                                                                       FILED BY CLERK
                                                                           JUN 22 2005
                              IN THE COURT OF APPEALS                      COURT OF APPEALS
                                  STATE OF ARIZONA                           DIVISION TWO
                                    DIVISION TWO


THE STATE OF ARIZONA,                          )
                                               )
                                 Petitioner,   )
                                               )
                     v.                        )
                                               )       2 CA-SA 2005-0011
HON. MICHAEL J. BROWN, Judge of                )       DEPARTMENT A
the Superior Court of the State of             )
Arizona, in and for the County of Santa        )       OPINION
Cruz,                                          )
                                               )
                               Respondent,     )
                                               )
                    and                        )
                                               )
JONATHAN McMULLEN,                             )
                                               )
                   Real Party in Interest.     )
                                               )


                            SPECIAL ACTION PROCEEDING

                          Santa Cruz County Cause No. CR-01-199

             JURISDICTION ACCEPTED; RELIEF GRANTED IN PART


George E. Silva, Santa Cruz County Attorney
 By Marc Offenhartz                                                              Nogales
                                                                  Attorneys for Petitioner

Robert J. Hooker, Pima County Public Defender
 By Robert J. Hooker and Frank P. Leto                                           Tucson
                                                     Attorneys for Real Party in Interest
Terry Goddard, Arizona Attorney General
 By Nicholas D. Acedo                                                             Phoenix
                                                               Attorneys for Amicus Curiae
                                                                 Arizona Attorney General


H O W A R D, Presiding Judge.


¶1            In this special action, the state contends the respondent judge abused his

discretion by finding that statements made by real party in interest Jonathan McMullen in

establishing a factual basis for his guilty plea to reckless manslaughter were not admissions

of fact for purposes of the United States Supreme Court’s decision in Blakely v.

Washington, ___U.S. ___, 124 S. Ct. 2531 (2004). In its amicus brief, the Arizona

Attorney General agrees with that contention and also argues that, by pleading guilty to

reckless manslaughter, McMullen waived his right to a jury trial on sentencing factors.1 The

state also contends the respondent judge abused his discretion by finding A.R.S. §§ 13-702

and 13-702.01 unconstitutional and by ruling he lacks authority to empanel a jury and



       1
        We agree with the attorney general that it is entitled to file an amicus brief in this
special action. See Ariz. R. Civ. App. P. 16(a), 17B A.R.S. It is purportedly appearing as
an entity that is distinct from the Santa Cruz County Attorney, the prosecuting entity in the
underlying criminal action. We have, therefore, denied McMullen’s motion to strike the
attorney general’s brief. But, in the content and tone of the brief, the attorney general has
not acted as an amicus but, rather, as a second advocate on behalf of the state. We reiterate
our admonition in State v. Resendis-Felix, 209 Ariz. 292, n.10, 100 P.3d 457, 463 n.10
(App. 2004), quoting Rule 31.25 cmt., Ariz. R. Crim. P., 17 A.R.S.: “By seeking only to
restate or expand on arguments already made by the state instead of to offer ‘background
and context for the Court’s decision,’ the attorney general’s brief does not constitute a true
amicus curiae brief.”

                                              2
conduct a jury trial on the aggravating circumstances. For the reasons stated below, we

accept jurisdiction of this special action and grant partial relief.

                                      BACKGROUND

¶2            McMullen shot and killed his mother and shot his father and brother, seriously

injuring them. Pursuant to a plea agreement, McMullen pled guilty to reckless manslaughter

in exchange for the state’s dismissal without prejudice of the remaining charges. McMullen

established the factual basis for the guilty plea at the change-of-plea hearing, describing what

had taken place the night of the shootings. The respondent judge found that the guilty plea

was knowing, voluntary, and intelligent and that it was supported by an adequate factual

basis, but deferred accepting it until sentencing. After the change-of-plea hearing, the state

alleged four aggravating circumstances: “[u]se, threatened use or possession of a deadly

weapon or dangerous instrument during the commission of the crime,” § 13-702(C)(2);

“[p]resence of an accomplice,” § 13-702(C)(4); “[t]he physical, emotional and financial

harm caused to the victim or, if the victim has died as a result of the conduct of the

defendant, the emotional and financial harm caused to the victim’s immediate family,” §

13-702(C)(9); and “[l]ying in wait for the victim or ambushing the victim during the

commission of any felony.” § 13-702(C)(17). But the respondent judge subsequently found

§§ 13-702 and 13-702.01 unconstitutional insofar as they permit judges to impose a prison

term that exceeds the presumptive sentence based on facts in aggravation found by the judge




                                               3
rather than a jury.2 The state sought special action relief, which this court granted, State v.

Brown, 205 Ariz. 325, 70 P.3d 454 (App. 2003), and McMullen sought review by our

supreme court.

¶3            While McMullen’s petition for review was pending, the United States Supreme

Court decided Blakely. Thereafter, our supreme court granted review, vacated this court’s

opinion in Brown, and found Blakely applies to Arizona’s noncapital sentencing statutes.

State v. Brown, 209 Ariz. 200, ¶ 12, 99 P.3d 15, 18 (2004). The court also concluded

McMullen may be sentenced to no greater than the presumptive, five-year prison term unless

there is a jury finding, or its equivalent, beyond a reasonable doubt “of one or more of the

aggravating circumstances in § 13-702(C).” Id. The court remanded the case to the trial

court for further proceedings consistent with its decision and Blakely.

¶4            On remand, after further briefing and a hearing, the respondent judge rejected

the state’s argument that, by entering the guilty plea and waiving generally his right to a jury

trial, McMullen had waived his right to a jury trial on any sentencing factors. The

respondent judge found there was not “a scintilla of evidence” that McMullen had

knowingly, voluntarily, and intelligently relinquished a known right. The judge also rejected

the state’s claim that McMullen was not entitled to a jury trial on the facts in aggravation



       2
        The legislature recently amended the statutes. After the amendments become
effective August 12, 2005, they will require the trier of fact, defined as the jury unless
waived, to find beyond a reasonable doubt the circumstances alleged to be in aggravation
for sentencing purposes. 2005 Ariz. Sess. Laws, ch. 20, §§ 1, 2.

                                               4
because, at the change-of-plea hearing, he had admitted the facts establishing the

circumstances the state had alleged. Furthermore, the judge found portions of §§ 13-702

and 13-702.01 facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely. The judge concluded that the

constitutionally infirm provisions cannot be severed from the rest of the statutes, and in the

absence of a legislative or supreme court directive in either statutes or rules on how to

conduct such a trial, he lacked the authority to convene a jury and hold the trial. The judge

set the case for sentencing, making it clear that the maximum prison term he will impose is

the presumptive term of five years. The judge granted the state’s subsequent request to

vacate the sentencing hearing and stay the underlying action so it could seek special action

relief.3 This is that special action.

       SPECIAL ACTION JURISDICTION AND STANDARD OF REVIEW

¶5             We accept jurisdiction of this special action for a variety of reasons. First, the

state has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R. P. Spec.

Actions 1(a), 17B A.R.S. The order challenged here is interlocutory in nature. Second,

“[s]pecial action review is an appropriate means to determine whether there is a right to a

jury trial.” Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.


       3
        The respondent judge ordered the state to file its petition for special action relief in
the supreme court. The state filed the special action in this court, however, and McMullen
moved to dismiss the petition. We denied that motion, see Rule 7(b), Ariz. R. Spec.
Actions, and the supreme court denied McMullen’s petition to transfer the special action
to that court.

                                               5
1996); see also John C. v. Sargeant, 208 Ariz. 44, ¶ 8, 90 P.3d 781, 783 (App. 2004) (“A

petition for special action is the appropriate method to challenge the denial of a jury trial.”).

¶6            Moreover, special action review is proper when the issues raised are purely

legal questions, questions of first impression, and issues of statewide importance. ChartOne,

Inc. v. Bernini, 207 Ariz. 162, ¶¶ 8-9, 83 P.3d 1103, 1106-07 (App. 2004). Here, just as

Division One of this court noted in State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 3, 98 P.3d

881, 882 (App. 2004), “[t]he issue[s] presented . . . arise[] out of a change in the law

effected in Blakely and [are] of first impression and statewide importance. Because the

issue[s are] likely to recur, and the outcome will have a widespread effect on many cases,”

it is particularly appropriate that we accept special action jurisdiction. See Aragon v.

Wilkinson, 209 Ariz. 61, ¶ 5, 97 P.3d 886, 889 (App. 2004) (accepting special action

jurisdiction based on conclusion that constitutional issues relating to Blakely are of first

impression and statewide importance).

¶7            We thus accept special action jurisdiction and address the state’s contention

that the respondent judge abused his discretion. See Ariz. R. P. Spec. Actions 3(c) (among

questions that may be raised in special action is whether respondent judge abused his or her

discretion). In reviewing the respondent judge’s rulings, we are mindful that, “when a judge

commits an ‘error of law . . . in the process of reaching [a] discretionary conclusion,’ he may

be regarded as having abused his discretion.” Twin City Fire Ins. Co. v. Burke, 204 Ariz.

251, ¶ 10, 63 P.3d 282, 285 (2003), quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434,


                                               6
456, 652 P.2d 507, 529 (1982). Our review of the legal issues raised in this special action

is de novo. See State v. Burdick, 209 Ariz. 452, ¶ 12, 104 P.3d 183, 187 (App. 2005).

           ENTRY OF GUILTY PLEA AND WAIVER OF JURY TRIAL

¶8            Based on principles it had articulated in Apprendi, the Supreme Court held

in Blakely that a judge may not sentence a defendant to a term beyond the “statutory

maximum,” or the term authorized solely by the jury’s verdict or the defendant’s guilty plea,

unless the sentence is based on “facts reflected in the jury verdict or admitted by the

defendant.” ___ U.S. at ___, 124 S. Ct. at 2537 (emphasis deleted). Our supreme court

concluded in Brown that Blakely applies to Arizona’s noncapital sentencing statute. 209

Ariz. 200, n.5, 99 P.3d at 19 n.5. The state contended below, after the supreme court had

remanded the case, that McMullen had waived his right to a jury trial on the aggravating

circumstances when he entered his guilty plea and waived generally his right to a jury trial.

The respondent judge disagreed, and the attorney general challenges that ruling in its amicus

brief. At oral argument in this special action, the state adopted the attorney general’s

position on this issue.

¶9            As the respondent judge correctly noted, the state conceded McMullen was

not waiving any right he may have to a jury trial on sentencing factors when he entered the

guilty plea to reckless manslaughter. During the change-of-plea hearing and a subsequent

status hearing, the respondent judge and counsel extensively discussed whether a right to a

jury trial on sentencing factors existed. Defense counsel made it clear that McMullen was


                                             7
not waiving that right. The prosecutor conceded at the status hearing that, although

McMullen had given “up his right to a jury trial with [respect to] the charges pending before

him,” he had not “given . . . up” his right to a jury trial on sentencing facts. Furthermore,

the respondent judge noted in his order that McMullen had only waived the right to a jury

trial on the “substantive offense . . . and not to the facts [in aggravation] set forth in [§ 13-

702(C)].”

¶10           The state did not challenge the latter finding in the first special action in this

court or on review to the supreme court, nor could it have, given its concession. Indeed, in

the state’s first special action proceeding, this court expressly found that the state was not

challenging that ruling and that the state had, in fact, “conceded below that McMullen had

not ‘given . . . up’ any right he might have to a jury trial on any alleged aggravating

circumstances.” Brown, 205 Ariz. 325, n.2, 70 P.3d 454, 456 n.2. The supreme court

implicitly confirmed that the state had not challenged this part of the respondent judge’s

ruling when it noted that the only issue the state had presented to this court had been

“whether the ‘statutory maximum’ for Apprendi purposes was the five-year presumptive

sentence (as the superior court held) or the twelve-and-one-half-year super-aggravated

sentence (as the State’s special action contended).” Brown, 209 Ariz. 200, ¶ 13, 99 P.3d

at 18. The state is judicially estopped from adopting a position in this special action

contrary to its previous position in the trial court. See State v. Towery, 186 Ariz. 168, 182,

920 P.2d 290, 304 (1996).


                                               8
¶11           At oral argument, however, when the state adopted the attorney general’s brief

and contended McMullen had waived his right to a jury trial on the sentencing factors when

he waived the right to a jury trial generally, it insisted the issue had not been conceded in

the trial court. Rather, the prosecutor explained his comment had to be viewed in the

context of his statement, made before Blakely or Brown were issued, that McMullen never

even had such a right to waive. But even assuming the state had made no binding concession

on this point, we find no merit to this waiver argument. The state correctly notes that

McMullen waived his right to a jury trial in the plea agreement and that he did so orally at

the change-of-plea hearing. But that right related only to the guilt phase on the substantive

offense. Before a defendant may be deemed to have waived a constitutional right such as

the right to a jury trial, it must be clear that the defendant knowingly, voluntarily, and

intelligently relinquished that right. Boykin v. Alabama, 395 U.S. 238, 243 n.5, 89 S. Ct.

1709, 1712 n.5, 23 L. Ed. 2d 274, 280 n.5 (1969); see also Ariz. R. Crim. P. 17.1(b), 18.1,

16A and 17 A.R.S. (setting forth criteria for pleading guilty and waiving right to jury trial);

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938)

(defendant’s waiver of constitutional rights may only be based on intentional relinquishment

of known right).

¶12           In State v. Munninger, 209 Ariz. 473, ¶ 12, 104 P.3d 204, 209 (App. 2005),

Division One of this court applied this principle to the question whether a defendant

convicted and sentenced after a jury trial had waived the right to a jury trial on the


                                              9
aggravating facts by failing to assert the right in the trial court. Division One concluded that,

like the right to a jury trial generally, waiver of the right to a jury trial on sentencing factors

must be knowing and voluntary. We agree. And we will not infer that a defendant has

waived the jury trial right established in Blakely based solely on a general waiver of the right

to a jury trial on guilt or innocence. Accord Aragon, 209 Ariz. 61, ¶ 12, 97 P.3d at 890

(finding that pleading defendant had not breached plea agreement by insisting on jury trial

on sentencing factors and that defendant had waived right to jury trial “for the guilt phase

of the proceedings,” not such right as to sentencing factors); State v. Gornick, 102 P.3d

734, 741 (Or. Ct. App. 2004) (refusing to infer from defendant’s admission to indictment

allegations and general guilty plea that defendant had waived right to jury trial pursuant to

Blakely).

¶13            The plea agreement itself was limited to McMullen’s pleading guilty to

reckless manslaughter. There was no mention in the agreement of the right to a jury trial on

sentencing factors, nor did it contain any factual admissions beyond the elements of the

offense. The colloquy between the respondent judge and McMullen at the November 2002

change-of-plea hearing as to the rights McMullen was waiving was similarly limited. The

respondent judge reviewed the plea agreement with McMullen, making certain he

understood it and the rights he was waiving by entering the guilty plea. The judge explained

to McMullen, inter alia, that he was pleading guilty to the reckless manslaughter of his

mother and that the two charges of attempted first-degree murder involving his father and


                                                10
brother would be dismissed. The judge also informed McMullen that he was “giving up

certain basic constitutional rights,” including the “right to trial by jury,” the right to remain

silent, and “the right to be presumed innocent and to be found guilty only if this case against

you is proved beyond a reasonable doubt.” It is clear the discussion only pertained to the

consequences of pleading guilty to the offense. The discussion did not relate to the right to

a jury trial on the aggravating circumstances. Thus, the respondent judge did not err by

finding McMullen’s waiver of the right to a jury trial was not a knowing, voluntary and

intelligent waiver as to his right to have a jury determine the existence of facts to support an

aggravated sentence.

      McMULLEN’S ADMISSIONS AT THE CHANGE-OF-PLEA HEARING

¶14           In establishing the factual basis for his guilty plea, McMullen described the

events that had resulted in the charges. He said that, on the day of the shooting, he and his

friend, Jeremy H., “were talking about taking [McMullen’s mother’s] car and driving to

Willcox, Arizona, but [they] were afraid that [they] were going to get caught. So

[McMullen] decided to shoot the people at the house . . . .” He took a .22 rifle from his

father’s room, choosing it as a weapon instead of a knife because it would be “a quicker

death.” He explained it was late, around midnight, and, knowing his mother would be

asleep, he and Jeremy threw something at her bedroom door to waken her. When she came

out of the room, he shot her seven times. His younger brother then came into the room, and

McMullen shot him twice. McMullen then shot his mother twice more because he “heard


                                               11
a sound from [her] that she was still alive.” McMullen’s father walked into the room, and

McMullen shot him once. After the rifle clicked because it was out of shells, the father

disarmed McMullen, and then called 911. Meanwhile, McMullen and Jeremy left the house

in a family car.

¶15             The state asserts that McMullen’s statements during this exchange may be

deemed “facts . . . admitted by the defendant” for purposes of Blakely and Apprendi.

Blakely, ___ U.S. at ___, 124 S. Ct. at 2537; Apprendi, 530 U.S. at 490, 120 S. Ct. at

2364-65, 147 L. Ed. 2d at 455. Consequently, the state maintains, because McMullen’s

admissions establish the aggravating circumstances the state alleged after the change-of-plea

hearing—use of a deadly weapon; presence of an accomplice; physical, emotional, and

financial harm to the victim or the victim’s immediate family; and lying in wait for the victim

or ambushing the victim—the court is authorized to rely on them at sentencing without a

jury finding.

¶16             In neither Apprendi nor Blakely did the Supreme Court specify what it meant

by “facts . . . admitted by the defendant” for purposes of determining the statutory maximum

prison term. Blakely, ___ U.S. at ___, 124 S. Ct. at 2537; Apprendi, 530 U.S. at 490, 120

S. Ct. at 2364-65, 147 L. Ed. 2d at 455. Nor did the Court address the level of

constitutional protection a defendant should be afforded before the defendant’s admissions




                                              12
may be regarded as admitted facts for Blakely purposes.4 But the Minnesota Court of

Appeals addressed this question in State v. Hagen, 690 N.W.2d 155 (Minn. Ct. App. 2004).

The court reasoned that, after Blakely and Apprendi, such factors essentially have become

elements of an offense and a defendant has the right to require the state to prove those

elements to a jury beyond a reasonable doubt. Id. at 159. The court stated that, because

the effect of the admission was to waive the right to a jury trial, the admission itself had to

be knowing, voluntary, and intelligent. When the defendant in Hagen entered his guilty

plea, however, he, like McMullen, was only told of his right to a jury trial in the context of

entering the plea to the offense. “[H]e was not informed that he had a right to a jury

determination on any fact used to support an upward sentencing departure.” Id.




       4
         In State v. Ring, 204 Ariz. 534, ¶ 93, 65 P.3d 915, 944 (2003) (Ring III), decided
on remand after the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (Ring II), our supreme court used similar
language with respect to aggravating circumstances in a capital case: “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.” But again, the supreme court did
not specify what it meant by such a stipulation or admission or what is required
constitutionally before either may be valid. We find it significant, however, that in cases
decided after Ring III that mention this portion of the decision, the court merely evaluated
the admission in the context of all circumstances it considered in conducting a harmless error
review resulting from a judge’s determination of the aggravating circumstances rather than
a jury. See, e.g., State v. Armstrong, 208 Ariz. 360, ¶¶ 10, 11, 93 P.3d 1076, 1079-80
(2004); State v. Montano, 206 Ariz. 296, ¶ 14, 77 P.3d 1246, 1249 (2003); State v.
Sansing, 206 Ariz. 232, ¶¶ 5, 8, 77 P.3d 30, 33-34 (2003). The court did not, in these
cases, find that the admissions or stipulations had resulted in a waiver of the right to a jury
trial established in Ring II.

                                              13
¶17           Relying in part on Hagen, the Minnesota court went a step further in State v.

Thompson, 694 N.W.2d 117 (Minn. Ct. App. 2005). Many of the defendant’s admissions

in that case had been made at the change-of-plea hearing; the defendant had admitted facts

that had been alleged in the charging document. The court concluded the defendant had not

“knowingly, voluntarily, and intelligently waived” her right to a jury trial under Blakely. Id.

at 123. It reached that conclusion even though Blakely was decided the day before she was

sentenced, and the court and the parties had specifically discussed it.

¶18           In a somewhat different context, the Oregon Court of Appeals in Gornick,

refused to infer from a defendant’s admitting the allegations of the indictment and from a

general guilty plea that the defendant had waived the right to a jury trial on sentencing

factors as articulated in Blakely, decided after the defendant had been sentenced to an

aggravated prison term. Relying on Boykin, the court stated that “[a]ppellate courts will not

presume a valid waiver of fundamental constitutional rights from a silent record.” Gornick,

102 P.3d at 740.

¶19           No Arizona decision has addressed directly the criteria for determining when

a defendant’s statements may be regarded as factual admissions for purposes of Blakely and

a waiver of the right to a jury trial. But see State v. Aleman, 210 Ariz. 232, ¶ 42, 109 P.3d

571, 584 (App. 2005) (Flórez, J., concurring in part and dissenting in part) (finding Boykin

standard must be satisfied before defendant’s admissions of fact may be used for sentencing

purposes); Aleman, ¶ 39 (Espinosa, J., specially concurring) (rejecting notion that “routine

                                              14
stipulation or admission by a defendant” used to establish element of offense or factual basis

for plea would require independent Boykin waiver before it may be used for sentencing

purposes); see also State v. Miranda-Cabrera, 209 Ariz. 220, ¶ 29, 99 P.3d 35, 41-42

(App. 2004) (finding, without further analysis, that defendant’s admissions at trial were

admissions of fact under Blakely and that defendant was not entitled to have a jury

determine such facts for sentencing purposes). In State v. Virgo, 190 Ariz. 349, 353-54, 947

P.2d 923, 927-28 (App. 1997), however, Division One of this court vacated the defendant’s

sentence for possession of over four pounds of marijuana because, even though the parties

had stipulated that the marijuana seized from his car had weighed thirty-five pounds and the

court had accepted that stipulation, the jury had not been asked to and had not specifically

found the weight of the drugs. Reducing the offense from a class four to a class six felony

and remanding the case for resentencing, the court reasoned that, “[b]ecause a jury has the

power to return a ‘not guilty’ verdict despite the facts, a judge may not rely on a stipulated

fact as conclusively proven unless a jury finds it proven—no matter how uncontroverted the

evidence.” Id. at 354, 947 P.2d at 928. The court concluded:

                      We hold a jury must actually find a defendant guilty of
              an element before a judge may use that element to increase the
              sentence or classification of offense. The right to a jury trial
              prevents a sentencing judge from increasing the classification of
              an offense based on a finding not explicitly adopted by the jury
              in its verdict.
Id.




                                             15
¶20           In Apprendi and Blakely, the Supreme Court recognized that there is no real

“distinction between ‘elements’ [of an offense] and ‘sentencing factors.’” Apprendi, 530

U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457; see also Blakely, ___ U.S. at ___ n.6,

124 S. Ct. at 2537 n.6 (acknowledging that federal constitution limits states from

reclassifying elements of offense as sentencing factors); People v. Sengpadychith, 27 P.3d

739, 745 (Cal. 2001) (finding that, under Apprendi, aggravating factors, like sentence

enhancements, are “‘functional equivalent’ of a single ‘greater’ crime”), quoting Apprendi,

530 U.S. at 494 n.19, 120 S. Ct. at 2365 n.19, 147 L. Ed. 2d at 457 n.19. The elements-of-

the-offense principles articulated in Virgo apply with equal force when, as here and in

Apprendi and Blakely, the accused is a pleading defendant. The plea process simply takes

the place of the jury finding on the elements of the offense. Thus, as the court recognized

in Virgo, the facts that may be deemed adjudicated are only those facts “explicitly adopted”

by the finding of guilt, that is, the elements of the offense and any facts implicit in those

elements. Virgo, 190 Ariz. at 354, 947 P.2d at 928; see State v. Thompson, 200 Ariz. 439,

¶ 7, 27 P.3d 796, 798 (2001) (“One is convicted when there has been a determination of

guilt by verdict, finding, or the acceptance of a plea.”).

¶21           We therefore conclude that a trial court may consider as appropriate

aggravating factors under Blakely only the elements of the offense a defendant admits at a

change-of-plea hearing or those facts that are inherent in the finding of guilt and that have

been established either by admission or stipulation after the defendant has validly waived


                                              16
the right to a jury trial.5 But facts that a defendant admits during a change-of-plea colloquy

that go beyond the elements of the offense or the facts inherent in the finding of guilt may

not be regarded as established because there has been no jury finding or its equivalent on

such facts.

¶22           McMullen waived his right to have a jury determine he had recklessly caused

the death of his mother. See A.R.S. § 13-1103(A)(1). He admitted at the change-of-plea

hearing having shot and killed his mother. The respondent judge properly could and

obviously did consider the admissions McMullen made during the change-of-plea

proceeding insofar as they were necessary to establish the elements of the offense. But

McMullen clearly admitted facts beyond those that established the elements of reckless

manslaughter. Those admissions could establish three of the four aggravating circumstances

the state later alleged. And, although he made those admissions, he did not intentionally

relinquish his right to have a jury decide the facts necessary to establish the alleged

aggravating circumstances.6 See United States v. Jones, 108 F.3d 668, 675-76 (6th Cir.



       5
        These elements must, of course, be appropriate under § 13-702 and any other
sentencing statute before they may be considered at sentencing. See, e.g., § 13-702(c)(1)
and (c)(2).
       6
         We distinguish between evidentiary admissions, see Rule 801(d)(2), Ariz. R. Evid.,
17A A.R.S., and admissions that result in a waiver of the right to a jury trial. We express
no opinion on whether McMullen’s admissions may be admissible at a jury trial on the
aggravating circumstances. Rather, we are answering the narrow question whether the same
requirement for validly waiving the right to a jury trial generally applies to admissions of fact
that effectively waive the right to a jury trial on sentencing factors.

                                               17
1997) (Ryan, J., concurring) (defendant does not waive right to jury trial on element of

offense by stipulating to factual basis for element). We will not infer such an intent from the

mere fact that the admissions were made.

¶23           Our supreme court’s decision in State v. Murdaugh, 209 Ariz. 19, 97 P.3d

844 (2004), does not require a different result. There, the defendant attempted to have his

guilty plea vacated because he had not been aware he had a right to have a jury decide

whether he should be sentenced to death. The court found the defendant had not

established that the identity of the sentencing decision maker had had any effect on his

decision to plead guilty. Id. ¶ 47. McMullen is not claiming his guilty plea is involuntary;

he simply is invoking his right to a jury trial on sentencing factors.7


       7
        Our supreme court’s decision in State v. Barnes, 167 Ariz. 186, 805 P.2d 1007
(1991), does not require a different result either. In Barnes, the defendant pled guilty to
possession of drug paraphernalia with one prior felony conviction, which was used to
enhance the sentence; she stipulated to imposition of an aggravated, enhanced, three-year
prison term. The supreme court concluded that Barnes had clearly understood at the time
she pled guilty that she was not only admitting the facts necessary for the offense, she was
admitting she had a prior felony conviction. She understood precisely what sentence she
would receive if the court accepted the guilty plea. Id. at 190, 805 P.2d 1011. We think
this may well have been the kind of admission or stipulation the Blakely majority had in
mind when it stated that a pleading defendant may relinquish Apprendi rights:

              If appropriate waivers are procured, States may continue to offer
              judicial factfinding as a matter of course to all defendants who
              plead guilty. Even a defendant who stands trial may consent to
              judicial factfinding as to sentence enhancements, which may
              well be in his interest if relevant evidence would prejudice him
              at trial.

___ U.S. at ___, 124 S. Ct. at 2541. See discussion at ¶ 25, infra.

                                              18
¶24               We acknowledge there is language in both Apprendi and Blakely that could

be interpreted to suggest admissions include statements by a defendant in a change-of-plea

proceeding or colloquy.8 See also State v. Ring, 204 Ariz. 534, ¶ 93, 65 P.3d 915, 944

(2003) (Ring III), discussion at n. 4, supra. In Blakely, for example, after the Supreme

Court defined the statutory maximum prison term for purposes of Apprendi as “the

maximum sentence a judge may 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 (emphasis

deleted), the Court added: “[N]othing prevents a defendant from waiving his Apprendi

rights.       When a defendant pleads guilty, the State is free to seek judicial sentence

enhancements so long as the defendant either stipulates to the relevant facts or consents to

judicial factfinding.” ___ U.S. at ___, 124 S. Ct. at 2541. Apprendi has similar language.



          8
        Other courts, indeed, have reached that conclusion, but most have simply skirted the
question of whether admissions during a plea colloquy or in another context must be
knowing, voluntary, and intelligent before they may be regarded as a waiver of the
defendant’s right to a jury trial on sentencing factors. See, e.g., United States v. Rubbo, 396
F.3d 1330, 1332-35 (11th Cir. 2005) (although court found defendant’s claims did not fall
outside waiver of right to appeal, it suggested statements in plea colloquy are admissions for
Blakely purposes); United States v. Thomas, 389 F.3d 424, 426 (3d Cir. 2004) (suggesting
four possible meanings of the term “facts admitted,” including statements made in plea
colloquy); United States v. Mueffelman, 327 F. Supp. 2d 79, 84 (D. Mass. 2004) (stating
that Blakely requires that facts must be found by a jury “or admitted by the defendant in a
plea agreement or plea colloquy”); United States v. Marrero, 325 F. Supp. 2d 453, 456
(S.D.N.Y. 2004) (stating that facts must be “admitted or stipulated by the defendant, as in
his plea allocution or in an agreement with the Government”); State v. Hagar, 105 P.3d 65,
67 (Wash. Ct. App. 2005) (finding stipulation to facts was “integral part” of plea agreement
but noting that “stipulation to real facts did not validly waive [the defendant’s] Sixth
Amendment rights”).

                                              19
530 U.S. at 487-88, 120 S. Ct. at 2361-62, 147 L. Ed. 2d 453-54. In neither case did the

Supreme Court directly address whether such admissions or stipulations must be

accompanied by a knowing, voluntary, and intelligent waiver. But, we think the Blakely

majority suggested as much when responding to the dissent’s claim that Apprendi could be

detrimental to pleading defendants because they would be deprived “of the opportunity to

argue sentencing factors to a judge.” ___ U.S. at ___, 124 S. Ct. at 2541. The Court stated:

              [N]othing prevents a defendant from waiving his Apprendi
              rights. When a defendant pleads guilty, the State is free to seek
              judicial sentence enhancements so long as the defendant either
              stipulates to the relevant facts or consents to judicial
              factfinding. . . . If appropriate waivers are procured, States may
              continue to offer judicial factfinding as a matter of course to all
              defendants who plead guilty. Even a defendant who stands trial
              may consent to judicial factfinding as to sentence
              enhancements, which may well be in his interest if relevant
              evidence would prejudice him at trial. We do not understand
              how Apprendi can possibly work to the detriment of those who
              are free, if they think its costs outweigh its benefits, to render it
              inapplicable.


Id. (emphasis added).9




       Our supreme court noted in Brown: “[T]he State . . . argues that no jury trial is
       9

needed because McMullen made certain statements in the plea colloquy which the State
characterizes as ‘admissions’ of aggravating circumstances.” 209 Ariz. 220, n.4, 93 P.3d at
18 n.4. But because the issue had not been presented to the trial judge or this court, the
supreme court refused to address it. Id.



                                               20
¶25            We find nothing in either Blakely or Apprendi foreclosing our conclusion that

“appropriate waivers” with respect to admissions or stipulations for the purpose of deciding

sentencing facts must be the knowing, voluntary, and intelligent waiver of the right to a jury

trial. To the contrary, when the Blakely majority suggested that defendants can consent to

judicial fact-finding after an “appropriate waiver[]” of their right to a jury trial on aggravating

factors, we can only conclude that it was referring to the pre-existing standards for the

waiver of the right to a jury trial—those set forth in Boykin and its progeny. In neither

Apprendi nor Blakely did the Court focus on the contents of the underlying plea colloquys

in analyzing whether those defendants had a right to jury trial as to any factual

determinations that would have rendered them eligible for an aggravated sentence.

Moreover, our conclusion is in accord with prior Arizona cases on the effect of stipulations

and the requirement that they be presented to the jury. See, e.g., State v. Lopez, 209 Ariz.

58, ¶ 7, 97 P.3d 883, 885 (App. 2004); State v. Newnom, 208 Ariz. 507, ¶ 5, 95 P.3d 950,

951 (App. 2004); Virgo, 190 Ariz. at 353-54, 947 P.2d at 927-28. We see no justification

for treating sentencing factors differently after Blakely.

¶26            The state and the attorney general claim that there is authority from other

jurisdictions supporting the notion that admissions, particularly those made during a plea

colloquy, may be regarded as “facts admitted by the defendant” for purposes of Blakely

without requiring that the defendant have the same level of understanding as in waiving the

right to a jury trial in pleading guilty. See, e.g., Thomas, 389 F.3d at 426 (setting forth


                                                21
possible interpretations of what is an admission for purposes of Blakely), see also note 7,

supra. Most of those decisions, however, do not address squarely the question before us

and simply treat the defendant’s statements as Blakely-exempt admissions without

thoroughly analyzing the constitutional implications of such admissions. And in at least one

case relied on by the attorney general, the defendant was deemed to have stipulated to

specific facts that were later used at sentencing because they had been set forth in the plea

agreement, which was not the case here. See Hagar, 105 P.3d at 67.

¶27           We find the reasoning of the prior Arizona cases and of the Minnesota and

Oregon courts more constitutionally sound. Because admissions of fact at a change-of-plea

proceeding beyond those necessary to establish the elements of an offense are not presented

to a jury and, in this case, were not admitted for sentencing purposes pursuant to a valid

waiver of the right to a jury trial, we hold such admissions must be pursuant to a knowing,

voluntary, and intelligent waiver of the defendant’s right to have a jury find facts that may

then constitute aggravating circumstances for sentencing purposes.

 CONSTITUTIONALITY OF §§ 13-702 AND 13-702.01 AND AUTHORITY TO
                  CONDUCT A JURY TRIAL FOR SENTENCING


¶28           In its petition for special action, the state contends the respondent erred in

concluding that he lacked the authority to convene a jury for a trial on sentencing factors.

The state also contends the portions of the statutes that are no longer constitutional in light




                                              22
of Blakely may be severed and the remaining portions may be applied in a constitutional

manner.

¶29           Both divisions of this court have rejected rulings similar to the respondent

judge’s on the unconstitutionality of Arizona’s noncapital sentencing statutes in the wake

of Blakely.10 See State v. Timmons, 209 Ariz. 403, ¶¶ 18-19, 103 P.3d 315, 320 (App.

2005); State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 6, 98 P.3d 881, 883 (App. 2004); see

also State v. Johnson, ___ Ariz. ___, ¶ 14, 111 P.3d 1038, 1042 (App. 2005) (summarily

rejecting challenge to constitutionality of Arizona’s noncapital sentencing statutes in light

of Blakely); Aragon v. Wilkinson, 209 Ariz. 61, ¶ 15, 97 P.3d 886, 891 (App. 2004)

(“Blakely does not impede the imposition of an aggravated sentence because the court can

convene a jury to find facts that may support imposition of an aggravated sentence.”). We

continue to abide by those decisions.

¶30           Finally, we agree with the state that Rule 19.1, Ariz. R. Crim. P., 17 A.R.S.,

provides additional authority to trial judges for convening a jury trial on sentencing factors.

It sets forth the procedures “[i]n all prosecutions in which a non-capital sentencing

allegation required to be found by a jury is alleged.” It further provides that, after finding

       10
        In State v. Brown, 209 Ariz. 200, ¶¶ 13-15, 99 P.3d 15, 18-19 (2004), our supreme
court refused to address any issue other than “whether the ‘statutory maximum’ for
Apprendi purposes was the five-year presumptive sentence (as the superior court held) or
the twelve-and-one-half year super-aggravated sentence (as the State’s special action
contended).” It did not, therefore, address the constitutionality of A.R.S. §§ 13-702 and 13-
702.01 in light of Blakely, which had yet to be decided when this court issued its decision
in Brown.

                                              23
a defendant guilty, “the issue of the non-capital sentencing allegation required to be found

by a jury shall then be tried.” Ariz. R. Crim. P. 19.1(b)(2). Moreover, as we previously

noted, it is possible that by the time McMullen is sentenced, the amended versions of §§ 13-

702 and 13-702.01 will be in effect. See note 2, supra.

                                      CONCLUSION

¶31           For the reasons stated above, we accept jurisdiction of this special action. We

conclude the respondent judge did not abuse his discretion in finding statements McMullen

made during the change-of-plea colloquy beyond those necessary to establish the elements

of the offense are not admissions of fact for purposes of Blakely. McMullen did not

knowingly, voluntarily, and intelligently waive his right to a jury trial on the alleged

aggravating circumstances. The judge did err, however, in ruling the state may not prove to

a jury beyond a reasonable doubt the aggravating circumstances it has alleged. The judge

has the authority to conduct such a trial, and the sentencing statutes can be applied in a

constitutional manner. Therefore, we grant the state partial relief and vacate those portions

of the ruling that are inconsistent with this decision.




                                               ____________________________________
                                               JOSEPH W. HOWARD, Presiding Judge




CONCURRING:

                                              24
____________________________________
J. WILLIAM BRAMMER, JR., Judge


____________________________________
PETER J. ECKERSTROM, Judge




                                 25
