IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JESUS ANTONIO ALEMAN,

Appellant.

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2 CA-CR 2003-0075

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. 2000026839

Honorable Gilberto V. Figueroa, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General

 By Randall M. Howe and Diane M. Acosta

Harriette P. Levitt

Tucson

Attorneys for Appellee

Tucson

Attorney for Appellant

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

¶1 After a jury trial, appellant Jesus Aleman was convicted of two counts of

second-degree murder, four counts of aggravated assault, and three counts of aggravated

driving while under the influence of an intoxicant (DUI). The trial court sentenced him to

APR -4 2005

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO
2

a combination of concurrent and consecutive prison terms totaling eighteen years on the

murder and aggravated assault convictions, and a consecutive, ten-year term of supervised

probation, a condition of which was a four-month prison term, on the aggravated DUI

convictions. Aleman received mitigated, ten-year, concurrent sentences on the murder

convictions but slightly aggravated, eight-year sentences on the aggravated assault

convictions. 

¶2 In the sole issue raised on appeal, Aleman contendsthe trial court erroneously

denied his pretrial motion to suppress evidence of blood test results, arguing A.R.S. § 28-

673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was

illegal. We do not address that issue because we conclude the trial court did not err in

alternatively finding the blood draw authorized under A.R.S. § 28-1388(E). We also reject

Aleman’s challenge to his aggravated sentences, raised in supplemental briefing and based

on Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Accordingly, we affirm.

BACKGROUND

¶3 “In reviewing the denial of a motion to suppress evidence, we view the facts

in the light most favorable to upholding the trial court’s ruling . . . [and consider] only the

evidence presented at the suppression hearing.” State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d

392, 394 (App. 2000); see also State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069

(1996). On April 29, 2000, a car driven by Aleman crossed the centerline of a two-lane

highway and collided head-on with an approaching minivan. Aleman was seriously injured

and two passengers in his car were killed in the collision. The four family-member
3

occupants of the minivan, two of whom were minors, were seriously injured. Law

enforcement officers who responded to the accident scene found Aleman in and out of

consciousness and trapped behind his car’s steering wheel. Fire department personnel had

to cut Aleman out ofthe car. The two passengers in Aleman’s car were pronounced dead at

the scene.

¶4 One officertestified that he had seen open alcoholic beverage containersin the

car and on the roadway and that fire department personnel had told him they had detected the

odor of an intoxicating beverage on Aleman’s breath and person. Another officer testified

he had seen beer cans in Aleman’s car and had smelled a “distinct strong odor” of alcohol

coming from Aleman. He also testified that from just outside the car by the driver’s door,

he had noticed the odor of alcohol became stronger when Aleman attempted to speak to the

passenger in the front seat. A supervising officer at the scene also detected an odor of

alcohol from Aleman’s car and was told by another officer that Aleman was “under the

influence of alcohol.”

¶5 Aleman was transported to a hospital, where he became “extremely

uncooperative.” A hospital phlebotomist testified that Aleman had attempted to get off of

the examination table, and it had taken about eight people to hold him down. The

phlebotomist considered this a severe trauma case and testified that blood draws are

“mandatory” for every trauma patient seen at the hospital. The hospital’s trauma pack

contained between five to seven blood vials. Regardless of the total number of vials, every

pack contained two gray-topped vials that were specifically and routinely drawn for law

enforcement purposes in every trauma case. The phlebotomist testified that she had drawn
1Evidence at trial established that, based on subsequent testingofthe two gray-topped

vials of Aleman’s blood, criminalists at the Arizona Department ofPublic Safety determined

that his blood-alcohol concentration was .221 and that his blood sample contained

benzoylecgonine, a major metabolite of cocaine.

4

a “full trauma pack” on Aleman and that the two gray-topped vials were set aside in a locked

area for law enforcement purposes.

¶6 Within a few hours, Officer Encisco ofthe Pinal County Sheriff’s Department

retrieved the two gray-topped blood vialsfromthe hospital, took themto the sheriff’s office,

and stored themfor evidence. The supervising officer testified that he had instructed Encisco

to retrieve Aleman’s blood sample from the hospital after another officer had informed the

supervisor that emergency personnel had smelled an odor of alcohol on Aleman.

¶7 Before trial, Aleman moved to suppress evidence of the blood test results,1

arguing the blood samples had been obtained without a warrant, in violation of his Fourth

Amendment rights. Following the suppression hearing, the trial court denied Aleman’s

motion, finding that law enforcement had properly obtained his blood sample pursuant to

§ 28-673(C) and, alternatively, § 28-1388(E). This appeal followed Aleman’s ensuing

convictions and sentencing.

DISCUSSION

I. Motion to suppress

¶8 “We review the trial court’s ruling on a motion to suppress for clear and

manifest error.” State v. Clary, 196 Ariz. 610, ¶ 8, 2 P.3d 1255, 1256-57 (App. 2000); see

also State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App. 1989). In his opening

brief, Aleman only challengesthe trial court’sreliance on § 28-673(C) as a basisfor denying
2

In pertinent part, A.R.S. § 28-673(C) states:

After a determination is made that a person wasinvolved

in a traffic accident resulting in death or serious physical injury

as defined in § 13-105 and the officer has probable cause to

believe that the person caused the accident . . . , the person may

be requested to submit to and successfully complete any test or

tests prescribed by subsection (A) of this section . . . . 

3See Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000), rev’d, 90 P.3d 156 (Alaska

2004); Cooper v. State, 587 S.E.2d 605 (Ga. 2003); King v. Ryan, 607 N.E.2d 154 (Ill. 1992);

McDuff v. State, 763 So. 2d 850 (Miss. 2000); Commonwealth v. Kohl, 615 A.2d 308 (Pa.

1992); cf. State v. Roche, 681 A.2d 472 (Me. 1996).

5

the motion to suppress.2 Relying on several out-of-state cases,3 he argues that the statute is

unconstitutional because it does not require “probable cause to believe that a crime has been

committed before conducting a [warrantless]search which involvesthe takingofblood from

a person.” The state does not respond to Aleman’s constitutional argument at all, but rather

urges us to uphold the trial court’s ruling under § 28-1388(E), which the court cited as an

alternative basis for denial of the motion to suppress.

¶9 In his reply brief, however, Aleman arguesthat § 28-1388(E) “does not apply

in this case because no officer claimed to have had probable cause to arrest [Aleman] at the

time Officer Encisco was requested to retrieve the blood from the hospital.” Generally, an

appellant may not raise issues for the first time in the reply brief. See State v. Watson, 198

Ariz. 48, ¶ 4, 6 P.3d 752, 755 (App. 2000); State v. Cohen, 191 Ariz. 471, ¶ 13, 957 P.2d

1014, 1017 (App. 1998). And, if the appellant does so, “[a]n appellate court can ‘disregard

[the new] substantive issues raised.’” Id., quoting State v. Cannon, 148 Ariz. 72, 79, 713

P.2d 273, 280 (1985).
4A.R.S. § 28-1381 is the statute that prohibits and criminalizes driving under the

influence of intoxicating substances.

6

¶10 Although Aleman did not challenge or otherwise address § 28-1388(E) in his

opening brief, in our discretion we address the issue of whether the trial court’s ruling is

supportable under that statute. See State v. Myers, 117 Ariz. 79, 87, 570 P.2d 1252, 1260

(1977); Ariz. R. Crim. P. 31.13(c)(3), 17 A.R.S. (reply brief may respond “to questions of

law or fact raised by the appellee’s brief”); cf. State v. Shipman & Sweeney, 208 Ariz. 474,

n.2, 94 P.3d 1169, 1171 n.2 (App. 2004) (appellate court may consider merits of dispositive

issue even if not raised in opening brief). And, we address that issue first because courts

should decide cases on nonconstitutional groundsifpossible and should determine a statute’s

constitutionality only if absolutely necessary. See Aitken v. Indus. Comm’n, 183 Ariz. 387,

389, 904 P.2d 456, 458 (1995); State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984).

¶11 Under Arizona law, absent express consent, policemay obtain a DUIsuspect’s

blood sample only pursuant to a valid search warrant, Arizona’s implied consent law,

A.R.S. § 28-1321, orthemedical blood drawexception in § 28-1388(E). See State v.Cocio,

147 Ariz. 277, 283-84, 709 P.2d 1336, 1344-45 (1985);see also State v. Estrada, 209 Ariz.

287, ¶ 11, 100 P.3d 452, 455 (App. 2004). The state did not obtain a search warrant here and

now relies solely on § 28-1388(E), which provides:

Notwithstanding any other law, if a law enforcement

officer has probable cause to believe that a person has violated

[A.R.S.] § 28-1381 and a sample ofblood, urine or other bodily

substance istaken from that person for any reason, a portion of

that sample sufficient for analysis shall be provided to a law

enforcement officer ifrequested for law enforcement purposes.4
7

¶12 In Cocio, oursupreme court addressed the constitutionality and application of

the predecessor statute, former A.R.S. § 28-692(M). The court held that, under the statute,

removal of blood without a warrant from a person suspected of DUI is constitutionally

permissible if there is “probable cause . . . to believe the person has[been driving under the

influence of an intoxicant], . . . exigent circumstances are present and, . . . the blood is drawn

for medical purposes by medical personnel.” 147 Ariz. at 286, 709 P.2d at 1345; see also

Clary, 196 Ariz. 610, ¶¶ 10-11, 2 P.3d at 1257; Lind v. Superior Court, 191 Ariz. 233, ¶ 17,

954 P.2d 1058, 1062 (App. 1998) (holding that hospital blood sample falls within permissible

scope of medical-purpose statute when blood is drawn before showing of probable cause or

arrest, amount ofblood drawn is more than that needed for medical purposes at the time, and

extra blood isset aside for possible law-enforcement use). The court in Cocio also ruled that

the statutory language “‘taken fromthat person for any reason’” meansthat “the blood must

be drawn by medical personnel for any medical reason so as not to conflict with the orderly

administration of care to those injured.” 147 Ariz. at 286, 709 P.2d at 1345, quoting former

§ 28-692(M).

¶13 The record reflects, and Aleman does not dispute, that his blood sampleswere

drawn bymedical personnel (a hospital phlebotomist)formedical purposes. SeeCocio, 147

Ariz. at 286, 709 P.2d at 1345; Lind, 191 Ariz. 233, ¶ 17, 954 P.2d at 1062 (holdingthat “the

hospital draws the entire sample ‘for medical purposes’ within the meaning of the statute,

and the officer’ssubsequentstatutory request for a portion ofthe sample does not violate any

rights of a defendant”); Howard, 163 Ariz. at 50, 785 P.2d at 1238 (“officer’sindication that

he wanted a blood sample priorto the [hospital]technician’s drawing the blood does not alter
8

the fact of its being taken for medical purposes”); cf. Estrada. The record also reflects that

the hospital furnished the two gray-topped blood vials to Officer Encisco pursuant to his

request for a sample for law enforcement purposes, as § 28-1388(E) obligated the hospital

to do. See Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062. Aleman does not contend otherwise.

¶14 In conjunction with his challenge to § 28-673(C), however, Aleman argues

“exigent circumstances clearly did not exist because police had waited well over two hours

before requesting blood from the hospital,” during which time they could have obtained a

search warrant. Even had Aleman presented this argument in connection with § 28-1388(E),

the pertinent Arizona cases clearly refute it. See Cocio, 147 Ariz. at 286, 709 P.2d at 1345

(noting that “[t]he highly evanescent nature of alcohol in the defendant’s blood stream

guaranteed that the alcohol would dissipate over a relatively short period of time” and

finding, “because of the destructability of the evidence, exigent circumstances existed”);

Lind, 191 Ariz. 233, ¶ 20, 954 P.2d at 1062 (based on Cocio, declining to address whether

“a blood sample presents an exigent circumstance” even when police requested portion of

blood sample previously drawn by hospital for medical purposes); Howard, 163 Ariz. at 50,

785 P.2d at 1238.

¶15 The only significant issue, therefore, iswhether the officers had probable cause

to believe that Aleman had violated the DUIstatute at the time they requested and obtained

the blood samples from the hospital. “Probable cause is something less than the proof

needed to convict and somethingmore than suspicions.” Howard, 163 Ariz. at 50, 785 P.2d

at 1238; cf. Smith v. Ariz. Dep’t of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App.

1985) (probable cause does not require law enforcement “to show that the operator was in
9

fact under the influence”; “[o]nly the probability and not a prima facie showing of

intoxication is the standard for probable cause”). In addition, probable cause exists if the

collective knowledge of the officers establishes that they had “reasonably trustworthy

information of facts and circumstances which are sufficient in themselves to lead a

reasonable [person] to believe an offense . . . has been committed and that the person to be

arrested . . . did commit it.” State v. Richards, 110 Ariz. 290, 291, 518 P.2d 113, 114 (1974);

see also State v. Keener, 206 Ariz. 29, ¶ 14, 75 P.3d 119, 122 (App. 2003) (“[O]ur courts

have long recognized that collective knowledge of law enforcement officers may be

considered to establish probable cause.”). We apply the law to the facts de novo in

determining whether probable cause existed. See Ornelas v. United States, 517 U.S. 690,

699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996); State ex rel. McDougall v.

Superior Court, 191 Ariz. 182, 186, 953 P.2d 926, 930 (App. 1997). 

¶16 In addition to observing open beer containers in and around Aleman’s car,

emergency personnel who attended to himat the scene told police they had detected the odor

ofintoxicants on his breath. Moreover, the “distinct strong odor” of alcohol emanating from

Aleman’s position in the driver’s seat became even stronger when he attempted to speak to

the deceased front-seat passenger. The accident occurred in broad daylight when Aleman

crossed the centerline and collided head-on with the oncoming van. The record reflects no

circumstances other than Aleman’s impairment to explain the collision. 

¶17 OfficerEncisco’stestimony that he personally had not had “any evidence that

Mr. Aleman had committed a crime” at the time Encisco retrieved the blood samples from

the hospital is of no moment. Cf. McDougall, 191 Ariz. at 186, 953 P.2d at 930 (officer
5Aleman’sreliance on State v. Flannigan, 194 Ariz. 150, 978 P.2d 127 (App. 1998),

is unavailing. There, unlike in this case, the defendant “did not sustain any injuries in the

accident that required medical personnel to draw his blood” and, therefore, that case “[did]

not involve the medical purposes exception of[former] A.R.S. section 28-692(J) [now § 28-

1388(E)], which would have entitled the police to receive a sample of his blood regardless

of his consent.” Id. ¶ 14. See also State v. Brita, 154 Ariz. 517, 521, 744 P.2d 429, 433

(App. 1987), approved in part and vacated in part, 158 Ariz. 121, 761 P.2d 1025 (1988)

(“defendant’s blood was not part of a sample taken for medical reasons in accordance with

[former] A.R.S. § 28-692(M)).

10

might have “probable cause to arrest even though he thought he did not”). As noted above,

the collective knowledge of all of the officers may establish probable cause and in fact did

so here.

¶18 In sum, the trial court did not clearly and manifestly err in implicitly finding

the officers had had probable cause to believe Aleman had been driving while under the

influence of an intoxicant, asrequired by § 28-1388(E), and consequently denyingAleman’s

motion to suppress based on that statute.5 See, e.g., State v. Kemp, 168 Ariz. 334, 813 P.2d

315 (1991) (trial court properly admitted defendant’s blood test results after he had driven

his car into path of oncoming vehicle, caused death of other driver,smelled of alcohol at the

scene and during questioningat hospital, even though defendant was not under arrest at that

time); State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983) (officer had probable cause to

make DUI arrest after officer found defendant unconscious in vehicle parked off roadway

and noted strong odor of alcoholic beverage on him and in vehicle); Howard, 163 Ariz. at

49-50, 785 P.2d at 1237-38 (sufficient evidence supported probable cause finding when

defendant’s carrear-ended other vehicle, and paramedic at scene “detected an odor of alcohol

that could have been produced by [defendant’s] consumption of alcohol or something else
11

associated with [his] injuries,” despite defendant’s contention that “none of the officers

determined independently that there was alcohol on [his] breath”).

II. Blakely issues

¶19 After this appeal came at issue, the United States Supreme Court decided

Blakely. Thereafter, pursuant to Aleman’s motion and this court’s order, the parties filed

supplemental briefs addressingwhether and how Blakely affects this case. We now address

those issues.

¶20 As noted earlier, the trial court imposed slightly aggravated, eight-year

sentences on the four aggravated assault convictions. Those convictions related to the four

occupants, two of whom were minors, of the oncoming minivan with which Aleman’s

vehicle collided. In imposing those sentences, the trial court found the following aggravating

circumstances: that Aleman previously had been convicted of at least one DUI and had

another DUI charge pending; that two ofthe victims were minors; that multiple victims were

involved; that Aleman’s driver’s license had been suspended or revoked at the time of the

accident; and that Aleman had recognized that he wastoo drunk to drive. In mitigation, the

trial court found that Aleman had minor children to support, that he had no known prior

felony convictions, and that he appeared to be remorseful. After considering those

aggravating and mitigating circumstances, the trial court determined that a slightly

aggravated sentence was appropriate on each of the four aggravated assault convictions.

¶21 In Apprendi v. NewJersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147

L. Ed. 2d 435, 455 (2000), the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
6Nor does the state contend Blakely does not apply to Arizona’s treatment of

aggravating sentencing factors under A.R.S. § 13-702 in noncapital cases. Indeed, it is now

clear that Blakely’s analysis and conclusion apply with equal force to Arizona’s sentencing

structure under § 13-702(B) and (C). See State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15,

18 (2004); Henderson, 209 Ariz. 300, ¶ 6, 100 P.3d at 913-14 (in Arizona, the presumptive

12

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

theCourt extended that ruling and held that “the ‘statutory maximum’ for Apprendi purposes

isthe maximumsentence a judgemay impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” ___ U.S. at ___, 124 S. Ct. at 2537. The Court

explained: 

In other words, the relevant “statutory maximum” is not the

maximum sentence a judge may impose after finding additional

facts, but the maximum he may impose without any additional

findings. When a judge inflicts punishment that the jury’s

verdict alone does not allow, the jury has not found all the facts

“which the law makes essential to the punishment,” and the

judge exceeds his proper authority.

Id.(citation omitted), quoting 1 J.Bishop,Criminal Procedure § 87 at 55 (2d ed. 1872);see

also United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005).

¶22 As Aleman correctly points out, new appellate opinions announcing a change

in the law generally apply to any cases that are pending at the time the opinion isfiled. See

Schriro v. Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2522, 159 L. Ed. 2d 442 (2004);

Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987).

Thus, Blakely appliesto this case. See State v. Henderson, 209 Ariz. 300, ¶ 9, 100 P.3d 911,

914 (App. 2004); State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d 35, 41 (App. 2004).

The state does not argue otherwise.6
term provided in A.R.S. § 13-701 is the “‘statutory maximum’” for purposes of Blakely),

quoting Blakely, ___ U.S. at ___, 124 S. Ct. at 2537; State v. Resendis-Felix, 209 Ariz. 292,

n.1, 100 P.3d 457, 459 n.1 (App. 2004).

7We reject this argument and note that our supreme court has concluded that even in

capital cases, the indictment need not specify aggravating factors in support of the death

penalty. McKaney v. Foreman, 209 Ariz. 268, ¶ 23, 100 P.3d 18, 23 (2004); see also State

ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 10, 98 P.3d 881, 884 (App. 2004), quoting State v.

Nichols, 201 Ariz. 234, ¶ 15, 33 P.3d 1172, 1176 (App. 2001) (“aggravatorsthat are nowthe

functional equivalent of elements ‘need not be alleged in the charging document provided

that the notice . . . given the defendant comports with Arizona’s traditional notice

requirements for alleging sentence enhancements’”). In addition, the court in Conn

concluded that, even though “A.R.S. § 13-702(B) requires a trial judge to find aggravating

factors,” that “does not mean that, post-Blakely, juries cannot do so without a legislative

change to the statute.” Id. ¶ 6;see also Aragon v. Wilkinson, 209 Ariz. 61, ¶ 15, 97 P.3d 886,

891 (App. 2004) (“the court may utilize itsinherent authority to convene a jury trial on the

existence of facts that may support imposition of an aggravated sentence”).

13

¶23 Relying on Apprendi and Blakely, Aleman contends the trial court exceeded

its authority by imposing aggravated sentences based on facts not found by the jury or

admitted by him. Those aggravated sentences, Aleman argues, exceeded the “statutory

maximum” as defined in Blakely and violated his Sixth Amendment right to a trial by jury

on the aggravating circumstances. Aleman further argues that, because no aggravating

factors were charged in the indictment and because the trial court supposedly has no legal

authority to empanel a new jury to determine any such factors,7 he “is entitled to be

resentenced to no more than the presumptive term of imprisonment” on the aggravated

assault convictions.
8See State v. Sepahi, 206 Ariz. 321, n.3, 78 P.3d 732, 735 n.3 (2003) (Apprendi “issue

was not raised either in the superior court or the court of appeals, and therefore was not

preserved for our review”); State v. Holder, 155 Ariz. 83, 86, 745 P.2d 141, 144 (1987)

(Even though Batson v.Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), had

not yet been decided at time of defendant’s trial and constituted “a significant change in the

law,” it was not “so novel an idea as to excuse the defendant’s failure to make a timely

objection.”); State v. Tison, 129 Ariz. 526, 535-36, 633 P.2d 335, 344-45 (1981) (defendant’s

Fifth and Sixth Amendment claims not raised “in the trial court are waived on appeal”).

9See United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002); United States v.

Palmer, 297 F.3d 760, 767 (8th Cir. 2002); Rodriguez v. United States, 286 F.3d 972, 978

(7thCir. 2002); United States v.Campbell, 279 F.3d 392, 401 (6th Cir. 2002); United States

v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001); United States v. Levy, 379 F.3d

1241, 1242 (11th Cir. 2004); United States ex rel. Perez v. Warden, FMC Rochester, 286

F.3d 1059, 1063 (8th Cir. 2002); see also State v. Leja, 684 N.W.2d 442, 447 n.2 (Minn.

2004).

14

¶24 Preliminarily, relying on both Arizona8and federal cases,9the state contends

Aleman waived any Sixth Amendment challenge to his aggravated sentences under Blakely

because the foundation for his claim existed well before Blakely was decided, but he failed

to present the argument at sentencing or in his opening brief. The authorities the state cites

clearly support its waiver argument. But waiver is a procedural concept that courts do not

rigidly employ in mechanical fashion. See State v. Smith, 203 Ariz. 75, ¶ 12, 50 P.3d 825,

829 (2002) (reviewing court may choose to address argument otherwise waived). And this

court has stated that Blakely error, “unless harmless, constitutes fundamental error” which

is not waived despite a party’s failure to timely raise it. State v. Resendis-Felix, 209 Ariz.

292, ¶ 6, 100 P.3d 457, 459 (App. 2004); see also State v. Munninger, 209 Ariz. 473, ¶¶ 7-

12, 104 P.3d 204, 208-09 (App. 2005) (no waiver of Blakely issue despite not having been

raised below); Henderson, 209 Ariz. 300, ¶ 9, 100 P.3d at 914 (addressing alleged Blakely

error even though “[n]either party requested that a jury determine the aggravators beyond a
10See also United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004);

United States v. Marseille, 377 F.3d 1249, 1258 n.14 (11th Cir. 2004) (although district court

had enhanced defendant’ssentence with prior convictions, “Blakely does not take such factfinding out of the hands of the courts”); United States v. Cooper, 375 F.3d 1041, 1053 n.3

(10th Cir. 2004); United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000)

15

reasonable doubt”); cf. Miranda-Cabrera, 209 Ariz. 220, ¶ 26, 99 P.3d at 41 (addressing

Blakely issue on the merits even though defendant “fail[ed] to raise it at the sentencing

hearingorin his openingbrief”). Accordingly, in our discretion we address the supplemental

Blakely issues the parties have raised. See Resendis-Felix, 209 Ariz. 292, ¶ 6, 100 P.3d at

459.

¶25 Aside from its waiver argument, the state also contends Aleman’s slightly

aggravated sentences did not violate the Sixth Amendment because he “admitted at

sentencing the fact that he had a prior DUI conviction—a conviction that fell within the

exception announced in Apprendi.” As noted above, the Supreme Court in Apprendi

excepted prior convictionsfromthe general principle that facts that increase the penalty for

a crime must be presented to a jury and proved beyond a reasonable doubt. 530 U.S. at 490,

120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455; see State v. Ring, 204 Ariz. 534, ¶¶ 64-66, 65

P.3d 915, 939 (2003)(Ring III). And, as the state correctly points out, “Blakely did not alter

Apprendi’s exception of the fact of a prior conviction from the dictates of the Sixth

Amendment trial-by-jury requirement.” See Blakely, ___ U.S. at ___, 124 S. Ct. at 2536

(applying, but not altering, “the rule we expressed in Apprendi,” which expressly excluded

“‘the fact of a prior conviction’”), quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63,

147 L. Ed. 2d at 455; State v. Cons, 208 Ariz. 409, ¶ 15, n.3, 94 P.3d 609, 614-15, 613 n.3

(App. 2004).10 
(“Apprendi held that all prior convictions—not just those admitted on the record—were

exempt from Apprendi’s general rule and . . . may continue to be treated as sentencing

factors.”); Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004) (“[T]he multiple

convictions that the extensive criminal history comprises have already been proven beyond

a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely.”);

State v. Abdullah, 858 A.2d 19, 38 (N.J. Super. Ct. App. Div. 2004) (trial court’sfinding of

three aggravating factors “used to justify the maximum second-degree ten-year term did not

offend Blakely, as they were derived from defendant’s prior criminal record and, therefore,

expressly excepted”).

16

¶26 Moreover, Apprendi’s exception of the “fact” of a prior conviction is not

limited solely to a priorfelony conviction. Rather, the exception encompasses any conviction

entered in a Sixth Amendment-compliant manner. See Goldsberry v. State, 821 N.E.2d 447,

461 (Ind. Ct. App. 2005) (under Blakely, trial court may rely on prior misdemeanor

convictions as an aggravator without a finding by jury); State v. Kendall, 58 P.3d 660, 667

(Kan. 2002) (prior misdemeanor DUI convictions used to enhance instant DUI conviction);

State v. Van Buren, 98 P.3d 1235, 1240 (Wash. Ct. App. 2004) (Blakely does not preclude

trial court from considering as aggravator defendant’s criminal history, including

misdemeanor convictions);see also United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.

2002) (juvenile adjudications can properly be characterized as prior convictions for Apprendi

purposes). Aleman does not argue otherwise, nor does he dispute that at the time of his prior

conviction, a person charged with misdemeanor DUI in Arizona had the right to a jury trial,

and the burden ofproofwas beyond a reasonable doubt. See Rothweiler v. Superior Court,

100 Ariz. 37, 47, 410 P.2d 479, 486 (1966); A.R.S. § 28-1381(F)(at arraignment, court shall

inform DUI defendant that he or she “may request a trial by jury and that the request, if
11In its discretion, the trial court could consider that prior misdemeanor conviction

under the “catch-all” provision in A.R.S. § 13-702(C)(21), even though it did not qualify as

an aggravating circumstance under § 13-702(C)(11).

12Aleman wassubject to the enhanced penalties of A.R.S. § 13-604 because the jury

expressly found that each class three, aggravated assault offense constituted a dangerousnature felony. Under § 13-604(I), the presumptive term was 7.5 years’ imprisonment, and

the maximum term was fifteen years. The trial court imposed slightly aggravated eight-year

terms, to be served concurrently, even though the court could have imposed consecutive

sentences on each ofthe aggravated assault convictions. See, e.g., State v. Henley, 141 Ariz.

465, 687 P.2d 1220 (1984); State v. White, 160 Ariz. 377, 773 P.2d 482 (App. 1989). 

17

made, shall be granted”); but cf. Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005)

(overruling Rothweiler and holding that drag racing is not a jury-eligible offense). 

¶27 As noted earlier, Aleman admitted at sentencing the fact that he had a prior

DUI conviction.11 The state argues, “[b]ased on the fact of the Apprendi-exempt prior

conviction, [Aleman] became constitutionally eligible to receive a prison term of up to 15

years.” See § 13-604(I).12 According to the state, “under the Sixth Amendment and the

Apprendi/Blakely rule, the fact of Aleman’s prior conviction,standing alone, wassufficient

to support the imposition of a sentence greater than the presumptive.” 

¶28 Some decisions by Division One of this court support the state’s “one-isenough” argument. See State v. Estrada, 446 Ariz. Adv. Rep. 30, ¶ 1 (Ct. App. March 4,

2005) (“defendant whose prior convictions constitute an aggravating circumstance” is not

constitutionally entitled “to jury findings on the existence of any additional aggravating

factors”); State v. Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d 30, 31-32 (App. 2004) (holding that

“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”); State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 12, 98 P.3d 881, 884
18

(App. 2004) (if jury finds “any alleged aggravating factor” was proven, trial court may

consider “[o]ther factors in aggravation or mitigation” and impose a sentence anywhere

“within the statutory range for aggravated sentences”); cf. Miranda-Cabrera, 209 Ariz. 220,

¶ 34, 99 P.3d at 43 (“[W]hether the sentencing scheme is determinate orindeterminate, once

the jury has found the facts necessary to impose a sentence within a statutory range, a judge

may consider any additional sentencing factorsin imposing a lessersentence than the statute

authorizes.”).

¶29 This court, however, has rejected the state’s broad argument that, even when

a trial court finds both aggravating and mitigating factors, a single Blakely-compliant or

-exempt aggravating factor authorizesthe court to “find additional aggravating factors under

the relaxed, pre-Blakely rulesfound in § 13-702.” State v. Timmons, 209 Ariz. 403, ¶ 11, 103

P.3d 315, 319 (App. 2005); but see State v. Chiappetta, ___ Ariz. ___, 107 P.3d 366 (App.

2005) (Espinosa,J.). Accordingly, this court declined to follow the contrary view espoused

in Martinez and Conn. Timmons, 209 Ariz. 403, ¶¶ 6-7, 103 P.3d at 318. Similarly, other

panels of Division One also have rejected Martinez’s “one-is-enough approach,” refusing to

“automatically uphold sentences based on the presence of a single aggravating factor when

the sentencing judge relied on others not properly found by a jury.” Munninger, 209 Ariz.

473, ¶¶ 27, 30, 104 P.3d at 213, 214;see also State v. Pitre, 446 Ariz. Adv.Rep. 10, ¶ 13 (Ct.

App. March 4, 2005) (rejecting state’s contention that “a sole valid factor under Blakely

opensthe door and allows a court without a jury to consider any other factorsthat do not fit

within Blakely’s confines”). Thus, when a trial court finds mitigating factors and multiple

aggravating factors, only some of which are Blakely-compliant or -exempt, “Arizona law
13In Alire, this court held that when a trial court finds at least one Blakely-compliant

or -exempt aggravating factor and finds no mitigating factors, the court, without violating

Blakely, may consider additional aggravating factors for which reasonable evidence exists

and may impose a sentence anywhere within the aggravated range based on the totality of

aggravatingfactors. Alire, 209 Ariz. 517, ¶ 13, 105 P.3d at 166; see also State v. Viramontes,

204 Ariz. 360, ¶ 14, 64 P.3d 188, 190 (2003) (“In non-capital cases, aggravators need only

be supported by reasonable evidence.”). Contra, State v. Pitre, 446 Ariz. Adv. Rep. 10,

¶¶ 22-23 (Ct. App. March 4, 2005) (disagreeing with Alire and imposing Blakely’s

requirements on all aggravating factors, regardless of absence of any mitigating factors).

Here, however, the trial court expressly found three mitigating factors and weighed them

against the aggravating factors. Therefore, Alire’s holding does not apply.

14At trial, Aleman stipulated that he had known his driver’slicense was suspended at

the time of the accident, and the trial court instructed the jury that it could consider the

stipulated fact as evidence. Apparently referring to that stipulation, Aleman incorrectly

maintainsthat the trial court aggravated his sentence in part based on his admission that “he

knew his license was suspended.” In fact, however, the trial court merely cited as an

aggravating factor that his “privilege to drive was suspended . . . at the time [he was]

driving.” And, the jury expressly found that fact in its verdicts on the DUI charges, contrary

19

does not authorize an aggravated sentence upon the mere finding of one aggravating

circumstance but, rather, authorizes an aggravated sentence only if all of the aggravating

circumstances taken together outweigh the mitigating factors found by the court.” State v.

Alire, 209 Ariz. 517, ¶ 12, 105 P.3d 163, 165-66 (App. 2005).13

¶30 Again, Aleman’s prior DUI conviction was Blakely-exempt and, therefore,

properly considered in aggravation. Likewise, the trial court properly considered two other

factors that were Blakely-compliant because theywere “inherent in the jury’s verdicts.” State

v. Oaks, 209 Ariz. 432, ¶ 23, 104 P.3d 163, 168 (App. 2004). The trial court cited the

involvement of multiple victims as an aggravating factor. By finding Aleman guilty on the

four charges of aggravated assault, the jury implicitly found there had been multiple victims.

And, in its guilty verdicts on the DUI charges, the jury specifically found that at the time of

the offenses, Aleman’slicense was “suspended, canceled,refused orrevoked.”14 Our inquiry
to Aleman’s argument that “none of the aggravating factors . . . were found proven beyond

a reasonable doubt by the jury.”

15In her partial dissent, Judge Flórez opinesthat, in order to be Blakely-compliant or

-exempt, a defendant’s “admission” to a fact used for sentence-aggravation purposes must

meet all the constitutional waiver requirements of a knowing, intelligent, and voluntary guilty

plea. But our supreme court has implied that Blakely itself is not clear on that point. See

Brown, 209 Ariz. 200, n.4, 99 P.3d at 18 n.4; see also United States v. Thomas, 389 F.3d 424,

426 (3d Cir. 2004) (outlining several possible interpretations of the language in Blakely

relatingto “admissions” by a defendant). Blakely excepted fromitsscope sentencesimposed

based on “facts. . . admitted by the defendant” orto which the defendant “stipulates” without

expoundingon that exception or expressly limitingits context. Blakely, ___ U.S. at ___, 124

S. Ct. at 2537, 2541. See Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind. Ct. App. 2004)

(defendant’s statements at sentencing were facts admitted by him and “are exempt from the

Apprendi/Blakely rule”). In any event, we need not resolve the issue of what does or does

not qualify as a valid “admission” for Blakely purposes because here any reasonable jury

would find beyond a reasonable doubt those factsto which Aleman stipulated or admitted.

20

does not end there, however, because the trial court found other aggravating factors and

weighed them against the mitigating factors it also found. See Munninger, 209 Ariz. 473,

¶ 25, 104 P.3d at 213; Timmons, 209 Ariz. 403, ¶ 11, 103 P.3d at 318-19. Nonetheless, we

conclude the trial court’s consideration ofthe other aggravatingfactors either did not violate

Blakely or was harmless.

¶31 No Sixth Amendment violation occurs if a trial court aggravates a sentence

based on a fact “admitted by the defendant.” Blakely, ___ U.S. at ___, 124 S. Ct. at 2537;

see also Ring III, 204 Ariz. 534, ¶ 93, 65 P.3d at 944 (“In cases in which a defendant

stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance,

we will regard that factor as established.”). Based on undisputed evidence at trial, Aleman

conceded at sentencing that “he knew he wasimpaired and shouldn’t have been driving” at

the time ofthe accident. Thus, the trial court’s reliance on that acknowledged, uncontested

fact arguably did not violate Blakely.

15
Therefore, any alleged Blakely error is harmless. See State v. Ring, 204 Ariz. 534, ¶ 86, 65

P.3d 915, 942 (2003) (Ring III) (“Other circumstances that may involve harmless error

include, for example, those instancesin which the defendant stipulated to [the fact at issue]

or in which overwhelming evidence establishes [that fact].”); see also State v. Munninger,

209 Ariz. 473, ¶ 13, 104 P.3d 204, 210 (App. 2005) (“No reversible error occurs when . . .

the defendant stipulated to the facts constituting the aggravating circumstance.”).

21

¶32 Moreover, any alleged Blakely error relating to that factor or the other

aggravating factors was harmless. Arizona courts and all federal circuit courts have

concluded that Apprendi or Blakely error is subject to harmless error analysis. See State v.

Sepahi, 206 Ariz. 321, n.3, 78 P.3d 732, 735 n.3 (2003) (“any Apprendi error would be

harmless”); Henderson, 209 Ariz. 300, ¶¶ 22, 33, 100 P.3d at 917, 921-22 (notingthat “every

federal circuit court has. . . been uniformin holding that Apprendi error can be reviewed for

harmless error” and that “other courts, since Blakely, have also applied a harmless error

analysis to Blakely violations”); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10, 100 P.3d at 460;

Martinez, 209 Ariz. 280, ¶ 1, 100 P.3d at 31-32 (holding that “Blakely error is subject to

harmless error or fundamental error analysis and may or may not require reversal based on

the facts of a particular case”); Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d at 42 (even

assuming defendant’s trial testimony did not qualify as admissionsfor sentencing purposes,

trial court’s enhancement ofsentencing range without “separate and specific [jury] finding”

that defendant had directed his conduct at a child was harmless error). 

¶33 The evidence indisputably showed that two of the victims were minors, and

their young ages were specifically referred to atsentencingwithout contradiction. Thus, “no

reasonable jury could have concluded differently than the trial judge concluded.”

Henderson, 209 Ariz. 300, ¶ 41, 100 P.3d at 923. And both the prosecutor and the trial court
22

noted atsentencing, without objection or dispute, that at the time ofthe offensesAleman had

not only a prior DUI conviction, but also a pending DUI charge on which he later was

convicted. Finally, none of the aggravating factors involved “an inherently subjective

determination.” Timmons, 209 Ariz. 403, ¶ 14, 103 P.3d at 319; see also Oaks, 209 Ariz.

432, ¶ 23, 104 P.3d at 168.

¶34 In short, “we have no difficulty in concludingthat on the record in this case no

reasonable jury could have concluded differently than the trial judge concluded” on these

other aggravating circumstances the trial court cited. Henderson, 209 Ariz. 300, ¶ 41, 100

P.3d at 923. And, although the trial court also found some mitigating factors and weighed

them against the aggravating factors, based on the particular factors found and the slightly

aggravated sentence the court imposed (a mere six months above the presumptive term), we

conclude beyond a reasonable doubt that any alleged Blakely error “did not contribute to or

affect the sentencing outcome here.” Resendis-Felix, 209 Ariz. 292, ¶ 11, 100 P.3d at 460.

Thus, any alleged Blakely error was harmless beyond a reasonable doubt.

DISPOSITION

¶35 Aleman’s convictions and sentences are affirmed.

____________________________________

JOHN PELANDER, Chief Judge

E S P I N O S A, Judge, specially concurring.

¶36 I fully concur in the analysis of the motion-to-suppressissue and the ultimate

disposition affirming Aleman’s convictions and sentences. With respect to the Blakely

issues, however, Iwould find no error, and therefore no need to engage in any harmless error
23

review. Under Blakely, Aleman’s prior conviction, by itself, authorized the aggravated range

and permitted the trial court to impose a sentence anywhere up to the prescribed statutory

maximum. State v. Estrada, 446 Ariz. Adv. Rep. 30 (Ct. App. March 4, 2005); State v.

Chiappetta, ___ Ariz. ___, 107 P.3d 366 (App. 2005) (Espinosa,J.); see State v. Martinez,

209 Ariz. 280, 100 P.3d 30 (App. 2004) (one Blakely-compliant aggravator permits

sentencing within expanded statutory range).

¶37 It also bears mention that the dissent’s view that any Blakely error, by its very

nature, isstructural and, therefore, not subject to harmless error review has been rejected by

both divisions of this court. See State v. Henderson, 209 Ariz. 300, 100 P.3d 911 (App.

2004); State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004). Furthermore, the

notion that a sentencing factor admitted by a defendant is subject to independent review

pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969),

needlessly elevatesformoversubstance, particularly on the facts here. There is no question

or doubt about the status of Aleman’ssuspended license, which the jury expressly found in

its verdicts on the DUI charges, or his prior DUI conviction. Indeed, Aleman knowingly and

with the assistance of counsel stipulated to the former and acknowledged the latter to the

court atsentencingand does not contest those facts orraise the theory adopted by the dissent.

¶38 Our supreme court has said: “In cases in which a defendant stipulates,

confesses or admits to facts sufficient to establish an aggravating circumstance, we will

regard that factor as established.” State v. Ring, 204 Ariz. 534, 563, 65 P.3d 915, 944 (2003);

see also State v. Finch, 205 Ariz. 170, 68 P.3d 123 (2003) (defendant’s admission that he had

shot victim to prevent his reporting the robbery fully established pecuniary gain motive);
24

State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 30, 99 P.3d 35, 42 (App. 2004) (defendant’s trial

testimony constituted “facts ‘admitted by the defendant’” for purposes of sentence

aggravation comporting with Blakely); Wickliff v. State, 816 N.E.2d 1165, 1167 (Ind. Ct.

App. 2004) (defendant’s statements at sentencing were facts admitted by him and were

“exempt from the Apprendi/Blakely rule”); cf. State v. Montaño, 206 Ariz. 296, 77 P.3d 1246

(2003) (defendant’s introduction of mitigation evidence relating to prisoner status was

admission of in-custody status for sentence aggravation).

¶39 Moreover, it is difficult to comprehend how even a routine stipulation or

admission by a defendant can provide an element of an offense or the factual basis for a

finding of guilt and judgment of conviction, as occurred here and has occurred in countless

other cases, yet would be deemed insufficient forsentencingpurposes absent an independent

Boykin advisory. It was no surprise to Aleman, nor has it ever surprised any criminal

defendant assisted by competent counsel, that such admissions could or would affect their

sentences. In short, the dissent’s view has never been the law, and Blakely does not compel

such an expansion of the Sixth Amendment.

¶40 Finally, even if harmless error analysis were appropriate or required, I agree

that any alleged Blakely error here would be harmless beyond a reasonable doubt.

____________________________________

PHILIP G. ESPINOSA, Judge

F L Ó R E Z, Presiding Judge, concurring in part and dissenting in part.

¶41 I concur with the decision to affirm Aleman’s convictions. I also join Judge

Pelander in rejectingthe state’s argument that, even when a trial court finds both aggravating
25

and mitigating factors, a single Blakely-compliant or -exempt aggravating factor authorizes

the court to find additional aggravating factors by reasonable evidence. I dissent, however,

because I believe the trial court erred by considering at least one aggravating factor that was

neither exempt from nor compliant with Blakely. Because I agree with Judge Eckerstrom’s

special concurrence in State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004), that

any Blakely error is structural and, therefore, not subject to harmless error analysis, I would

remand the case for resentencing.

¶42 I would find Blakely error because, in determiningAleman was eligible for an

aggravated sentence, the court weighed at least one non-Blakely-exempt fact that was neither

found by the jury beyond a reasonable doubt nor admitted by Aleman under circumstances

Ibelieve are implicitly required underBlakely and Apprendi—namely, that Aleman admitted

the alleged fact in a knowing, intelligent, and voluntary waiver of hisright to have it decided

by a jury beyond a reasonable doubt. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L. Ed. 2d 274 (1969) (record in criminal trial mustshowthat a guilty plea was knowingly,

intelligently, and voluntarily made).

¶43 Apprendi made clear that, other than the fact of a prior conviction, a criminal

defendant has the right to have a jury determine beyond a reasonable doubt “any fact that

increasesthe penalty for a crime beyond the prescribed statutory maximum.” Id. at 490, 120

S. Ct. at 2362-63, 147 L. Ed. 2d at 455. “Almost without exception, the requirement of a

knowing and intelligent waiver has been applied . . . to those rights which the Constitution

guarantees to a criminal defendant in order to preserve a fair trial.” Schneckloth v.

Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 2052-53, 36 L. Ed. 2d 854, 868 (1973); see
26

also Boykin, and State v. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980) (extending knowing,

voluntary and intelligent standard to all casesin which defendant waivesright to a jury trial);

State v. Conroy, 168 Ariz. 373 , 375, 814 P.2d 330, 332 (1991)(“[T]he knowing, voluntary,

and intelligent waiverstandard articulated in Boykin applies to all waivers of a jury trial, for

that standard applies to the waiver of any constitutional right.”). The rights Blakely and

Apprendi protect fall within that protected category, and exist at the core of our criminal

justice system. In Blakely, the Supreme Court expressed its “commitment” to insure that the

right to a jury trial “is no mere procedural formality, but a fundamental reservation of power

in our constitutional structure.” ___ U.S. at ___, 124 S. Ct. at 2538-39. I see no reason to

carve out an exception to the general rule expressed in Schneckloth. 

¶44 Therefore, although the majority correctly points out that Aleman, in the face

of undisputed evidence presented at trial, conceded at sentencing that “he knew he was

impaired and shouldn’t have been driving” at the time ofthe accident, that statement cannot

be considered an admission forthe purpose of complyingwith Blakely. Had Aleman known

the consequences of his statement—that the fact he “admitted” would be used against him

to aggravate his sentence—and had he understood that he had a right to require the state to

prove this fact beyond a reasonable doubt to a jury, he might well have not conceded it at

sentencing.

____________________________________

M. JAN FLÓREZ, Presiding Judge