                     SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                  )   Arizona Supreme Court
                                   )   No. CR-12-0018-PR
                         Appellee, )
                                   )   Court of Appeals
                 v.                )   Division One
                                   )   No. 1 CA-CR 10-0075
AUSTIN JAMES BONFIGLIO,            )
                                   )   Maricopa County
                        Appellant. )   Superior Court
                                   )   No. CR2009-122982-001
                                   )
                                   )
                                   )   O P I N I O N
__________________________________)


        Appeal from the Superior Court in Maricopa County
         The Honorable Lisa Ann VandenBerg, Commissioner

                            AFFIRMED
________________________________________________________________

          Opinion of the Court of Appeals, Division One
             228 Ariz. 349, 266 P.3d 375 (App. 2011)

                            AFFIRMED
________________________________________________________________


THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                Phoenix
     By   Kent E. Cattani, Chief Counsel,
          Criminal Appeals/Capital Litigation
          Angela Corinne Kebric, Assistant Attorney General
          Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER           Phoenix
     By   Tennie B. Martin, Deputy Public Defender
          Mikel P. Steinfeld, Deputy Public Defender
Attorneys for Austin James Bonfiglio
________________________________________________________________




                              - 1 -
B R U T I N E L, Justice

¶1          A court must set forth on the record at sentencing one

of   the   specific      statutory   aggravating         factors      enumerated        in

A.R.S. § 13-701(D)(1)–(23) before it may impose an aggravated

sentence.     We hold that once the court identifies one of these

factors, it may rely on the “catch-all” aggravator provision in

§ 13-701(D)(24) to increase the sentence even if the court does

not expressly use the specific statutory aggravator as a basis

for increasing the sentence.

                                        I.

¶2          On    November     25,   2009,    a    jury       found    Austin      James

Bonfiglio    guilty      of   aggravated     assault,     a    class     3    dangerous

felony.     As an aggravating factor, the jury found that Bonfiglio

“had the ability to walk away from the confrontation,” but had

not done so.

¶3          Before sentencing, Bonfiglio admitted two prior felony

convictions, a specific statutory aggravating factor under § 13-

701(D)(11).        At     sentencing,      the    trial       court     acknowledged

Bonfiglio’s      prior   convictions    and      also    noted    that       he   was   on

probation when the offense occurred.                    The court recognized on

the record that Bonfiglio’s prior convictions subjected him to

an enhanced sentence range:

      [A]t this point, you have already admitted at a trial
      on the priors, two prior felony convictions.      The
      court is cognizant of the record previously made on

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        that date[;] given that, the court will sentence you
        under a range provided by the statute for two
        historical priors for a class three felony under the
        non[-]dangerous categories, [§] 13-702.

        The    trial     court    then    imposed        an    aggravated       sentence,

stating:

        With that, I am cognizant of the facts [sic] that
        because you were on probation at the time of the
        offense which was also resolved at trial on the
        priors, that the minimum you can receive is the
        presumptive which is a [sic] 11.25 years.

        However, as I stated, the court has considered the one
        aggravating factor the jury found.    I have considered
        all of the information that has been presented and
        this court does find it appropriate to order that you
        serve a term of 13 years, a slightly aggravated
        term[,] in the Department of Corrections.

¶4             Bonfiglio appealed, arguing that the trial court’s use

of   the      “catch-all”   aggravating         factor    found     by    the   jury   was

improper.        State v. Bonfiglio, 228 Ariz. 349, 352 ¶ 9, 266 P.3d

375, 378 (App. 2011).            The court of appeals affirmed Bonfiglio’s

conviction and sentence.           Id. at 355 ¶ 24, 266 P.3d at 381.

¶5             The court recognized that the jury-found aggravator was

a    “catch-all”       aggravator        because     it       was   not    specifically

statutorily enumerated, id. at 354 ¶ 19, 266 P.3d at 380, and as

such,      could   not    serve    as     the     sole    basis     for    imposing     an

aggravated sentence, id. (citing State v. Schmidt, 220 Ariz.

563, 566 ¶ 10, 208 P.3d 214, 217 (2009)).                           The court noted,

however, that the trial court was required to consider the prior

felony        convictions    as    an     aggravating          circumstance      and   to

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sentence Bonfiglio under the range for a repetitive offender.

Id. at 354–55 ¶¶ 22, 24, 266 P.3d at 380–81 (citing A.R.S. § 13-

701(D)).          The   court     concluded      that   the     prior    convictions

“exposed [Bonfiglio] to the maximum sentence authorized by the

applicable sentencing statute for repetitive offenders, whether

or not the [trial] court expressly stated that it had used the

criminal history to aggravate the sentence.”                        Id. at 355 ¶ 24,

266 P.3d at 381.           As a result, the court of appeals determined

that the trial court’s use of the “catch-all” aggravator was not

error.     Id.

¶6          The court expressly disagreed with State v. Zinsmeyer,

222 Ariz. 612, 218 P.3d 1069 (App. 2009).                   Bonfiglio, 228 Ariz.

at 355 ¶ 23, 266 P.3d at 381.                    In Zinsmeyer, the court of

appeals     vacated        an   aggravated       sentence      and     remanded      for

resentencing       because      the   trial     court   did     not     rely    on   the

defendant’s prior felony conviction as an aggravator, although

the prior conviction was used to enhance the sentence.                               222

Ariz. at 621–23 ¶¶ 20–26, 218 P.3d at 1078–80.                      Because the only

aggravating       factor      cited   was   a   “catch-all”     factor,        Zinsmeyer

concluded        that   the     aggravated      sentence      was    “illegal,”      and

therefore        constituted     fundamental,      prejudicial         error.        Id.

¶¶ 24–26.

¶7          We granted review to answer a question of statewide

importance and to resolve the conflict in the court of appeals’

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opinions.     We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                                      II.

¶8          A trial court may impose a maximum prison term only if

one or more statutory aggravating circumstances are found or

admitted.     A.R.S. § 13-701(C).       Section 13-701(D) lists twenty-

three   enumerated     aggravating    factors,      including    prior     felony

convictions,    §    13-701(D)(11),    and   one    “catch-all”     aggravator,

§ 13-701(D)(24), which permits the trier of fact to consider

“[a]ny other factor that the state alleges is relevant to the

defendant’s    character      or   background       or   to   the   nature      or

circumstances of the crime.”

¶9          We have held that an aggravated sentence based solely

on the “catch-all” aggravator violates due process because that

aggravator is “patently vague.”1        Schmidt, 220 Ariz. at 566 ¶¶ 9–

10, 208 P.3d at 217.       But Schmidt permits use of the “catch-all”

aggravator in sentencing “[w]hen one or more clearly enumerated

aggravators    are    found   consistent     with   Apprendi.”       Id.    ¶   11

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

that event, “the ‘elements’ of the aggravated offense will have
1
     Schmidt interpreted an older version of the “catch-all”
aggravator, which stated “any other factors which the court may
deem appropriate to the ends of justice.” 220 Ariz. at 564 ¶ 1,
208 P.3d at 215 (quoting A.R.S. § 13-702(D)(13)). Neither party
argues that the change in the statute warrants a different
resolution than that reached in Schmidt.

                                     - 5 -
been identified with sufficient clarity to satisfy due process.”

Id.

¶10           Schmidt does not require a trial court to state that it

relied       on    one    of   the      specifically     enumerated       factors    to

aggravate a defendant’s sentence in order to use the “catch-all”

aggravator.         Rather, Schmidt permits a trial court to use a

“catch-all” aggravator to impose a sentence up to the statutory

maximum      as    long   as   a   properly    found     specifically      enumerated

aggravating factor made the defendant eligible for a sentence

greater than the presumptive.                See State v. Carreon, 211 Ariz.

32, 33 ¶¶ 6–7, 116 P.3d 1192, 1193 (2005) (finding of historical

prior convictions alone exposed the defendant to an aggravated

sentence); State v. Martinez, 210 Ariz. 578, 584–86 ¶¶ 21, 27,

115 P.3d 618, 624–26 (2005) (finding of a “single aggravating

factor establishes the facts legally essential to expose the

defendant” to an aggravated sentence).

¶11           In this case, the trial court stated on the record that

it    used    the    prior     convictions        to   sentence   Bonfiglio     as    a

repetitive offender.            See State v. Ritacca, 169 Ariz. 401, 403,

819 P.2d 987, 989 (App. 1991) (holding that a trial court may

use   prior       convictions      to   enhance    and   aggravate    a    sentence).

This finding on the record satisfies Schmidt.                     With due process

concerns allayed, the judge could rely on the jury’s finding of

the “catch-all” factor.

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¶12            State v. Harrison, 195 Ariz. 1, 985 P.2d 486 (1999),

does not compel a different result.                       In Harrison, we noted that

§ 13-701(C) requires the judge to set forth factual findings

supporting aggravating circumstances “on the record at the time

of sentencing.”            Id. at 3 ¶ 6, 985 P.2d at 488 (discussing § 13-

702(B), now renumbered as § 13-701(C)).                                We did not require

trial       judges    to    recite    a   “specific        litany”          or    make   “formal

findings or conclusions.”                   Id. at 4 ¶ 12, 985 P.2d at 489.

Rather, Harrison simply required that the sentencing transcript

identify        the       court’s    reasons        for        imposing          an   aggravated

sentence.          Id. ¶ 13.

¶13            The trial court here complied with § 13-701(C) and

Harrison.           The    court    found      on   the    record       Bonfiglio’s           prior

convictions, qualifying him for an aggravated sentence.                                  The way

was   thus      appropriately        paved      for      the    court       to    consider         the

“catch-all”         aggravator,       which     was      also    plainly         found       in    the

sentencing transcript.

¶14            Given       the   confusion      that      gave     rise      to       this    case,

however,      Harrison’s         instruction        is    worth    emphasizing.               Trial

courts should clearly “articulat[e] at sentencing the factors

the     judge       considered       to   be    aggravating            or    mitigating           and

explain[] how th[ose] factors led to the sentence[] imposed.”

Id.     ¶    12.       A    statement     that      the        prior    conviction           was     a

prerequisite for an aggravated sentence, even if the court did

                                            - 7 -
not rely upon it as its reason for aggravating the sentence,

will inform the defendant of the court’s rationale for imposing

the   sentence        and,    as    expressed     in      Harrison,   will      “enable    an

appellate       court    to        determine      whether       the   trial      judge    has

correctly       considered         the     specific       aggravating      or    mitigating

circumstances.”         Id. ¶ 11.

                                             III.

¶15         We conclude that the trial court did not err in using

the “catch-all” aggravator as a basis for imposing an aggravated

sentence        once    the        court    found      a      specifically       enumerated

aggravating factor.                Accordingly, we overrule Zinsmeyer to the

extent     it    is     inconsistent         with      this     opinion.         We   affirm

Bonfiglio’s       sentence         and   affirm     the    opinion    of   the    court    of

appeals.


                                     __________________________________
                                     Robert M. Brutinel, Justice

CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
Scott Bales, Vice Chief Justice


__________________________________
A. John Pelander, Justice




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__________________________________
Peter J. Cahill, Judge*


* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Peter J. Cahill, Presiding Judge of the Superior
Court in Gila County, was designated to sit in this matter.




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