                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
              SAMMANTHA ALLEN, JOHN MICHAEL ALLEN,
                          Petitioners,

                                    v.

 THE HONORABLE TERESA A. SANDERS, JUDGE OF THE SUPERIOR COURT OF
     THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                          Respondent Judge,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CR-16-0234-PR
                        Filed November 7, 2016

          Appeal from the Superior Court in Maricopa County
               The Honorable Teresa A. Sanders, Judge
                         No. CR2011-138856
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                239 Ariz. 360, 372 P.3d 304 (App. 2016)
                              VACATED

COUNSEL:

Marty Lieberman, Legal Defender, Maricopa County Office of the Legal
Defender, John Ronan Curry (argued), Jeremy Bogart, Deputy Legal
Defenders, Phoenix, Attorneys for Sammantha Allen

Bruce Peterson, Maricopa County Office of the Legal Advocate, Kerri L.
Chamberlin (argued), Gary Beren, Robert E. Reinhardt, Deputy Legal
Advocates, Phoenix, Attorneys for John Allen

William G. Montgomery, Maricopa County Attorney, Karen Kemper
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Amy P. Knight, Kuykendall & Associates, Tucson, Attorneys for Amicus
Curiae Arizona Attorneys for Criminal Justice
                       ALLEN V. SANDERS (STATE)
                          Opinion of the Court

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL and TIMMER
joined. JUSTICE BOLICK concurred in the result.

CHIEF JUSTICE BALES, opinion of the Court:

¶1            After a defendant is indicted for first degree murder, if the
state intends to seek the death penalty, it provides notice and alleges
aggravating circumstances. The defendant may then request the trial court
to determine if probable cause exists for the aggravators under the
procedures outlined in Chronis v. Steinle, 220 Ariz. 559, 560 ¶ 1, 208 P.3d 210,
211 (2009). In Sanchez v. Ainley, 234 Ariz. 250, 251–52 ¶ 1, 321 P.3d 415, 416–
17 (2014), we held that a defendant is entitled to a “Chronis hearing” even if
the grand jury determined that probable cause exists for the alleged
aggravating circumstances.

¶2            In this case, the State seeks the death penalty and alleges
aggravating circumstances under A.R.S. § 13-751(F)(2) based on the
defendants’ prospective convictions for “serious offenses” concurrently
charged by the grand jury. The issue here concerns how the trial court, in
the context of a Chronis hearing, should determine if probable cause exists
to support that aggravator. We hold that the trial court must independently
determine if a concurrently charged offense qualifies as a serious offense,
but the court should accept the grand jury’s determination that probable
cause exists for the concurrently charged offense.

                                       I.

¶3             A grand jury indicted Sammantha Allen and her husband,
John Allen, for the first degree felony murder of Sammantha’s ten-year-old
cousin, Ame. The indictment concurrently charged the Allens with
multiple counts of child abuse in violation of A.R.S. § 13–3623(A)(1). The
State subsequently filed a notice of intent to seek the death penalty and
alleged the child abuse offenses as “serious offense” aggravating
circumstances under A.R.S. § 13–751(F)(2). This aggravator applies when a
defendant has been convicted of a “serious offense” either prior to or
contemporaneously with the defendant’s conviction for first degree murder
in the case in which the death penalty is sought.



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                        ALLEN V. SANDERS (STATE)
                           Opinion of the Court

¶4            At the Allens’ request, the trial court conducted a Chronis
hearing pursuant to Arizona Rule of Criminal Procedure 13.5(c). The court
ruled that a conviction on any of the concurrently charged child-abuse
counts would qualify as a conviction of a serious offense for the (F)(2)
aggravator. The Allens argued that the court also should independently
determine if probable cause exists for those counts. The court instead
concluded that probable cause exists for the serious offense aggravators
because the “grand jury found probable cause to support each [child abuse]
count of the Indictment when it returned a true bill.”

¶5             The Allens filed a petition for special action in the court of
appeals. A divided panel of the court granted relief, holding that Sanchez
requires the trial court to independently determine whether probable cause
supports the concurrently charged child-abuse offenses that the State
alleges are (F)(2) serious offenses. Allen v. Sanders, 239 Ariz. 360, 362 ¶ 6,
372 P.3d 304, 306 (App. 2016). A dissenting judge concluded that the trial
court did not err by relying on the grand jury’s probable cause
determination. Id. at 366 ¶ 25, 372 P.3d at 310 (Cattani, J., dissenting).

¶6              We granted the State’s petition for review to resolve a
recurring legal issue of statewide importance. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                       II.

¶7              Under Arizona Rule of Criminal Procedure 13.5(c), the state’s
filing of a notice of intent to seek the death penalty and its list of aggravating
circumstances serves to “amend the charging document, and no further
pleading needs to be filed.” That rule also allows a defendant to “challenge
the legal sufficiency of an alleged aggravating circumstance” by filing a
motion pursuant to Rule 16. In Chronis, we held that Rule 13.5(c) entitles a
defendant to request the trial court to determine, based on an evidentiary
hearing, if probable cause exists to support the alleged aggravators. 220
Ariz. at 563 ¶ 20, 208 P.3d at 214.

¶8            We subsequently ruled in Sanchez that a defendant is entitled
to a Chronis hearing with respect to the state’s alleged aggravating
circumstances even if a grand jury has found that they are supported by
probable cause. 234 Ariz. at 251–52 ¶ 1, 321 P.3d at 416–17. This holding
reflected our conclusion that, under existing rules and statutes, a grand

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                      ALLEN V. SANDERS (STATE)
                         Opinion of the Court

jury’s duty is solely to charge “public offenses,” and thus “a grand jury is
not permitted to determine whether probable cause supports aggravating
circumstances alleged in a capital case.” Id. at 253 ¶ 11, 321 P.3d at 418.
Apart from noting the grand jury’s limited authority, we also observed that
“because Rule 13.5(c) affords superior procedural rights to a defendant in a
capital case, any grand jury findings concerning aggravating circumstances
cannot deprive a defendant of a timely requested Chronis hearing.” Id. at
254 ¶ 17, 321 P.3d at 419.

¶9            This case poses an issue distinct from that addressed in
Sanchez: if a defendant challenges the legal sufficiency of an (F)(2)
aggravating circumstance that depends on a concurrently charged offense
for which a grand jury has found probable cause, must the trial court in a
Chronis hearing independently determine probable cause for that offense?
Because this issue involves the interpretation of statutes and rules, our
review is de novo. Id. at 252 ¶ 6, 321 P.3d at 417.

¶10          In order to establish the (F)(2) aggravating circumstance, the
state must prove that:

       The defendant has been or was previously convicted of a
       serious offense, whether preparatory or completed.
       Convictions for serious offenses committed on the same
       occasion as the homicide, or not committed on the same
       occasion but consolidated for trial with the homicide, shall be
       treated as a serious offense under this paragraph.

A.R.S. § 13-751(F)(2). In this case, the State contends that the concurrently
charged child-abuse counts are “serious offenses” that will establish the
(F)(2) aggravator if the jury ultimately returns a guilty verdict on any of
those counts.

¶11            The Allens timely challenged the legal sufficiency of this
aggravating circumstance under Rule 13.5(c). After holding a Chronis
hearing, the trial court found probable cause. The Allens do not challenge
the trial court’s legal conclusion that the concurrently charged child-abuse
counts are “serious offenses”; they are “dangerous crimes against
children.” See A.R.S. §§ 13-705(P), -751(J)(6). The Allens instead argue, and
the court of appeals agreed, that the trial court erred by not independently


                                     4
                       ALLEN V. SANDERS (STATE)
                          Opinion of the Court

determining if probable cause exists for the child-abuse counts and instead
accepting the grand jury’s findings in that regard.

¶12            Sanchez, the Allens note, states that a defendant’s right to a
Chronis hearing is not “affected by the grand jury’s findings” of probable
cause for alleged aggravating factors. See 234 Ariz. at 254 ¶ 14, 321 P.3d at
419. Sanchez also observed that “[a] Chronis hearing permits the defendant
to review written statements made by the state’s witnesses, cross-examine
those witnesses, and present evidence to rebut the state’s alleged
aggravators.” Id. ¶ 15, 321 P.3d at 419. Consistent with these statements,
and Sanchez’s recognition that Rule 13.5(c) affords “superior procedural
rights to a defendant in a capital case,” id. ¶ 17, 321 P.3d at 419, the Allens
argue that a trial court addressing a challenge to an (F)(2) aggravator based
on a concurrently charged serious offense must permit the defendant to
contest the state’s evidence in a Chronis hearing and then independently
determine if probable cause supports the charged offense.

¶13           We reject the Allens’ interpretation of Sanchez and Rule 13.5(c)
for several reasons. This case differs from Sanchez in that the grand jury
here was not asked to find probable cause for the (F)(2) aggravator itself,
but instead for the underlying child-abuse counts – a task within the grand
jury’s province – and the trial court did hold a Chronis hearing at the Allens’
request. Moreover, although we spoke broadly in Sanchez about a
defendant’s right to an evidentiary hearing under Chronis, our statements
should not be read as holding that Rule 13.5(c) invariably requires an
evidentiary hearing whenever a defendant challenges the legal sufficiency
of an alleged aggravating circumstance.

¶14           Some challenges under Rule 13.5(c) turn on purely legal
questions; others may turn on arguments over what a factfinder might
reasonably conclude from facts that are not contested.             In such
circumstances, a trial court properly can determine the legal sufficiency of
an alleged aggravator without holding an evidentiary hearing. In contrast,
a defendant generally is entitled to an evidentiary hearing under Chronis
and Sanchez to determine whether probable cause exists for disputed factual
elements of alleged aggravating circumstances, such as whether a murder
was committed in an especially heinous, cruel or depraved manner for
purposes of the (F)(6) aggravating circumstance. See Chronis, 220 Ariz. at
560 ¶¶ 1–2, 208 P.3d at 211.


                                      5
                        ALLEN V. SANDERS (STATE)
                           Opinion of the Court

¶15           We acknowledge that a capital defendant could benefit if we
interpreted Rule 13.5(c) as affording a right to have the trial court
independently determine if probable cause supports a concurrently
charged offense identified as a “serious offense” for the (F)(2) aggravating
circumstance. A probable cause hearing would allow the defendant to
challenge the state’s evidence and, if the court is persuaded that probable
cause is lacking, to seek a ruling dismissing the (F)(2) aggravator from the
case. These potential benefits, however, themselves raise problems that
persuade us to reject this approach.

¶16            Allowing a trial court to independently determine whether
probable cause exists to support a concurrently charged offense is at odds
with our well-settled case law that prohibits trial judges from weighing the
nature and sufficiency of the evidence presented to the grand jury. State ex
rel. Preimsberg v. Rosenblatt, 112 Ariz. 461, 462, 543 P.2d 773, 774 (1975) (“[It
is a] long established rule that an indictment valid on its face is not subject
to challenge on the ground that the grand jury acted on the basis of
inadequate or incompetent evidence.”); see also State ex rel. Collins v. Kamin,
151 Ariz. 70, 72, 725 P.2d 1104, 1106 (1986) (holding that a trial court erred
by weighing the quantity and quality of the evidence presented to the grand
jury); Crimmins v. Superior Court, 137 Ariz. 39, 42–43, 668 P.2d 882, 885–86
(1983) (“Those cases clearly prohibit a trial court from considering an attack
on an indictment based on the nature, weight or sufficiency of the evidence
presented to the grand jury.”).

¶17           This concern is not answered by noting that a trial court’s
ruling in response to a Rule 13.5(c) motion addresses only the legal
sufficiency of the aggravating circumstance and would not affect the
submission of the concurrently charged offense itself to the jury. That
scenario raises the anomalous potential that a jury might ultimately find
beyond a reasonable doubt that a defendant is guilty of a concurrently
charged offense that legally qualifies as a “serious offense” under (F)(2), but
the trial court’s pretrial determination that probable cause was lacking
would preclude the jury from considering that aggravating circumstance,
even though it would be legally and factually supported.

¶18            Defendants in capital cases have means other than a Chronis
hearing to test the legal sufficiency of concurrently charged offenses.
Although a defendant cannot challenge an indictment based on the
sufficiency of the evidence presented to a grand jury, a defendant may seek

                                       6
                      ALLEN V. SANDERS (STATE)
                         Opinion of the Court

a redetermination of probable cause if the evidence was not fairly and
impartially presented. See Ariz. R. Crim. P. 12.9; Crimmins, 137 Ariz. at 42–
43, 668 P.2d at 886–87. And defendants may, after the close of the
prosecution’s evidence at trial, move for acquittal on the ground that “there
is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
Of course, a concurrently charged offense for which a defendant is
acquitted cannot serve as a “serious offense” for purposes of the (F)(2)
aggravator.

¶19            In light of these considerations, we hold that when a
defendant challenges the legal sufficiency of an alleged (F)(2) aggravating
circumstance that turns on a concurrently charged offense, the trial court
must independently determine if the offense qualifies as a serious offense,
but the court should accept the grand jury’s determination that probable
cause exists for that offense. Our holding is limited to the circumstances of
the (F)(2) aggravator and is not intended to narrow the scope of a
defendant’s rights under Chronis and Sanchez to a probable cause hearing
when appropriate regarding other aggravating circumstances.

¶20           We remark briefly on the concurring opinion, which criticizes
Chronis and Sanchez for creating a right to a hearing in conflict with the
“plain language” of Rule 13.5(c) and our rulemaking process. Infra ¶¶ 27–
29. “Plain language” cannot resolve the scope of a defendant’s right to
challenge an alleged aggravator, as the Court explained in Chronis, because
the rules do not define the term “legal sufficiency” and case law in other
contexts has construed the term to embrace some factual – as distinct from
purely legal – challenges. 220 Ariz. at 560–61 ¶¶ 7–11, 208 P.3d at 211–12.
The Court thus considered the background to Rule 13.5(c). Noting that the
rule’s proponent – the State of Arizona – had expressly contemplated that
a challenge to legal sufficiency could encompass a determination of
probable cause, the Court concluded that it had intended in adopting the
rule to “grant a right to a probable cause determination on aggravators” as
proposed by the petition. Id. at 562 ¶ 15, 208 P.3d at 213. That right,
contrary to the concurring opinion, does not invariably involve a “full-
blown” evidentiary hearing, but instead the more limited probable cause
determination in a Rule 5 proceeding. Moreover, as we have explained
above, some challenges to the legal sufficiency of aggravators do not
involve probable cause determinations as to factual matters. Although it
might be desirable to amend Rule 13.5(c) to more clearly delineate the rights
it affords defendants, the concurrence is unconvincing in contending that

                                     7
                       ALLEN V. SANDERS (STATE)
                          Opinion of the Court

fidelity to the rulemaking process argues for construing the rule, contrary
to Chronis and Sanchez, as not affording “a right to anything other than filing
a motion.” Infra ¶ 27.

                                     III.

¶21           We vacate the court of appeals’ opinion, affirm the trial
court’s ruling that probable cause exists for the (F)(2) aggravating
circumstance, and remand to the trial court for further proceedings
consistent with this opinion.




                                      8
                      ALLEN V. SANDERS (STATE)
                JUSTICE BOLICK, Concurring in the Result

BOLICK, J., concurring in the result:

¶22            The dispute here arises from confusion sown by prior
opinions that strayed from the plain language of Rule 13.5(c). Although I
join my colleagues in the result in this case, I believe we should return to
the rule’s original language and make any appropriate changes through our
rulemaking process rather than on a case-by-case basis.

¶23           The relevant text of Rule 13.5(c) reads, “A defendant may
challenge the legal sufficiency of an alleged aggravating circumstance by
motion filed pursuant to Rule 16.” Two observations about this language
are pertinent. First, the rule says nothing about an evidentiary hearing,
much less about a “right” to such hearing. Second, it does not indicate a
uniform approach to the different types of aggravating circumstances.

¶24           Hence, applying the rule’s simple language, the trial court
upon receiving defendant’s Rule 13.5(c) motion properly could have
determined the legal sufficiency of the (F)(2) aggravator as a matter of law.
Or, if good cause was shown, it could have ordered an evidentiary hearing.
The appellate courts could then review that decision for abuse.

¶25           In Chronis, the first case to construe this language, the Court
on multiple occasions seemed to recognize the rule’s modest scope. See id.,
562 ¶ 15, 208 P.3d at 213 (“Rule 13.5(c) is most reasonably interpreted as
allowing for a probable cause hearing.”); id. at ¶ 18, 208 P.3d at 213 (“Rule
13.5(c) provides a defendant with an avenue for requesting a probable cause
determination.”); and, most unmistakably, id. at 560 ¶ 1, 208 P.3d at 211
(“We hold that [Rule] 13.5(c) permits a defendant in a capital murder case
to request a determination of probable cause as to alleged aggravating
circumstances.”). But in the midst of this careful language, the Court
unhitched its jurisprudence from the rule by declaring a “right to a probable
cause determination,” id. at 562 ¶ 15, 208 P.3d at 213, through a Rule 5
proceeding. Id. at ¶ 18, 208 P.3d at 213. Thus was the “right” to a full-blown
“Chronis hearing” born.

¶26            That right gained greater substance in Sanchez, which held
that “the trial court must grant a defendant’s timely request for a hearing
under Rule 13.5(c), even if the grand jury has previously made a probable-
cause determination as to those alleged aggravating circumstances.” 234
Ariz. at 252 ¶ 1, 321 P.3d at 417. Such a hearing, to which “the defendant

                                        9
                      ALLEN V. SANDERS (STATE)
                JUSTICE BOLICK, Concurring in the Result

has a procedural right” triggered by the prosecutor’s notice of intent to seek
the death penalty, “permits the defendant to review written statements
made by the state’s witnesses, cross-examine those witnesses, and present
evidence to rebut the state’s alleged aggravators.” Id. at 254 ¶¶ 14-15, 321
P.3d at 419. Given the Court’s categorical language, it is understandable
that defendants and the court of appeals majority believed that Rule 13.5(c),
as the Court evolved it in Chronis and Sanchez, required the trial court to
independently determine whether probable cause exists for counts
underlying the (F)(2) aggravator.

¶27           The Court today walks back its broad interpretation of the
rule to a position more consistent with its plain language, holding that at
least in the (F)(2) context, a defendant is not necessarily entitled to an
evidentiary hearing. But it emphasizes that this decision “is not intended
to limit the scope of a defendant’s rights under Chronis and Sanchez to a
probable cause hearing when appropriate regarding other aggravating
circumstances.” Because I do not read Rule 13.5(c) to confer a right to
anything other than filing a motion, I cannot join the Court’s opinion.

¶28           Rule 13.5(c) is not constitutionally mandated, but reflects this
Court’s policy decision to expand defendants’ rights pursuant to its
procedural rulemaking authority under Ariz. Const. art. 6, § 5(5). The rules
on their face should fairly reflect the rules in practice. But here, a litigant,
lawyer, or trial court could not understand the “meaning” of Rule 13.5(c)
without reading three cases that modify either the rule or prior cases
modifying the rule. And today’s decision invites additional sequels.

¶29            The rulemaking process allows members of the public to
weigh in so that the Court can take into account competing interests and
perspectives. Defendants and their amici make a convincing argument that
an independent, pre-trial probable cause determination of aggravators is
essential because it makes an enormous difference whether a case proceeds
with a capital rather than non-capital offense. By contrast, full-blown
evidentiary hearings may implicate crime victims’ constitutional rights to a
speedy trial, and to “have all rules governing criminal procedure . . . protect
victims’ rights. . . .” See Ariz. Const. art. 2, § 2.1(A)(10)-(11). The original
rule, as I read it, appropriately conferred broad discretion on trial courts to
determine the merits of a legal sufficiency motion, whether to hold a
hearing, and the contours of such a hearing. Changes to that rule should be


                                      10
                     ALLEN V. SANDERS (STATE)
               JUSTICE BOLICK, Concurring in the Result

determined in a venue that takes account of all potential ramifications,
rather than in an ad hoc setting of an individual case.

¶30           For the foregoing reasons, I respectfully concur in the result
with the hope that the rule can be reconsidered in a more appropriate
forum, either to affirm the original language or to modify it to more
accurately reflect its judicial evolution.




                                    11
