SUPREME COURT OF ARIZONA 

En Banc 

 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-04-0435-PR 

 Appellee, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CR 03-0728 

PABLO ARCINIEGA MARTINEZ, ) 

 ) Maricopa County 

 Appellant. ) Superior Court 

 ) No. CR 2000-014823(B) 

 ) 

__________________________________) O P I N I O N 

Appeal from the Superior Court of Maricopa County 

No. CR 2000-014823(B) 

The Honorable Eileen S. Willett, Judge 

SENTENCES AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One 

209 Ariz. 280, 100 P.3d 30 (App. 2004) 

AFFIRMED IN PART 

________________________________________________________________ 

TERRY GODDARD, ATTORNEY GENERAL Phoenix 

 By Randall M. Howe, Chief Counsel 

 Criminal Appeals Section 

 Michael T. O’Toole, Assistant Attorney General 

 Criminal Appeals Section 

Attorneys for the State of Arizona 

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix 

 By Stephen Whelihan, Deputy Public Defender 

Attorneys for Pablo Arciniega Martinez 

OFFICE OF COURT APPOINTED COUNSEL Phoenix 

 By Mark Kennedy 

 Treasure VanDreumel 

Attorneys for Amicus Curiae 

Maricopa County Office of Contract Counsel 

________________________________________________________________ 
2

M c G R E G O R, Chief Justice 

¶1 We granted review in this case to resolve a single 

issue: Does the Sixth Amendment guarantee of a right to jury 

trial, as applied to Arizona’s general felony sentencing scheme, 

require that a sentencing judge consider only those aggravating 

factors found by a jury beyond a reasonable doubt in determining 

whether to impose an aggravated sentence, or may the judge find 

and consider additional aggravating factors once a single 

aggravating factor has been found by the jury, is inherent in 

the jury’s verdict, or has been admitted by the defendant? 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.

I. 

¶2 A jury convicted Pablo Arciniega Martinez of murder in 

the first degree, burglary, and theft of a means of 

transportation, all in connection with the brutal killing of 

Martinez’ 69-year-old landlord. The State sought the death 

penalty for the murder conviction, alleging two aggravators: 

Martinez committed the murder for pecuniary gain, Ariz. Rev. 

Stat. (A.R.S.) § 13-703.F.5 (Supp. 2000), and committed the 

murder in an especially heinous, cruel or depraved manner, id. § 

13-703.F.6. The jury found neither of these aggravators, and 
3

the trial judge imposed a sentence of natural life for the 

murder conviction. 

¶3 In determining the sentences for the burglary and 

theft convictions, the trial judge, acting pursuant to A.R.S. § 

13-702.C (Supp. 2000), found by a preponderance of the evidence 

the following aggravating factors: (1) the presence of an 

accomplice; (2) the use of a knife as a weapon; (3) the severe 

injuries and death of the victim; (4) the emotional and physical 

pain suffered by the victim; (5) the emotional and financial 

harm to the victim’s family; (6) the brutal nature of the crime; 

(7) pecuniary gain; and (8) the victim’s age. The trial judge 

then imposed consecutive aggravated sentences of seven years 

each for the burglary and theft convictions. 

¶4 Martinez timely appealed both his convictions and the 

imposition of aggravated sentences.1

 In a supplemental brief to 

the court of appeals, Martinez argued for the first time that 

his aggravated sentences violate the United States Supreme 

Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. 

Ct. 2531 (2004), because the trial court improperly considered 

aggravating factors not found by the jury. Because Martinez 

failed to raise this issue at trial, the court of appeals 

 

1

 The court of appeals affirmed Martinez’ convictions in a 

separate, unpublished memorandum decision. State v. Martinez, 1 

CA-CR 03-0728 (Ariz. App. Nov. 4, 2004) (mem. decision). 

Martinez did not seek review of that decision. 
4

concluded that he had waived the claim.2 Nevertheless, the court 

reviewed the sentencing procedure for fundamental error. State 

v. Martinez, 209 Ariz. 280, 283 ¶ 9, 100 P.3d 30, 33 (App. 

2004). Finding no fundamental error, the court affirmed 

Martinez’ sentences, holding that they comport with the Sixth 

Amendment as interpreted in Blakely. Id. at 281-82 ¶ 1, 100 

P.3d at 31-32.

¶5 The court of appeals held that if a jury finds, or a 

defendant admits, at least one aggravating factor, the defendant 

becomes eligible to receive an aggravated sentence under A.R.S. 

§ 13-702, and the trial judge may consider additional facts not 

found by the jury in determining the actual sentence to impose. 

Id. at 284 ¶ 16, 100 P.3d at 34. “[A] judge’s imposition of an 

aggravated sentence that falls within the range authorized by a 

jury’s verdict comports with Blakely; a jury need not find every

aggravator upon which a sentencing judge relies.” Id. at 281-82 

¶ 1, 100 P.3d at 31-32. In Martinez’ case, the court concluded 

that the finding that Martinez caused the death of the victim, 

see A.R.S. § 13-702.C.1, was implicit in the jury’s guilty 

 

2

 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. See United States v. Olano, 507 U.S. 725, 731 (1993); 

State v. Henderson, ___ Ariz. ___, ___ ¶ 19, ___ P.3d ___, ___ 

(2005). 
5

verdict on the first degree murder charge. Once the jury found 

this aggravator, Martinez became eligible for an aggravated 

sentence, and the trial judge could then consider other 

aggravating factors in determining what sentence to impose 

within the statutory range for an aggravated sentence. 

Martinez, 209 Ariz. at 284 ¶ 16, 100 P.3d at 34.

¶6 Martinez petitioned for review, asking this Court to 

consider whether the aggravated sentences for burglary and theft 

comply with Blakely.3

 We granted review because this is an issue 

of first impression and a question of statewide importance. In 

addition, we granted review to resolve a split in authority 

within the court of appeals. Compare Martinez, 209 Ariz. at 

281-82 ¶ 1, 100 P.3d at 31-32, and State v. Estrada, 210 Ariz. 

111, 112 ¶ 1, 108 P.3d 261, 262 (App. 2005), with State v. 

Munninger, 209 Ariz. 473, 480 ¶ 21, 104 P.3d 204, 211 (App. 

2005), and State v. Alire, 209 Ariz. 517, 520-21 ¶ 14, 105 P.3d 

163, 166-67 (App. 2005).

II. 

¶7 The Sixth Amendment to the United States Constitution 

guarantees a criminal defendant the right to a trial by jury. 

 

3

 The court of appeals also held that the trial court’s 

consideration of aggravating factors not found by a jury in 

imposing a natural life sentence for the murder conviction did 

not violate Blakely. Martinez, 209 Ariz. at 283 ¶ 12, 100 P.3d 

at 33; see also State v. Fell (Sanders), ___ Ariz. ___, ___ 
6

Every criminal defendant has a right to “demand that a jury find 

him guilty of all the elements of the crime with which he is 

charged.” United States v. Booker, 125 S. Ct. 738, 748 (2005) 

(Stevens, J., for the Court (constitutional majority)) (internal 

quotations omitted). This right to jury trial is not confined 

to the determination of guilt or innocence, but continues 

throughout the sentencing process. Thus, the Sixth Amendment 

guarantees to a defendant the right to demand that a jury find 

the existence of any specific fact that the law makes essential 

to his punishment. Id. at 749 (citing Blakely, 542 U.S. at ___, 

124 S. Ct. at 2536). It is equally true, however, that “judges 

in this country have long exercised discretion . . . in imposing 

sentence within statutory limits in the individual case.” 

Apprendi v. New Jersey, 530 U.S. 466, 481 (2000).

¶8 In a series of decisions interpreting modern criminal 

statutes and sentencing procedures in light of the Sixth 

Amendment, the United States Supreme Court has made clear that 

the Sixth Amendment jury trial requirement does not entirely 

remove from the purview of judges any consideration of 

aggravating factors. The Court has repeatedly distinguished 

between those facts that are legally essential to increase the 

punishment for a crime, and must therefore be found by a jury, 

___________________ 

¶ 19, ___ P.3d ___, ___ (2005). Martinez does not challenge 

that holding. 
7

and those facts that a sentencing judge may, in his or her 

discretion, consider in sentencing a defendant within the range 

prescribed by statute and authorized by the jury’s verdict. See

Jones v. United States, 526 U.S. 227, 248 (1999); Apprendi, 530 

U.S. at 494; Harris v. United States, 536 U.S. 545, 558 (2002); 

Ring v. Arizona, 536 U.S. 584, 604-05 (2002) (Ring II); Blakely, 

542 U.S. at ___, 124 S. Ct. at 2537; Booker, 125 S. Ct. at 750.

A. 

¶9 The Supreme Court first addressed the application of 

the Sixth Amendment jury trial requirement to the determination 

of aggravating factors in Jones. There, the Court expressed 

concern that “diminishment of the jury’s significance by 

removing control over facts determining a statutory sentencing 

range would resonate with the claims of earlier controversies, 

to raise a genuine Sixth Amendment issue not yet settled.” 

Jones, 526 U.S. at 248. The Court noted that prior cases 

suggested the following constitutional principle: “[A]ny fact 

(other than prior conviction) that increases the maximum penalty 

for a crime must be charged in an indictment, submitted to a 

jury, and proven beyond a reasonable doubt.” Id. at 243 n.6. 

Prior case law did not suggest, however, that the Sixth 

Amendment requires that a jury find every fact related to a 

sentencing decision; rather, the case law indicated that 

removing from the jury the consideration of facts that increase 
8

a sentencing range may run afoul of the Sixth Amendment. Id. at 

248. Jones did not decide whether the Sixth Amendment requires 

juries to decide facts related to sentencing, however, because

the Court ultimately interpreted the statute before it so as to 

avoid this constitutional issue. Id. at 251-52.

¶10 One year later, in Apprendi, the Court answered the 

question left open in Jones, by holding 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.” 530 

U.S. at 490. Once again, the Court explained that “nothing in 

[the history of the right to jury trial] suggests that it is 

impermissible for judges to exercise discretion—taking into 

consideration various factors relating both to offense and 

offender—in imposing a judgment within the range prescribed by 

statute.” Id. at 481. Importantly, the Apprendi decision also 

noted that labeling a specific fact as an “element” or a 

“sentencing factor” is irrelevant to the Sixth Amendment 

analysis: “[T]he relevant inquiry is one not of form, but of 

effect—does the required finding expose the defendant to a 

greater punishment than that authorized by the jury’s guilty 

verdict?” Id. at 494. If so, that fact is functionally an 

“element” for purposes of the Sixth Amendment jury right. A 

“sentencing factor,” by contrast, is “a circumstance, which may 
9

be either aggravating or mitigating in character, that supports 

a specific sentence within the range authorized by the jury’s 

finding that the defendant is guilty of a particular offense.” 

Id. at 494 n.19. Thus, Apprendi established that only those 

facts that expose a defendant to a penalty greater than the 

prescribed statutory maximum applicable by virtue of a guilty 

verdict are facts “legally essential” to the punishment. 

¶11 The Court reinforced this conclusion two years later 

in Harris. In a plurality opinion authored by Justice Kennedy, 

the Court stated that while a jury must find those facts that 

establish the outer limits of a sentence, facts that limit a 

judge’s sentencing discretion within the prescribed statutory 

range, such as those that compel imposition of a mandatory 

minimum sentence, may be found by judges rather than juries. 

Harris, 536 U.S. at 567. Thus, “[j]udicial factfinding in the 

course of selecting a sentence within the authorized range does 

not implicate the indictment, jury-trial, and reasonable-doubt 

components of the Fifth and Sixth Amendments.” Id. at 558.

¶12 In Blakely, the Supreme Court applied these principles 

to a Washington state sentencing scheme and further clarified 

the import of the term “statutory maximum.” “Our precedents 

make clear . . . that the ‘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 
10

by the defendant.” Blakely, 542 U.S. at ___, 124 S. Ct. at 

2537. In so holding, the Court continued to proclaim that the 

Sixth Amendment does not prohibit all judicial factfinding:

Of course indeterminate [sentencing] schemes involve 

judicial factfinding, in that a judge (like a parole 

board) may implicitly rule on those facts he deems 

important to the exercise of his sentencing 

discretion. But the facts do not pertain to whether 

the defendant has a legal right to a lesser sentence—

and that makes all the difference insofar as judicial 

impingement upon the traditional role of the jury is 

concerned. 

Id. at ___, 124 S. Ct. at 2540. 

¶13 Recently, the Supreme Court applied its Sixth 

Amendment jurisprudence to the Federal Sentencing Guidelines 

(the Guidelines). Booker, 125 S. Ct. 738. In Booker, the 

defendant was charged with possession with intent to distribute 

at least fifty grams of crack cocaine in violation of 21 U.S.C. 

§ 841(a)(1) (1999). 125 S. Ct. at 746 (Stevens, J., for the 

Court (constitutional majority)). The jury heard evidence that 

he possessed ninety-two and one-half grams and found him guilty. 

That determination established a minimum sentence of 120 months 

in prison and a maximum sentence of life in prison. Taking into 

account Booker’s criminal history and the quantity of drugs 

found by the jury, the Guidelines directed the district court 

judge to select a sentence of not less than 210 nor more than 

262 months in prison. After holding a post-trial sentencing 

proceeding, the sentencing judge concluded by a preponderance of 
11

the evidence that Booker had possessed an additional 566 grams 

of crack and that he was guilty of obstructing justice. Under 

the Guidelines, those findings directed the judge to impose a 

sentence between 360 months and life imprisonment; the judge 

imposed the minimum sentence permitted by the Guidelines. Thus, 

rather than the sentence of 262 months that the judge could have 

imposed solely on the basis of the facts proved to the jury 

beyond a reasonable doubt, Booker received a 360 month sentence, 

based in part upon the additional aggravating facts found by the 

judge by a preponderance of the evidence. Id.

¶14 The Court, applying Apprendi and its progeny, held 

that mandatory Guidelines would violate the Sixth Amendment. 

Once again, the Court emphasized that its decision would not 

limit the discretion of a judge to determine a defendant’s 

sentence within a prescribed range permitted by a jury verdict:

If the Guidelines as currently written could be read 

as merely advisory provisions that recommended, rather 

than required, the selection of particular sentences 

in response to differing sets of facts, their use 

would not implicate the Sixth Amendment. We have 

never doubted the authority of a judge to exercise 

broad discretion in imposing a sentence within a 

statutory range. . . . For when a trial judge 

exercises his discretion to select a specific sentence 

within a defined range, the defendant has no right to 

a jury determination of the facts that the judge deems 

relevant. 

Id. at 750 (emphasis added). 
12

¶15 In a separate part of the opinion, authored by Justice 

Breyer, the Court struck only those provisions of the Guidelines 

that made them mandatory, thus permitting the Guidelines to 

remain in place as advisory. Id. at 756-57 (Breyer, J., for the 

Court (remedial majority)). Justice Stevens dissented from the 

Breyer majority’s remedial holding because he concluded that the 

Guidelines could continue to be applied constitutionally in the 

vast majority of cases. Id. at 771-72 (Stevens, J., dissenting 

in part). This is so, Justice Stevens asserted, because “the 

Guidelines as written possess the virtue of combining a 

mandatory determination of sentencing ranges and discretionary 

decisions within those ranges, . . . allow[ing] ample latitude 

for judicial factfinding that does not even arguably raise any 

Sixth Amendment issue.” Id. at 772. Thus, Justice Stevens’ 

dissent also reinforces the conclusion that the Sixth Amendment 

permits judicial discretion in imposing a sentence within a 

statutory range authorized by the jury’s verdict. 

¶16 The Supreme Court’s recent Sixth Amendment 

jurisprudence, from Jones through Booker, leads inexorably to 

the conclusion that the Sixth Amendment does not remove from a 

trial judge the traditional sentencing discretion afforded the 

judge, so long as the judge exercises that discretion within a 

sentencing range established by the fact of a prior conviction, 

facts found by a jury, or facts admitted by a defendant. Once a 
13

jury finds the facts legally essential to expose a defendant to 

a statutory sentencing range, the sentencing judge may consider 

additional factors in determining what sentence to impose, so 

long as the sentence falls within the established range.

B. 

¶17 We recently recognized that Blakely implicates 

Arizona’s general felony sentencing scheme as well. State v. 

Brown (McMullen), 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15, 18 

(2004). In Brown (McMullen), we held that, under Arizona law, 

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 in A.R.S. § 13-701.C.1 (2004). Id. Because of the 

unique procedural posture of the Brown (McMullen) case, however, 

we declined to address “the full implications of Apprendi and 

its progeny for the Arizona sentencing scheme.” Id. at ¶ 15. 

Instead, we opted to later address additional questions “in the 

context of a case in which [a] relevant issue is squarely 

presented, properly briefed, and addressed by the courts below.” 

Id. at 203-04 ¶ 15, 99 P.3d at 18-19. The present case provides 

an opportunity to address one such question.

III. 

¶18 Under Blakley, a jury must find beyond a reasonable 

doubt any fact that is “legally essential to the punishment.” 
14

542 U.S. at ___, 124 S. Ct. at 2543. This case requires us to 

determine what facts are “legally essential” for an aggravated 

sentence to be imposed upon a defendant pursuant to A.R.S. § 13-

702. 

¶19 In Arizona, a defendant convicted of a felony faces a 

presumptive sentence pursuant to A.R.S. § 13-701 (Supp. 2000). 

Under the statutes in force at the time of Martinez’ sentencing, 

a judge could increase or decrease a defendant’s presumptive 

sentence within a range established by A.R.S. § 13-702.A only if 

“the circumstances alleged to be in aggravation or mitigation of 

the crime are found to be true by the trial judge.” A.R.S. § 

13-702.B. After listing the aggravating and mitigating factors 

that a court must consider, the statute further provides:

In determining what sentence to impose, the court 

shall take into account the amount of aggravating 

circumstances and whether the amount of mitigating 

circumstances is sufficiently substantial to call for 

the lesser term. If the court finds aggravating 

circumstances and does not find any mitigating 

circumstances, the court shall impose an aggravated 

sentence. 

Id. § 13-702.D. 

¶20 Martinez interprets this statutory scheme to mean that 

a defendant is not eligible for an aggravated sentence until all

aggravating factors that will be relied upon in sentencing have 

been found beyond a reasonable doubt by the jury. This is so, 

avers Martinez, because the language in section 13-702.D 
15

requires a sentencing judge to balance all the aggravators and 

mitigators in determining what sentence to impose. According to 

Martinez, because the maximum sentence he could have received 

depended upon the quantity and quality of the aggravators, each 

aggravator relied upon by a judge in sentencing is a fact that 

increases the penalty, and all such facts are legally essential 

to his punishment. Therefore, Martinez contends, each 

aggravating factor must be found by a jury beyond a reasonable 

doubt.

¶21 Martinez’ interpretation of the statutes conflates the 

concept of the maximum potential sentence to which a defendant 

is exposed with the actual sentence imposed. The Supreme Court 

has made clear that only those factors that increase the maximum 

potential sentence to which a defendant is exposed are “legally 

essential” for Sixth Amendment purposes. Under Arizona’s 

sentencing scheme, once a jury implicitly or explicitly finds 

one aggravating factor, a defendant is exposed to a sentencing 

range that extends to the maximum punishment available under 

section 13-702. See Brown (McMullen), 209 Ariz. at 202 ¶ 11, 99 

P.3d at 17 (“Section 13-702(A) allows an increase of this 

presumptive sentence to a maximum [sentence] . . . upon a 

finding of one or more of the aggravating circumstances set 

forth in § 13-702(C).”) (emphasis added). Under those 

circumstances, a trial judge has discretion to impose any 
16

sentence within the statutory sentencing range. Thus, a jury 

finding of a single aggravating factor establishes the facts 

legally essential to expose the defendant to the maximum 

sentence prescribed in section 13-702. 

IV. 

¶22 We recognize that we rejected a similar argument 

proffered by the State in State v. Ring, 204 Ariz. 534, 561 ¶ 

87, 65 P.3d 915, 942 (2003) (Ring III). There, the State argued 

that if it established any single aggravating factor under 

A.R.S. § 13-703 in conformity with the Sixth Amendment, the 

defendant became “death eligible,” and a trial judge could then 

find additional aggravating factors. In rejecting the State’s 

argument, we stated:

A narrow reading of Ring II may permit a judge to 

decide the existence of additional aggravating factors 

in the circumstances described by the State. As the 

State contends, once the government establishes any 

aggravating factor, a defendant becomes “death 

eligible” in the strict sense, and establishing 

additional aggravating factors does not render a 

defendant “more” death eligible. In our view, 

however, Ring II should not be read that narrowly. 

Although the Court there considered a death sentence 

based upon the existence of a single aggravating 

factor, we conclude that Ring II requires a jury to 

consider all aggravating factors urged by the state 

and not either exempt from Ring II, implicit in the 

jury’s verdict, or otherwise established beyond a 

reasonable doubt. 

Id. at 561-62 ¶ 88, 65 P.3d at 942-43. 
17

¶23 We regard our opinion in Ring III as distinguishable 

for two reasons. First, in Ring III, we sought to interpret the 

Supreme Court’s decision in Ring II and concluded that the Court 

intended to require that a jury decide all aggravating factors. 

Since our decision in Ring III, we have gained the benefit of 

additional United States Supreme Court opinions, and both 

Blakely and Booker clarify that, at least in the non-capital 

context, a jury need find only that fact or those facts that are 

“legally essential” to expose a defendant to a particular 

sentencing range. 

¶24 Second, in Ring III, we considered the statutory 

scheme peculiar to capital sentencing in Arizona, rejecting the 

State’s “single aggravator” argument in part because 

the procedures urged by the State do not reflect any 

sentencing procedure ever adopted by our legislature. 

In both the superseded and current capital sentencing 

schemes, the legislature assigned to the same factfinder responsibility for considering both aggravating 

and mitigating factors, as well as for determining 

whether the mitigating factors, when compared with the 

aggravators, call for leniency. Neither a judge, 

under the superseded statutes, nor the jury, under the 

new statutes, can impose the death penalty unless that 

entity concludes that the mitigating factors are not 

sufficiently substantial to call for leniency. The 

process involved in determining whether mitigating 

factors prohibit imposing the death penalty plays an 

important part in Arizona's capital sentencing scheme. 

204 Ariz. at 562 ¶ 89, 65 P.3d at 943 (citations omitted). In 

response to Ring II, the Arizona Legislature adopted a revised 

capital sentencing scheme designed to conform Arizona law to the 
18

Ring II mandate. See id. at 545 ¶ 13, 65 P.3d at 926. The 

legislature chose not to split between fact-finders the duties 

of finding aggravating and mitigating factors and balancing 

those factors to determine whether the death sentence is 

appropriate. Instead, the legislature left these duties in the 

hands of only one fact-finder in both the superseded and the 

revised statutes. 

¶25 Arizona’s non-capital sentencing scheme stands in 

contrast to the capital sentencing scheme discussed in Ring III. 

As the court of appeals pointed out, “Arizona’s non-capital

felony sentencing provisions have accommodated a scheme where 

some factual determinations which increase a defendant’s 

sentence are found by the jury while others are found by the 

judge, with the ultimate sentencing decision made by the 

latter.” Martinez, 209 Ariz. at 285 ¶ 19, 100 P.3d at 35. As 

of the time of Martinez’ sentencing, the Arizona Legislature had 

not revised A.R.S. § 13-702 in light of the Supreme Court’s 

Sixth Amendment holdings.4

 Thus, unlike the capital sentencing 

 

4

 Following oral argument in this case, the legislature 

amended A.R.S. §§ 13-702 and 13-702.01 to conform them to the 

Supreme Court’s recent Sixth Amendment jurisprudence. See 2005 

Ariz. Sess. Laws, ch. 20, §§ 1-2. The amended statutes are 

consistent with the conclusion we reach today. The statutes 

bifurcate responsibility for finding aggravating factors between 

the jury, which must find at least one aggravating factor beyond 

a reasonable doubt, and the judge, who may then find additional 

aggravating factors by a preponderance of the evidence. See id.

§ 1. (“If the trier of fact finds at least one aggravating 
19

provisions reviewed in Ring III, Arizona’s non-capital 

sentencing statutes provide no indication that the legislature 

intended to vest responsibility for finding all aggravating 

facts in a single factfinder.5

V.

¶26 The Sixth Amendment requires that a jury find beyond a 

reasonable doubt, or a defendant admit, any fact (other than a 

prior conviction) necessary to establish the range within which 

a judge may sentence the defendant. If, however, additional 

facts are relevant merely to the exercise of a judge’s 

discretion in determining the specific sentence to impose on a 

defendant within a given statutory sentencing range, the Sixth 

Amendment permits the judge to find those facts by a 

preponderance of the evidence. Under A.R.S. § 13-702, the 

existence of a single aggravating factor exposes a defendant to 

___________________ 

circumstance, the trial court may find by a preponderance of the 

evidence additional aggravating circumstances.”). 

5

 We also note that determining aggravating factors in a 

capital case serves a somewhat different purpose than that 

served by determining aggravating factors in non-capital cases. 

The Eighth Amendment to the United States Constitution requires 

that aggravating factors in capital cases must “genuinely narrow 

the class of persons eligible for the death penalty and must 

reasonably justify the imposition of a more severe sentence on 

the defendant compared to others found guilty of murder.” Zant 

v. Stephens, 462 U.S. 862, 877 (1983). In non-capital 

sentencing, however, aggravating factors serve only to establish 

the range of sentence and do not involve Eighth Amendment 

issues. 
20

an aggravated sentence. Therefore, once a jury finds or a 

defendant admits a single aggravating factor, 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.

¶27 In this case, the sentencing judge relied upon eight 

aggravating factors in imposing aggravated sentences for 

Martinez’ burglary and theft convictions. The jury implicitly 

found one of those aggravators, the severe injuries and death of 

the victim, when it convicted Martinez of first degree murder.6

 

Because at least one aggravating factor was implicit in the 

jury’s verdict, the verdict exposed Martinez to a maximum 

sentence of seven years imprisonment each for the burglary and 

theft convictions. See A.R.S. § 13-702.A. The trial court’s 

consideration of additional aggravating factors in imposing a 

sentence within this range did not violate Blakely.

VI. 

¶28 For the foregoing reasons, we affirm that portion of 

the court of appeals opinion upholding the trial court’s 

 

6

 A.R.S. § 13-702.C.1 includes, as an aggravating factor, the 

“[i]nfliction or threatened infliction of serious physical 

injury.” A.R.S. § 13-105.34 (2000) defines “serious physical 

injury” as including “physical injury which creates a reasonable 

risk of death.” No one in this case argues that injury that 

actually results in death falls outside this definition. 
21

judgment imposing aggravated sentences for Martinez’ theft and 

burglary convictions.

 __________________________________ 

 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)