                                                                    FILED BY CLERK
                             IN THE COURT OF APPEALS                     JUL 30 2009
                                 STATE OF ARIZONA                       COURT OF APPEALS
                                   DIVISION TWO                           DIVISION TWO




THE STATE OF ARIZONA,                         )
                                              )
                              Respondent,     )        2 CA-CR 2007-0401-PR
                                              )        DEPARTMENT B
                   v.                         )
                                              )        OPINION
DOUGLAS SCOTT PERRIN,                         )
                                              )
                                Petitioner.   )
                                              )


   PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20054034

                        Honorable Christopher C. Browning, Judge

                        REVIEW GRANTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                             Tucson
                                                             Attorneys for Respondent

Isabel G. Garcia, Pima County Legal Defender
 By Scott A. Martin                                                            Tucson
                                                               Attorneys for Petitioner


V Á S Q U E Z, Judge.
¶1              This post-conviction relief proceeding returns to us on remand from the

Arizona Supreme Court for us to reconsider our prior memorandum decision in light of its

opinion in State v. Schmidt, 220 Ariz. 563, 208 P.3d 214 (2009). After further consideration,

we vacate our prior decision, vacate Perrin’s sentence for manslaughter, and remand for

resentencing.

                                  Procedural Background

¶2              Pursuant to a plea agreement encompassing charges in two separate

indictments, Perrin was convicted of manslaughter, driving with a blood alcohol

concentration of .08 or more, and aggravated driving under the influence of an intoxicant

(DUI) with a minor present. For the first two convictions, the trial court sentenced him to

concurrent, substantially aggravated terms of imprisonment, the longest of which was 12.5

years, and it imposed a ten-year term of intensive probation for the aggravated DUI

conviction.

¶3              Pursuant to Rule 32, Ariz. R. Crim. P., Perrin filed a petition for post-

conviction relief, asking the trial court to vacate his substantially aggravated sentences for

manslaughter because (1) the court had not provided advance notice of its intent to consider

that range of sentence, as required by statute; (2) counsel was ineffective for failing to object

to the imposition of a substantially aggravated sentence; and (3) the court had used improper

factors and had failed to find the requisite number of enumerated aggravating factors to

substantially aggravate his sentence. The court permitted Perrin to introduce additional


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mitigation evidence and reconsidered its imposition of the substantially aggravated sentence,

but it ultimately denied relief. Perrin then filed a petition for review with this court.

¶4            In his petition, Perrin asserted he had been improperly sentenced under § 13-

702.01 to the substantially aggravated sentence for manslaughter because the trial court had

not found the presence of two enumerated aggravating factors listed in § 13-702(C) and

instead relied in part on factors it had found under the “catch-all provision” of § 13-

702(C)(21), which permits a court to consider any non-enumerated factors it “deems

appropriate to the ends of justice.” 1 Perrin acknowledged that in State v. Soto-Perez, 192

Ariz. 566, ¶ 3, 968 P.2d 1051, 1053 (App. 1998), this court had held, based on the statute’s

language, that a trial court could use the catch-all aggravator, in part, to substantially

aggravate a sentence under § 13-702.01. However, he contended Soto-Perez was wrongly

decided.

¶5            In our memorandum decision, we rejected Perrin’s invitation to reconsider our

decision in Soto-Perez, finding its statutory analysis “compelling” and noting that Perrin had

“cite[d] no evidence of the legislature’s intent other than the plain language of the statute,

. . . nor [had] he cite[d] any subsequent development in the law that might have invalidated

[Soto-Perez’s] analysis.” No. 2 CA-CR 2007-0401-PR, ¶ 6 (memorandum decision filed




       1
        Since Perrin was sentenced, the relevant sentencing statutes have been amended and
renumbered. See 2008 Ariz. Sess. Laws, ch. 301, §§ 1-120; 2006 Ariz. Sess. Laws, ch. 104,
§ 1; 2005 Ariz. Sess. Laws, ch. 20, § 1; 2004 Ariz. Sess. Laws, ch. 174, § 1. Therefore, for
ease of reference, we refer to the statutes in effect at that time.

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Sept. 5, 2008). Perrin petitioned for review to our supreme court, which granted his petition

and remanded to this court for our reconsideration in light of its recent decision in Schmidt.

                                          Discussion

¶6              In Schmidt, the supreme court considered whether a defendant’s maximum

potential sentence could be increased based solely on the catch-all aggravator in § 13-

702(C)(21). 220 Ariz. 563, ¶ 1, 208 P.3d at 215. Schmidt had pled guilty to two offenses

and received the presumptive prison term for one charge and lifetime probation for the other.

Id. ¶ 2. After serving his sentence and subsequently violating his probation conditions three

times, the trial court revoked probation and sentenced him to an aggravated term of

imprisonment pursuant to § 13-702, based solely on the catch-all provision. Id. ¶ 3. Schmidt

petitioned for post-conviction relief, and our supreme court granted review and remanded for

resentencing.

¶7              In its analysis, the court focused on principles of due process and fair notice,

which protect individuals from arbitrary government action, and it relied heavily on the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 484 (2000), and

subsequent cases, which have been generally understood to stand for the proposition that a

defendant has a constitutional right under the Sixth Amendment to have a jury find beyond

a reasonable doubt “all the facts ‘which the law makes essential to the punishment.’” Blakely

v. Washington, 542 U.S. 296, 304 (2004), quoting 1 J. Bishop, Criminal Procedure § 87, at

55 (2d ed. 1872). See generally United States v. Booker, 543 U.S. 220 (2005); Harris v.



                                                4
United States, 536 U.S. 545 (2002); see also Schmidt, 220 Ariz. 563, ¶¶ 5-7, 208 P.3d at 216-

17. According to Apprendi, legally essential facts are those “that expose a defendant to a

penalty greater than the prescribed statutory maximum 2 applicable by virtue of a guilty

verdict”; such facts are “functionally . . . element[s of the offense] for purposes of the Sixth

Amendment jury right.” State v. Martinez, 210 Ariz. 578, ¶ 10, 115 P.3d 618, 621-22 (2005).

They therefore must “be treated accordingly.” Schmidt, 220 Ariz. 563, ¶ 6, 208 P.3d at 216.

Thus the court in Schmidt concluded, “[b]ecause protection against arbitrary government

action is the quintessence of due process, the rationale of Apprendi and subsequent cases

require that [it] assess the vagueness of the catch-all aggravator.” 220 Ariz. 563, ¶ 7, 208

P.3d at 216; see also Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

¶8            After reviewing § 13-702(C)(21), the court concluded, “[t]he catch-all

provision is patently vague,” and its use “as the sole factor to increase a defendant’s statutory

maximum sentence violates due process because it gives the sentencing court virtually

unlimited post hoc discretion to determine whether the defendant’s prior conduct is the

functional equivalent of an element of the aggravated offense.” Id. ¶¶ 9-10. It thus held that,

in order for the “‘elements’ of the aggravated offense [to] have been identified with sufficient

clarity to satisfy due process,” the trial court was required to find “one or more clearly




       2
       In Arizona, “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” by statute. State v. Martinez, 210 Ariz. 578, ¶ 17, 115
P.3d 618, 623 (2005).

                                               5
enumerated aggravators . . . consistent with Apprendi.” Schmidt, 220 Ariz. 563, ¶ 11, 208

P.3d at 217.3

¶9              We find Schmidt analytically indistinguishable from this case. Although

Perrin’s statutory sentencing range was increased pursuant to § 13-702.01, which required

the trial court to find at least two aggravating factors rather than one factor as in Schmidt, the

presence of two such factors is “essential to the punishment” Perrin received. See Blakely,

542 U.S. at 304. Consequently, each of the two factors is a functional element of the

substantially aggravated offense, and in order to impose a substantially aggravated sentence

under § 13-702.01(A), the court must have found a minimum of two “clearly enumerated

aggravators.” Schmidt, 220 Ariz. 563, ¶ 11, 220 P.3d at 217. Here, the court substantially

aggravated Perrin’s sentence on the basis of one enumerated factor—the harm to the victim’s

family—and two catch-all factors. The court’s use of the catch-all to aggravate substantially

Perrin’s sentence subjected him to the same “unlimited post hoc discretion” against which

Schmidt protects. See id. ¶ 10. Therefore, Perrin’s sentence is invalid.

¶10             This holding conflicts directly with our conclusion in State v. Soto-Perez.

However, we decided Soto-Perez before the Supreme Court’s opinions in Apprendi and




       3
        The court did not invalidate the use of § 13-702(C)(21) for all purposes in Schmidt.
Although it found a catch-all could not be used to establish a particular sentencing range, the
court then suggested that once a sentencing range has been established through enumerated
aggravators, “[s]ubsequent reliance on other factors embraced by a catch-all to justify a
sentence up to the statutory maximum comports with the traditional discretionary role
afforded judges in sentencing.” Schmidt, 220 Ariz. 563, ¶ 11, 208 P.3d at 217.

                                                6
Blakely and, therefore, did not consider any issues beyond the construction and meaning of

the statutory language in reaching our conclusion. See generally Soto-Perez, 192 Ariz. 566,

968 P.2d 1051. In light of Schmidt and our application of it here, we have no choice but to

conclude Soto-Perez’s holding that the catch-all aggravator may alone be used to increase

a defendant’s statutory maximum sentence is no longer correct, and we therefore overrule

that case.

                                        Disposition

¶11           For the reasons set forth above, we grant review, vacate Perrin’s substantially

aggravated sentence for manslaughter, vacate our prior memorandum decision, and remand

the case to the trial court for resentencing in accordance with this opinion.




                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge

CONCURRING:




____________________________________
PETER J. ECKERSTROM, Presiding Judge




____________________________________
PHILIP G. ESPINOSA, Judge




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