 275 (1993), in 

arguing that the failure to apply the proper standard of proof 

to the determination of aggravating factors legally essential to 

his punishment constitutes structural error requiring automatic 

reversal. In Sullivan, the United States Supreme Court held 

that submitting a case to a jury under a constitutionally 

deficient reasonable doubt instruction “vitiate[d] all the 

jury’s findings” because the jury had returned no verdict of 
10

guilty beyond a reasonable doubt. Id. at 281. Because no 

actual jury verdict exists in such cases upon which the 

harmless-error scrutiny can operate, the Court concluded, the 

error “unquestionably qualifies as ‘structural error.’” Id. at 

282. 

¶15 The defendant in Neder v. United States, 527 U.S. 1 

(1999), sought to expand the Sullivan holding to a situation in 

which the judge failed to submit one element of the charged 

offense to the jury. Neder argued that the failure to submit an 

element to the jury “prevent[ed] the jury from rendering a 

‘complete verdict’ on every element of the offense” and that the 

error therefore could not be reviewed for harmless error under 

Federal Rule of Criminal Procedure 52(a). Id. at 11. 

Recognizing that part of the analysis in Sullivan appeared to 

support Neder’s argument, the Court concluded that “this strand 

of the reasoning in Sullivan . . . cannot be squared with our 

harmless-error cases.” Id. Citing numerous cases, the Court 

held that the absence of a “complete verdict” does not 

necessarily preclude application of the harmless-error analysis. 

See id. at 11-12 (citing cases). Thus, because “an instruction 

that omits an element of the offense does not necessarily render 

a criminal trial fundamentally unfair or an unreliable vehicle 

for determining guilt or innocence,” id. at 9, the Court applied 

a harmless error analysis. 
11

¶16 Recently, in Mitchell v. Esparza, 540 U.S. 12 (2003), 

the Court reiterated the critical distinction between the errors 

considered in Neder and in Sullivan: The error in Sullivan

invalidated all of the jury’s findings, while the error in Neder

impacted only the finding of a single element. Id. at 16. 

When, as occurred in Neder, a jury is “precluded from 

determining only one element of an offense, . . . harmless-error 

review is feasible.” Id.4

¶17 As the court of appeals correctly noted, the Blakely 

error in this case much more closely resembles the error in 

Neder than that found in Sullivan. Henderson, 209 Ariz. at 309 

¶ 29, 100 P.3d at 920. Because a factual finding that is 

legally essential to expose a defendant to a maximum sentence 

operates as the “functional equivalent of an element,” Apprendi, 

530 U.S. at 494 n.19, a judge’s failure to ask a jury to find 

aggravating factors beyond a reasonable doubt is equivalent to 

the failure to require a jury to find every element of an 

offense. Like the errors in Neder and Mitchell, Blakely error 

 

4

 Justice Stevens’ dissent to United States v. Booker

similarly recognizes that not all judicial factfinding related 

to sentencing violates constitutional guarantees: “[J]udicial 

factfinding to support an offense level or an enhancement is 

only unconstitutional when that finding raises the sentence 

beyond the sentence that could have lawfully been imposed by 

reference to facts found by the jury or admitted by the 

defendant.” 125 S. Ct. 738, 775 (2005) (Stevens, J., dissenting 

in part) (emphasis omitted). 
12

does not infect the entire trial process. Therefore, it does 

not constitute structural error and may be reviewed using a 

trial error analysis. The question remaining is whether a 

reviewing court should consider Blakely claims such as that 

involved here under a fundamental error or a harmless error 

standard. 

A. 

¶18 Reviewing courts consider alleged trial error under 

the harmless error standard when a defendant objects at trial 

and thereby preserves an issue for appeal. See State v. 

Totress, 107 Ariz. 18, 20, 480 P.2d 668, 670 (1971) (holding 

that without claim of error at trial, claim is waived); see also 

State v. Hardwick, 183 Ariz. 649, 653, 905 P.2d 1384, 1388 (App. 

1995) (holding that because trial court incorrectly allowed 

inadmissible evidence over objection, review was for harmless 

error). Harmless error review places the burden on the state to 

prove beyond a reasonable doubt that the error did not 

contribute to or affect the verdict or sentence. See State v. 

Bible, 175 Ariz. 549, 588, 858 P.2d, 1152, 1191 (1993).

¶19 Fundamental error review, in contrast, applies when a 

defendant fails to object to alleged trial error. Id. at 572, 

858 P.2d at 1175 (holding that only fundamental error may be 

raised for the first time on appeal). The scope of review for 

fundamental error is limited. A defendant who fails to object 
13

at trial forfeits the right to obtain appellate relief except in 

those rare cases that involve “error going to the foundation of 

the case, error that takes from the defendant a right essential 

to his defense, and error of such magnitude that the defendant 

could not possibly have received a fair trial.” Hunter, 142 

Ariz. at 90, 688 P.2d at 982; see also State v. Gendron, 168 

Ariz. 153, 155, 812 P.2d 626, 628 (1991) (holding that 

fundamental error is that which is “clear, egregious and curable 

only via a new trial”). In addition, we place the burden of 

persuasion in fundamental error review on the defendant. We 

impose this additional limitation upon obtaining relief for 

fundamental error to discourage a defendant from “tak[ing] his 

chances on a favorable verdict, reserving the ‘hole card’ of a 

later appeal on [a] matter that was curable at trial, and then 

seek[ing] appellate reversal.” State v. Valdez, 160 Ariz. 9, 

13-14, 770 P.2d 313, 317-18 (1989). 

¶20 To prevail under this standard of review, a defendant 

must establish both that fundamental error exists and that the 

error in his case caused him prejudice. See Gendron, 168 Ariz. 

at 155, 812 P.2d at 628; see also Hunter, 142 Ariz. at 90, 688 

P.2d at 982 (holding that defendant must prove fundamental error 

exists, and is of such magnitude that he could not have received 

a fair trial); State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 

244 (1988) (holding that after determining that error occurred, 
14

a court must evaluate the prejudicial nature of the error). Our 

requirements for establishing a right to relief for fundamental 

error are not unique. Other jurisdictions that apply 

fundamental error review also have held that a defendant must 

establish prejudice to qualify for relief under that standard of 

review. See, e.g., Reed v. State, 837 So. 2d 366, 370 (Fla. 

2002) (holding that for error to be fundamental it must follow 

that the error prejudiced the defendant); Corcoran v. State, 739 

N.E.2d 649, 655 (Ind. 2000) (holding that for fundamental error 

to exist, court “must find that [the error] so prejudiced the 

defendant’s rights as to make a fair trial impossible.”); In re 

Harris, 671 A.2d 1278, 1279 (Vt. 1995) (holding that petitioner 

must establish fundamental error and that such error prejudiced 

him to prevail). 

¶21 We note that prior appellate decisions have not 

consistently described the showing necessary to establish 

fundamental error. Compare King, 158 Ariz. at 424, 763 P.2d at 

244 (holding that error is fundamental if it may have 

contributed to the verdict), with State v. Thomas, 130 Ariz. 

432, 436, 636 P.2d 1214, 1218 (1981) (holding that error is not 

fundamental if it did not “contribute significantly” to the 

verdict). Our decision in Ring III also may have contributed to 

the confusion on this issue. In that decision, this Court and 

counsel agreed that we should address a number of issues, 
15

including whether we should review Ring II error as structural 

or harmless error. Ring III, 204 Ariz. at 544 ¶ 6, 552 ¶ 44, 65 

P.3d at 925, 933. The parties did not brief, and this Court did 

not consider, whether we should apply the fundamental error 

standard rather than the harmless error standard. We granted 

review in this case in part to dispel any confusion created by 

prior decisions. To the extent that any prior decisions are 

inconsistent with today’s holding, we disapprove of them. 

¶22 We review the Blakely error that occurred here under a 

fundamental error standard because Henderson did not object at 

trial. Hence, Henderson, not the State, bears the burden of 

establishing both that fundamental error occurred and that the 

error caused him prejudice. 

III. 

A. 

¶23 To obtain relief under the fundamental error standard 

of review, Henderson must first prove error. As previously 

noted, the State concedes that Apprendi/Blakely error occurred. 

¶24 Because the parties concede that error occurred, we 

next consider whether this error was fundamental. To establish 

fundamental error, Henderson must show that the error complained 

of goes to the foundation of his case, takes away a right that 

is essential to his defense, and is of such magnitude that he 
16

could not have received a fair trial. Hunter, 142 Ariz. at 90, 

688 P.2d at 982. 

¶25 In this case, as previously noted, error exists on two 

levels. First, the aggravating facts used to enhance 

Henderson’s sentence were found by a judge instead of a jury, 

violating Henderson’s Sixth Amendment right to a jury trial. 

See Apprendi, 530 U.S. at 490. In addition, the trial judge 

applied a preponderance standard, not the constitutionally 

required standard of beyond a reasonable doubt, violating 

Henderson’s Fifth Amendment rights. See Winship, 397 U.S. at 

364. We have found similar error to constitute fundamental 

error. See, e.g., Hunter, 142 Ariz. at 90, 688 P.2d at 982 

(1984) (holding that improper burden shifting to a defendant 

constitutes fundamental error); State v. Johnson, 173 Ariz. 274, 

276, 842 P.2d 1287, 1289 (1992) (same). Indeed, it is difficult 

to conceive that use of a procedure that denied rights 

guaranteed both by the Fifth and by the Sixth Amendments to the 

United States Constitution could be other than fundamental 

error. Because the sentencing procedure followed denied 

Henderson the right to have certain facts decided by a jury 

beyond a reasonable doubt, we conclude that the procedure 

utilized went to the foundation of Henderson’s case. We 

therefore hold that fundamental error occurred. 
17

B. 

¶26 Having shown that fundamental error occurred, 

Henderson must demonstrate that the error caused him prejudice. 

Fundamental error review involves a fact-intensive inquiry, and 

the showing required to establish prejudice therefore differs 

from case to case. Bible, 175 Ariz. at 572, 858 P.2d at 1175; 

see also State v. Allen, 157 Ariz. 165, 171-72, 755 P.2d 1153, 

1159-60 (1988). The showing a defendant must make varies, 

depending upon the type of error that occurred and the facts of 

a particular case. See State v. Dann, 205 Ariz. 557, 572 ¶ 57, 

74 P.3d 231, 246 (2003) (holding that defendant claiming error 

in being excluded from pretrial conferences must establish a 

right to attend those conferences and show his trial was 

prejudiced through his absence); Bible, 175 Ariz. at 572, 858 

P.2d at 1175 (holding that in a case in which voir dire error is 

claimed, defendant must show how court should have conducted 

voir dire and how absence of such procedure prejudiced him); 

Hunter, 142 Ariz. at 90, 688 P.2d at 982 (holding that defendant 

must demonstrate how faulty jury instruction prejudiced him). 

¶27 Because the nature of the error involved here deprived 

Henderson of the opportunity to require that a jury find facts 

sufficient to expose him to an aggravated sentence, Henderson 

must show that a reasonable jury, applying the appropriate 
18

standard of proof, could have reached a different result than 

did the trial judge. 

¶28 Whether a defendant can make that showing depends upon 

the facts of his particular case. In some cases, no Blakely

error will have occurred because the factual finding or findings 

necessary to expose a defendant to an aggravated sentence will 

fall outside the Apprendi/Blakely analysis, will be implicit in 

the jury verdict, or will have been admitted by the defendant. 

In other cases, no Blakely error will occur because a jury, 

applying the beyond a reasonable doubt standard, will find those 

facts legally essential to expose a defendant to a defined 

sentencing range. The Sixth Amendment then allows a judge to 

find additional facts by a preponderance of the evidence, as 

long as the sentence imposed does not fall outside the 

statutorily prescribed sentencing range. State v. Martinez, ___ 

Ariz. ___ ¶¶ 26-27, ___ P.3d ___ (2005). In this case, some of 

the statutory aggravators legally essential to Henderson’s 

punishment were found by the trial court. We review for 

fundamental error to determine whether a reasonable jury, 

applying the correct standard of proof, could have failed to 

find the existence of each aggravator. If we find that a 

reasonable jury applying the correct standard of proof could 

have reached a different conclusion than did the trial judge as 

to any or all aggravators, we must then consider whether at 
19

least two aggravators not subject to such a conclusion remain to 

sustain the defendant’s super-aggravated sentence. See A.R.S. § 

13-702.01 (requiring finding of two substantial aggravators for 

super-aggravated sentence). If not, the defendant has made an 

adequate showing of prejudice. 

¶29 We consider the C.1 and C.9 aggravators together, as 

did the court of appeals. Henderson, 209 Ariz. at 311 ¶ 37, 100 

P.3d at 922. Section C.1 requires infliction or threatened 

infliction of serious physical injury, and C.9 assumes physical 

and emotional harm caused to the victim. 

¶30 The fact that the jury found Henderson not guilty of 

kidnapping under A.R.S. § 13-1304 strongly supports his argument 

that a jury could have reached a different conclusion as to 

these aggravators than did the judge. The difference between 

the kidnapping charge and unlawful imprisonment, A.R.S. § 13-

1303, the lesser charge of which the jury convicted Henderson, 

is that the jury could have convicted Henderson of kidnapping 

only if it found, beyond a reasonable doubt, that Henderson 

intended to inflict serious injury upon his victim. See A.R.S. 

§ 13-1304.A.3. Unlawful imprisonment, in contrast, does not 

include violence as an element. By convicting Henderson of 

unlawful imprisonment rather than kidnapping, the jury arguably 

distinguished between the crimes on the basis of violence, the 

only element the two crimes do not share. 
20

¶31 In aggravating Henderson’s sentence for unlawful 

imprisonment, however, the trial judge found that the crime was 

of a violent nature and that the victim suffered trauma and 

injuries. Blakely involved a similar circumstance. There, the 

defendant pled guilty to second-degree kidnapping. 542 U.S. at 

___, 124 S. Ct. at 2534. The trial judge then found that the 

defendant had acted with deliberate cruelty and aggravated his 

sentence. Id. at ___, 124 S. Ct. at 2535-36. The Supreme Court 

noted that the aggravating factor of deliberate cruelty was 

essentially the same as the element that separated second-degree 

kidnapping from first-degree kidnapping, the charge that the 

defendant pled guilty to avoid. Id. at ___, 124 S. Ct. at 2539. 

Thus, Blakely was exposed to the sentence for which he would 

have been eligible had the jury actually convicted him of the 

greater crime. Id. 

¶32 A similar situation occurred here. By finding the 

presence of the C.1 and C.9 aggravators, the trial judge made a 

finding at least arguably contrary to the facts found by the 

jury. Given the jury’s failure to convict Henderson of 

kidnapping, we conclude that a reasonable jury, applying the 

correct burden of proof of beyond a reasonable doubt, could have 

found differently than did the trial judge as to the C.1 and C.9 

aggravators. 
21

¶33 The trial judge also found the existence of a third 

aggravating factor listed in section 13-702, that Henderson’s 

victim was over the age of sixty-five. A.R.S. § 13-702.C.13. 

This fact was not disputed; no reasonable jury could have failed 

to find the existence of this aggravator beyond a reasonable 

doubt. 

¶34 Section 13-702.01, however, requires that a trial 

judge find the existence of at least two substantial aggravators 

under section 13-702.C. Because the victim’s age, by itself, 

could not expose Henderson to the super-aggravated sentence of 

section 13-702.01, Henderson has demonstrated that the 

fundamental error in his case caused him prejudice. 

¶35 Normally, in such a situation, we would remand this 

case to the superior court for re-sentencing. Because 

Henderson has been released from prison and has finished his 

term of community supervision, however, remand is no longer 

appropriate. 

IV. 

¶36 For the foregoing reasons, the opinion of the court of 

appeals is vacated in part and affirmed in part. The superior 
22

court conviction is affirmed. 

 _______________________________ 

 Ruth V. McGregor, Chief Justice 

CONCURRING: 

__________________________________ 

Rebecca White Berch, Vice Chief Justice 

________________________________________ 

Michael D. Ryan, Justice 

________________________________________ 

Andrew D. Hurwitz, Justice 

________________________________________ 

Charles E. Jones, Justice (Retired) 

H U R W I T Z, Justice, concurring 

¶37 Were we writing on a clean slate, I would conclude 

that all Apprendi error is structural, for the reasons explained 

by Justices Jones and Feldman in their separate opinions in Ring 

III and its progeny. See, e.g., State v. Ring, 204 Ariz. 534, 

565-67 ¶¶ 105-114, 65 P.3d 915, 946-48 (2003) (“Ring III”) 

(Feldman, J., concurring in part, dissenting in part); State v. 

Sansing, 206 Ariz. 232, 241-42 ¶¶ 40-46, 77 P.3d 30, 39-40 

(2003) (Jones, C.J., dissenting); State v. Armstrong, 208 Ariz. 

360, 366-68 ¶¶ 25-37, 93 P.3d 1076, 1082-84 (2004) (Jones, C.J., 
23

concurring in part, dissenting in part). But this Court 

resolved that issue to the contrary in Ring III.5

 Moreover, the 

Supreme Court of the United States, although in a different 

factual context, arguably has reached the same conclusion, 

stating that “[w]here the jury was precluded from determining 

only one element of an offense . . . harmless-error review is 

feasible.” Mitchell v. Esparza, 540 U.S. 12, 16 (2003). 

Therefore, albeit not without reservations, I join that portion 

of the Court’s opinion concluding that Blakely error is not 

structural.

¶38 I join the balance of the Court’s opinion 

unreservedly. It is perhaps worth noting, however, that the 

fundamental error test for prejudice we adopt today — whether 

any reasonable jury could have disagreed about the presence of 

an aggravating factor, see supra ¶ 27 — is for practical 

purposes no different than the harmless error test adopted in 

Ring III. See Armstrong, 208 Ariz. at 362 ¶ 6, 93 P.3d at 1078 

(“[J]udicial fact-finding . . . may constitute harmless error if 

 

5

 As the Court correctly notes, see supra ¶ 13, there is a 

difference between Ring error and Blakely error. Ring error 

involves a deprivation only of Sixth Amendment rights; Blakely

error violates both the Fifth and Sixth Amendments. See id.

Nonetheless, given the holding in Ring III that the denial of a 

defendant’s right to a jury finding of aggravating factors can 

be harmless in a case in which a defendant is sentenced to 

death, it would beggar reason to arrive at a different 

conclusion when the consequence of the judge’s factual finding 

is merely an additional term of years. 
24

we can conclude beyond a reasonable doubt that no reasonable 

jury would fail to find the aggravating circumstance.”) (citing 

Ring III, 204 Ariz. at 555, 565 ¶¶ 53, 103, 65 P.3d at 936, 

946).

¶39 The major conceptual difference is that under 

fundamental error analysis, the defendant bears the burden of 

proving prejudice, while under harmless error analysis, the 

burden is on the State.6

 In practice, however, because a 

reviewing appellate court will virtually never be in equipoise 

about the issue, the burden of proof is of little consequence. 

In both instances, the reviewing court’s analysis will be 

substantively identical — it must determine whether a reasonable 

jury could have concluded differently than the sentencing judge 

as to the relevant aggravating factor. As the Court 

convincingly demonstrates, a reasonable jury could have reached 

 

6

 An appellate court may find fundamental error even if the 

issue is not raised on appeal by a defendant. See United States 

v. Atkinson, 297 U.S. 157, 160 (1936) (“In exceptional 

circumstances, especially in criminal cases, appellate courts, 

in the public interest, may, of their own motion, notice errors 

to which no exception has been taken, if the errors are obvious, 

or if they otherwise seriously affect the fairness, integrity, 

or public reputation of judicial proceedings.”); State v. Curry, 

187 Ariz. 623, 626-27, 931 P.2d 1133, 1136-37 (App. 1996) 

(citing Atkinson); State v. Taylor, 187 Ariz. 567, 571-72, 931 

P.2d 1077, 1081-82 (App. 1996) (same). In such cases, it is 

somewhat misleading to speak of burden of proof. In cases where 

there is any doubt as to whether an error not addressed in the 

defendant’s brief is prejudicial, an appellate court raising the 

issue sua sponte should ask for supplemental briefing, thus 

allowing the defendant to discharge the burden the Court today 

identifies. 
25

a different conclusion than the sentencing judge in the case 

before us, and Henderson has therefore demonstrated the 

prejudice required to establish fundamental error. 

 

 Andrew D. Hurwitz, Justice