                               IN THE COURT OF APPEALS
                                   STATE OF ARIZONA
                                     DIVISION TWO




THE STATE OF ARIZONA,                           )
                                                )
                                  Petitioner,   )
                                                )
                    v.                          )    2 CA-SA 2004-0057
                                                )    DEPARTMENT B
HON . HOW ARD F ELL, Judg e Pro                 )
Tempore of the Superior Co urt of the State     )
of Arizona, in and for the County of Pima,      )    O P I N IO N
                                                )
                                Respon dent,    )
                                                )
                    and                         )
                                                )
EDWARD JOH N SANDERS,                           )
                                                )
                     Real Party in Interest.    )
                                                )


                              SPECIAL ACTION PROCEEDING

                          Pima County Cause No. CR-20002900

                               RELIEF GRANTED IN PART


Barbara LaWall, Pima County Attorney
 By Amy Pignatella Cain and Elizabeth Hurley                                   Tucson
                                                               Attorneys for Petitioner

Higgins & Higgins, P.C.
 By Harold L. H iggins, Jr.                                                     Tucson
                                                    Attorneys for Real Party in Interest
E S P I N O S A, Judge.


¶1             A jury found real party in interest Edward John Sanders guilty of sexual assault,

sexual abuse, kidnapping, second-degree burglary, and first-degree murder. Because petitioner

State of Arizona had withdrawn its previously filed notice o f intent to seek the death penalty,

the remaining s entencing options w ere a natura l life prison term or a life term with the

possibility of parole after twenty-five years. See A.R.S. § 1 3-703(A). Before the sentencing

hearing, the respondent judge held two status conferences and entered orders that resulted in

the filing of this petition for special action. The respondent judge found that the United States

Supreme Court’s recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004), ap plied to San ders’s senten cing and c oncluded that, before h e could

impose a natural life prison term on the first-degree murder charge, the state would be required

to prove to a j ury beyond a reasonab le doubt the aggravatin g circumstan ces the state p reviously

had alleged. The judge apparently believed the sentencing factors he could consider in deciding

between the two op tions were those set forth in § 13-70 3 rather than the factors listed in

A.R.S. § 1 3-702.

¶2             The state petitioned for special action relief from those rulings. We are thus

presented with two issues in this special action. We must decide whether Blakely requires a

jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a

trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural

life prison term rather than life with the possibility of parole. We must also determine



                                                 2
whether A.R.S. § 13-703.01(Q), which requires judges to consider the aggravating

circumstances in § 13-702 in choosing between these sentencing alternatives, applies

retroactively to persons who committed offenses before the effective date of the statute. On

the latter question, we deny relief and affirm the respondent judge’s orders insofar as they

suggest § 13-703.01(Q) may not be retroactively applied. However, because we conclude that

Blakely does not apply, Sanders is not entitled to a jury trial on the aggravating circumstances.

We therefore accept jurisdiction of this special action and grant partial relief by reversing

those portions of the respon dent judge’s orders that are to the contrary.

                             PROCEDURAL BACKGROUND

¶3             On June 11, 2004, a jury found Sanders guilty of first-degree murder and other

offenses related to his Ju ly 2000 sexual assault and murder of the eighty-eight-year-old victim.

The state had initially filed a notice that it would be seeking the death penalty for the murder

charge. It also gave notice of its intent to prove the following aggravating circumstances for

sentencing purposes: Sanders had committed the offense in an especially heinous, cruel, or

depraved manner; he was an adult at the time he committed the offense; and the victim was

seventy years of age o r older. Be fore trial, however, the state withdrew the notice seeking the

death penalty, leavin g as the two remaining sentencing alternatives a n atural life term of

imprisonment or a life term with the possibility of parole after twenty-five years.          See

§ 13-703(A).

¶4             On June 24, the United States Supreme Court decided Blakely. The Court found

the State of Washington’s non-capital sentencing scheme unconstitutional based primarily on

                                               3
the Court’s earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147

L. Ed. 2d 435 (2 000). The respondent judge asked the parties to submit memoranda addressing

whether Blakely and § 13-703.01(Q), enacted well after Sanders had committed the offenses,

applied to Sanders’s sentencing process. That statute requires a sentencing judge in a non-

capital, first-degree murder case to consider the aggravating and mitigating factors in § 13-702

rather than those in § 13-703.

¶5             After two status conferences on these issues, the respondent judge concluded

in orders filed on July 20 and August 2 that Blakely applied. Thus, the respondent judge ruled

that a jury would be required to find beyond a reasonab le doubt the aggravating circumstances

the state had alleged in S eptember 2 000, and that the state w ould be limited to those factors,

before Sanders c ould be sentenced to a natural life prison term. Neither the respondent judge’s

orders nor the transcripts of the status conferences make clear whether he believed he had to

consider the aggravating circumstan ces listed in § 13-703 or the fac tors listed in § 13-702, as

directed by § 13-703.01(Q). But the state’s allegations are such that they appear to fall under

§ 13-703. And, at oral argument on this petition, the parties agreed the respondent judge

intended to consider only the factors set out in that statute.

¶6             The state contends the respondent judge abused his discretion or acted in excess

of his authority by finding Blakely applies. The state maintains the respondent judge erred by

concluding that, before he can sentence Sanders to a natural life prison term, a jury must find

the state has proved beyond a reasonable doubt the aggravating circumstances of which the

state previously had given notice. Th e state also ma intains that § 1 3-703.01 (Q) applies to

                                                4
Sanders’s sentencing and that, consequently, the respond ent judge must con sider the factors

under § 13-702 , not § 13-703.

                           SPECIAL ACTION JURISDICTION

¶7             We accept jurisdiction of this special action for several reasons. First, the state

does not have an equally plain, speedy, or adequate remed y by appeal. See Ariz. R. P. Spec.

Actions 1, 17B A.R.S . The resp ondent ju dge’s orde rs are interlocu tory in nature an d the state

contends it could not challenge them after a judgment of conviction and sentence are imposed.

See generally A.R.S. § 13-4032 (setting forth kinds of orders from which the state has a right

to appeal in criminal cases). Even assuming, without deciding, that the state could raise the

issues after sentenc ing, its remed y would not be equ ally plain, speedy, or adequate because the

state would have then proceeded in accordance with the order, presumably proving the

aggravating circumstanc es beyond a reasonab le doubt to a jury. Second, our review of the

respondent judge’s orders requires u s to consider the applicability of Blakely and to interpret

§§ 13-703 and 13-703.01(Q), questions of law that are particularly appropriate for review by

special action. See State ex rel. Romley v. Fields, 201 Ariz. 321, 35 P.3d 82 (App . 2001); see

also ChartOne, Inc. v. Bernini, 207 Ariz. 162, 83 P.3d 1103 (App. 2004) (interpretation of

state constitution and civil rule are questions of law appropriate to special action review);

Camp bell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App. 1996) (“Special

action review is an app ropriate means to determine w hether there is a right to a jury trial.”).

¶8             In addition, the questions raised are of first impression and statewide

importance. See Inzunza-Ortega v. Superior Court, 192 Ariz. 558, 968 P.2d 631 (App.

                                                5
1998). In the wake of Blakely, trial and appellate courts are wrestling with its applic ability to

a variety of statutes and circumstances. C learly, the ramifications of Blakely on Arizona’s

sentencing statutes are po tentially far-reaching. The s tate urges us to accept ju risdiction to

give guidance to trial courts faced with the decision whe ther to senten ce murder defendan ts

to a natural life prison term or life with the possibility of parole. Similarly, the question

whether § 13-703.01(Q) may be retroactively applied to defendants who committed crimes

before the statute’s effective date has yet to be determined. Both issues are particularly suited

for special action review.

                 IS § 13-703.01(Q) RETROACTIVELY APPLICABLE?

¶9             The state first contends the respondent judge erred by finding that he must

consider the aggrava ting factors listed in § 13-703 (and o nly those factors of which the state

previously gave notice) in deciding whether to sentence Sanders to a prison term of natural life

or life with the possibility of parole after twenty-five years.          The state argues that

§ 13-703.01(Q), which requires a judge to consider the aggravating factors in § 13-702,

applies to Sanders’s sentencing because it is not a change in the existing law but, rather,

clarifies what the legislature had always intended § 13-703 to mean, notwithstanding our

supreme court’s decision in State v. Viramontes, 204 Ariz. 360, 64 P.3d 188 (2003). We

disagree.

¶10            We begin our analysis with the general principle that a criminal defendant must

be punished with the penalty that existed at the time the offense was committed.




                                                6
A.R.S. § 1-246; see also O’Brien v. Escher, 204 Ariz. 459, 6 5 P.3d 107 (A pp. 2003). 1 To do

otherwise would implicate the state and federal prohibitions against enacting ex post facto

laws. See U.S. Con st. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25. When Sanders committed

the murder in July 2000, A .R.S. § 13-1105(C) stated that “[f]irst degree murder is a class 1

felony and is pun ishable by de ath or life imprisonment as provided by section 13-703.” 2000

Ariz. Sess. Laws, ch. 50, § 2. At that time, § 13-703(A) provided that a person convicted of

first-degree murder could be sentenced to death or natural life, or life with the possibility of

parole. 1999 Ariz. Sess. Laws, ch. 104, § 1. In Viramontes, decided in January 2003, our

supreme court held that, under the plain langua ge of § 13-703(A ), “the aggravators in section

13-703 are the only ones permitted in a first degree murder prosecution where the state has

not sought the death p enalty.” 204 Ariz. 360 , ¶ 15, 64 P.3d a t 190.

¶11            Vacating this court’s decision, State v. Viramontes, 200 Ariz. 452, 27 P.3d 809

(App. 2001), the supreme c ourt rejected the state’s argu ment that § 1 3-703 is imp licated only

when a sentencing judge is choosing between the death penalty or a term of life imprison ment.

The supreme court relied on what it con sidered the c lear and un ambiguous language in




       1
         We note that, when the legislature amended the capital sentencing statutes in response
to the United States Supreme Court’s decision in Ring v. Arizona, 536 U. S. 584, 1 22 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), it specified that the amendments to A.R.S. §§ 13-703 and
13-703.02 and the addition of § 13-703.01 were to apply “to any sentencing or resentencing
proceeding on any first deg ree murder case that is held after the effective date of this act,” or
August 1, 2002. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(A). There is no similar
applicability provision for § 13-703.01(Q ). In any event, we w ould be required to disreg ard
such a provision if it were to result in the unconstitutionally retroactive application of the
statute. See State v. Murray, 194 Ariz. 373, 9 82 P.2d 128 7 (1999).

                                                7
§ 13-703(A ) that the statute and all of its provisions were applicable to all first-degree murder

convictions, not just capital cases. The court further noted that § 13-702 “expressly applies

only to class 2 thro ugh class 6 felonies, w ith subsection (F) thereof stating that the statute has

no effect on first degree murder sentencings.” 204 Ariz. 360, ¶ 9, 64 P.3d at 190. In that

regard, § 13-702(F) provided, as it does now, that it has no effect on “any provision of law that

imposes the death penalty . . . [or] that expressly provides for imprisonment for life.” Fin ally,

the court held that in a non-capital case, the aggravating factors need only be supported by

reasonable evidenc e rather than be proved beyond a reasonab le doubt.

¶12            In May 2003, about five months after the supreme court decided Viramontes and

presumab ly in response to that case, the legislature amended § 13-703.01, adding subsection

(Q), wh ich states:

                      If the death penalty was not alleged or was alleged but not
               imposed, the court shall determine whether to impose a sentence
               of life or natural life. In determining whether to impose a
               sentence o f life or natural life, the court:

                      1. May consider any evidence introduced before
               sentencing or at any other sentencing proceeding.

                       2. Shall consider the aggravating and mitigating
               circumstances listed in § 13 -702 an d any statement m ade by a
               victim.

2003 Ariz. Sess. Laws, ch . 255, § 2. The effective date of the statute was September 18, 2003,

ninety days after the legislative session ended. See Ariz. Const. art. IV, pt. 1 § 1(3) (“no Act

passed by the Legislature shall be operative for ninety days after the close of the session of

the Legislature enacting suc h measure” excep t under certain circumstances).

                                                 8
¶13            The state contends § 13-703.01(Q) w as merely a clarification by the legislature

of what it had always intended § 13-703 to mean: a sentencing judge must consider the factors

in § 13-702, not those in § 13-703, in deciding whether to sentence a defendant convicted of

non-capital first-degree murder to a natural life prison term or life with the possibility of

parole. Th e state asserts that, in Viramontes, the supreme court misinterpreted § 13-703 and

that the legislature enacted the new provision to clarify its initial intent. We disagree for

several reasons.

¶14            First, the state cites no legislative history or other support for its assertion that

§ 13-703.01 was merely intended to clarify § 13-703. Nor doe s anything in th e statute itself

support this contention. Rather, on its face, §13-703.01(Q) expressly changes the first-degree

murder sentencing statutes, requiring for the first time that a trial judge consider factors listed

in § 13-702 in choosing between a natura l life prison term or life with the possibility of parole.

See generally Viramontes (finding § 13-703 and aggravating factors in that statute clearly

applicable to trial court’s decision to sentence first-degree murder de fendant to natural life

or life with the possibility of parole). Additionally, when legislators amend a statute, “‘we

must presume they intended to change existing law rather than perform a futile act.’” Rotter

v. Coconino County, 169 Ariz. 269, 274, 818 P .2d 704, 709 (1 991), quoting Lake Havasu

City v. Mo have Co unty, 138 Ariz. 552, 5 58, 675 P.2d 1371, 1377 (A pp. 1983).

¶15            Because we conclude § 13-703.01(Q) changed the law, the state’s reliance on

Vasquez v. North County Transit District, 292 F.3d 1049 (9th Cir. 20 02), is nece ssarily

misplaced. In Vasquez, the Ninth Circuit Court of Appea ls stated that “‘a statute that merely

                                                 9
clarifies, rather than c hanges existing law’ may be ‘app lied to transac tions predating its

enactment.’” Id. at 1056, quoting W. Sec. Bank v. Superior Court, 933 P.2 d 507, 51 4 (Cal.

1997). As the court noted in that case, the California legislature had made clear its intent to

clarify, not change, the existing law. Qu oting the statu te, the court stated: “The legislature

explained that the amendment pro tected the common law status quo with respect to the

independent cause exception to the firefighter’s rule [by providing]: ‘This section is not

intended to change or modify the common law independent cau se exception to the firefighter’s

rule.’” Id. at 1057. Perhaps more importantly, unlike here, there was no pre-amendment case

interpreting that statute and conflicting w ith the legislative intent later expressed in that

amendment.

¶16           The state also relies on this court’s decision in O’Brien for the proposition that

the legislature ma y enact a statute to clarify a previous statute. There, we addressed whether

amendm ents to A.R.S . § 13-901 .01 and th e supreme court’s interpretation of that statute in

State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001), applied retroactively to a defendant who

had committed h is offenses be fore the statute was ame nded and the case de cided. Bu t O’Brien

does not support the state’s proposition. The question in O’Brien was whethe r Estrada’s

interpretation of § 13-901.01 was retroactive; there was no statute enacted after Estrada was

decided that conflicted with or purported to overrule Estrada. Although the retroactivity of




                                              10
§ 13-901.0 1 was a se parate issue, the defendant was not claiming that the statute clarified

existing law. In stead, th e statute chang ed the la w entirely. 2

¶17            Assuming, however, the legislature intended § 13-703.01(Q) to be a clarification

of § 13-703 rather than a change in the law, as the state contends, it was not within the

legislature’s province to retroactive ly nullify Viramontes.           A legislative attempt to

retroactively overrule a decision by the courts of this state interpreting a statute violates the

separation of powers doc trine. State v. Murray, 194 Ariz. 373, 98 2 P.2d 1287 (199 9). It is

for the legislative branch to enact the laws and for the judicial branch to interpret them. See

Cronin v. Sheldon, 195 Ariz. 531, ¶ 30, 991 P.2d 231, 238 (1999) (finding preamble to

Employment Protection Act, which p urported to invalidate su preme cou rt’s decision in

Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985 ), “devoid

of operative effect” because “it manifest[ed] the legislature’s inte nt to usurp jud icial authority

in violation of the separation of pow ers doctrine” ); see also Ariz. Const. art. III (dividing

powers of state government into legislative, ex ecutive, an d judicial bra nches and stating that,

“except as provide d in this Constitution, such departments shall be separate and distinct, and

no one of such departments shall exercise the powers properly belonging to either of the




       2
        Division One of this court’s decision in Nation v. C olla, 173 Ariz. 245, 841 P.2d 1370
(App. 1991), upon which the state also relies, is similarly distinguishable. There, the court
found no need to determine whether the supreme court’s decision in Pritchard v. State, 163
Ariz. 427, 788 P.2d 1178 (1990), was retroactively applicable because Pritchard had held that
the time limits in A.R.S. § 1 2-821, Arizona ’s claims-notice statute, were not jurisdictional and
never had been. There was no retroactivity issue because, as in O’Brien, the decision declared
what the law ha d always been.

                                                  11
others”); Marbury v. Madison, 5 U.S. (1 Cranch ) 137, 177 , 2 L. Ed . 60, 73 (1 803) (“It is

emphatically the province and duty of the judicial department to say w hat the law is.”).

¶18            We find particularly instructive our supreme court’s decision in Murray.

Reiterating the separation of powers principles it had discussed at length in San Carlos

Apache Tribe v. Superior Court, 193 Ariz. 195, 972 P.2d 179 (1999), the court held that the

legislature could not re troactively ame nd A.R .S. §§ 13 -604 and 13-604.0 2 in order to

“overrule” the supreme court’s decision in State v. Tarango, 185 Ariz. 208, 914 P.2d 1300

(1996). In Tarango, the court had employed the rule of lenity in construing two sentencing

statutes the court regarded as conflicting o n parole elig ibility. Shortly after the court decided

Tarango, the legislature amended the statutes, stating: “It is the intent of the legislature to

overrule . . . Tarango . . . and to affirm the original intent of the legislature as enunciated in

State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App. 1989).” 1997 Ariz. Sess. Laws, ch. 34, § 3.

¶19            The supreme c ourt ackno wledged in Murray that the legislature, unlike when it

added § 13-703.01(Q), had made clear its intent th at the amendments w ere to apply

retroactively “to a prisoner sentenced before the amendments were adopted.” 194 Ariz. 373,

¶ 1, 982 P .2d at 128 7. But the c ourt refused to so apply the amendm ents, stating:

               These principles, so recently restated in San Carlos, lead to only
               one conclusion: the legislature cannot overrule and change
               Tarango’s interpretation of the statute and apply it on a
               retroactive basis. It may change the statute for pro spective
               application, but cases, including the present one, must be decided
               on the basis of the court’s interpretation of the substantive law
               that existed at the tim e the even ts in question occurred. That
               interpretation, binding under the separation of powers embodied
               in article III of our constitution, cannot be overruled. As a

                                                12
               general matter, the separation of powers doctrine leaves creation
               of future statutory law to the legislative branch and determination
               of existing law and its applic ation to past events to the judicial
               branch.

Id. ¶ 9.

¶20            Thus, assuming th e legislature intended § 13-70 3.01(Q) to clarify § 13-703 as

it existed at the time Sanders committed the offense, as the state contends, we are constrained

to follow our supreme court’s interpretation of § 13-703 in Viramontes. Once the supreme

court interpreted § 13-703, that interpretation became part of the statute.             Galloway v.

Vanderpool, 205 Ariz. 252, 69 P.3d 23 (2003). We now turn to the question whether

§ 13-703.01(Q) applies retroactively to Sanders’s sentencing.

¶21            When the legislature enacted § 13-703 .01(Q) in 2003, it did not expres sly state

that it applies retroactively. Section 1-244, A.R.S., provides that “[n]o statute is retroactive

unless expressly declared therein .” Therefo re, unless a s tatute expressly applies retroactively,

it presumptively applies prospec tively. But as we previously stated, § 1-24 6 provides that a

criminal defendant must be punished with the penalty that existed at the time the defendant

committed the offense.       See ¶ 10, supra.      Imposing a different, more on erous pen alty

implicates not only that statute but also the state and federal prohibitions against the enactment

of ex post facto laws. U.S. Const. art. I, § 10, cl. 1; Ariz. Co nst. art. II, § 25 ; see also Dobbert

v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L . Ed. 2d 344 (1 977) (ex post facto prohibitions

preclude enactment o f laws that affect substantive criminal law ); O’Brien (same). Th us, to

read A.R.S. §§ 1-244 and 1-246 together in harmony, as we m ust, see State v. Sweet, 143 Ariz.



                                                 13
266, 270-71, 693 P.2d 921, 925-26 (1985), requires that we consider a prospective

application of a statute that substan tively affects a pen alty to mean tha t the statute may o nly

apply to persons whose offenses were committed after the enactment of the statute proscribing

a new penalty. O’Brien, 204 Ariz. 459, ¶ 16, 65 P.3d at 111 (“both § 1-244 and § 1-246

compel us to conclude that the version of the statute in effect at the time petitioners

committed their offenses determines the sanctions that may be imposed”). Applying that

construction here, then, and assuming § 13-703.01(Q) is a substantive change in the sentencing

statutes as they existed at the time Sanders committed the offenses, subsection (Q) may not

apply to Sanders.3 Id. ¶ 11 (a penalty statute is being retroactively applied if it “disturbed a

vested, substantive right of petitioners by altering the legal consequences of their convictions

as those consequences existed at the time”). Ho wever, if th e change is merely procedural, then

a prospective application means § 13-703.01(Q) applies from the date of enactment forward,

that is, to proceedings such as Sanders’s sentencing which are yet to take place.4 Thus, we must


       3
         In arguing that there is no retroactiv ity issue in this case , the state again contends that
the law as it existed at the time Sanders comm itted the offense was, in fact, § 13-703.01(Q ),
rather than § 13-703 as interpreted by our supreme court in Viramontes. The state a dds that,
moreover, Viramontes had not been decided at the time Sanders committed the offense. For
the reasons previously stated, the supreme court’s interpretation of § 13-703 is the meaning
we give to that statute, no t a subsequ ently enacted statute purpo rtedly clarifying the previous
statute in a manner inconsistent with Viramontes. Thus, the law at the time of Sanders’s
offense was § 13-703 as the supreme court interpreted it in Viramontes.
       4
         We note, as we did be fore, footnote 1, supra, that when the legislature amended the
capital sentencing statutes in response to Ring II, it expressly provided that the changes would
apply to any sentencing or resentencing after the effective date of the statutes. That it did not
do so when it enacted § 13-703.01(Q ) suggests it did not inten d that the statute apply
immediately to all sentencin gs after its effectiv e date. W e also note that the state does not
dispute that § 13-703.0 1(Q) is substantive rather than p rocedural.

                                                 14
consider whether this change in the statute was substantive or procedural. Again, we find

guidance in San Carlos and Murray.

¶22            In San Carlos, the court explained that a “merely procedural [statute] may be

applied retroactively.” 193 Ariz. 195, ¶ 15, 972 P.2d at 189. But it made clear that, once a

right vests, it may not be disturbed by subsequent legislation. Id.       Murray is even more

instructive. There, the supreme c ourt ackno wledged that the legislature had intended the

statutory amendm ents on parole eligibility to apply retroactively. However, the court held that

the legislature “‘may not disturb vested substantive rights by retroactively changing the law that

applies to completed events . . . [and cannot] change the legal consequence of events completed

before [a] statute’s enactment.’” 194 Ariz. 373, ¶ 6, 982 P.2d at 1289, quoting San Carlos,

193 Ariz. 195 , ¶ 15, 972 P.2d at 18 9. Addin g that it is for the judiciary to decide whether the

legal consequences of a change in the law are substantive or procedural, the court held that

parole eligibility rights are substantive, not procedural. 194 Ariz. 373, ¶ 6, 982 P.2d at 1289;

see also San Carlos.

¶23            Sanders is correct that a change in the aggravating factors a judge must consider

is not procedural. It is a substantive chan ge that affects the penalty. T hat conclu sion is

supported by our supreme court’s decision in State v. Ring, 204 Ariz. 534, 65 P.3d 915

(2003) (Ring III). In Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556

(2002) (Ring II ), the United States Supreme Court fou nd Arizo na’s capital se ntencing sta tute

unconstitutional based on principles it had announced in Apprendi. Because former § 13-703

permitted a judge to decide whether to sentence a person convicted of first-degree murder to


                                               15
death, the Court held it violated the de fendant’s Sixth Am endment right to a jury trial. The

legislature amended the statute after Ring II was decided. 2002 Ariz. Ses s. Laws, 5th Spec.

Sess., ch. 1, § 3.

¶24             In Ring III, our supreme court held that resentencing d efendants u nder the ne wly

enacted sentencing statutes would not constitute an ex post facto violation under either the

federal or state constitution. The court reasoned that the change in only the method of

sentencing was procedural and could, therefore, as the legisla ture had ex pressly provid ed, apply

to defendants who had committed offenses before the new statutes were enacted. See 2002

Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 7(A) (providing amendments to capital sentencing

statutes applicable to sentencings o r resentencings after Aug ust 1, 2002).

¶25            The court in Ring III observed that the change in the death penalty statute in

Arizona was similar to the change in Florida’s statute enacted in response to the United States

Supreme Court’s decision in Furman v. Georgia , 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d

346 (1972). In Furman, the Supreme Court had held state death-sentencing procedures that

lacked standards v iolated the E ighth Am endment’s prohibition against cruel and unusual

punishment. Later, in Dobbert, the Court rejected the defendant’s claim that he could not

constitutiona lly be sentenc ed under a new statute enacted in response to Furman. The

Supreme Court found that “[t]he new statute simply altered the method s employed in

determining whether the death penalty was to be imposed; there was no change in the quantum

of punishment attached to the crime.” 432 U.S. at 293-94, 97 S. Ct. at 2298, 53 L. Ed. 2d at

356; see also Sc hriro v. Summerlin , ___ U.S. ___, 124 S. Ct. 2519, 159 L. Ed. 2d 442


                                                16
(2004) (finding that right to jury sentencing in Ring II context is procedural right, not

substantive); State v. Towery, 204 Ariz. 386, 6 4 P.3d 828 (20 03) (same).

¶26           Signific antly, the court in Ring III distinguished its decision in State v. Co rrell,

148 Ariz. 468, 715 P.2d 721 (1986).         In Correll, the supreme court had held that the

legislature’s addition of a n aggravating circumstance to the capital sen tencing statu te

(committing one or mo re other hom icides during the commis sion of the offense) was a

substantive change in the law that disadvantaged the defendant to whom it had been applied. The

court found that retroactive application of the new provision to a defendant who had committed

offenses before the effective date of the statute violated the ex post facto prohibitions of the

federal and state constitutions. In Ring III, the court noted that the change in the statute in

Correll had “affected the substantive nature of the crime and sentencing” by adding a new

factor that permitted the defendant to receive a more severe punishment than that available at

the time of the offense. 204 A riz. 534, ¶ 22, 65 P .3d at 928.

¶27           The enactment of § 13-703.01(Q) is analogous to the addition of an aggravating

factor to § 13-703 at issue in Correll. It is qualitatively different from the changes in the

capital sentencing statutes that the supreme court in Ring III characterize d as proce dural.

Indeed, the kinds of aggravating factors that may be considered can significantly affect the

sentence imposed, as the supreme court itself recognized in Viramontes. We conclude the

change that § 13-703 .01(Q) effected wa s substantive and that it mu st therefore ap ply

prospectively only, that is, to defendants who committed offenses after the statute’s effective

date. Accordingly, Sanders must be sentenced in accord ance with § 13-703 as it read in


                                               17
July 2000, when he committed the offenses. And, consistent with Viramontes, the respondent

judge must consider the aggravatin g factors in § 13-703, not those in § 13-702. In this case,

we limit those factors to the ones of which the state gave notice because the state has failed

to establish the respondent judge abused his discretion or lacked authority to so limit them.

See Ariz. R. P . Spec. A ctions 3(b), (c ). We no w turn to th e question w hether the Supreme

Court’s decision in Blakely requires that a jury find the aggravating circumstances beyond a

reasonab le doubt.

  DOES BLAKELY APPLY TO THE DECISION TO IMPOSE A NATURAL LIFE
      PRISON TERM OR LIFE WITH THE POSSIBILITY OF PAROLE?

¶28            In Blakely, the Supreme Court found Washington’s non-capital sentencing

statute violated the Sixth A mendme nt right to a jury trial based on the principle the Court had

announced in Apprendi, that, “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitte d to a jury,

and proved beyond a reasonable doubt.” Blakely, ___ U.S. at ___, 124 S. Ct. at 2536, ___

L. Ed. 2d at ___, quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at

455. The defendant in Blakely had pled guilty to a crime classified as a “c lass B felony,”

punishab le under one provision of the Washington sentencing statutes by a maximum of ten

years’ imprisonme nt. But a different provis ion set a sentencing range for that crime of

forty-nine to fifty-three months, permitting judges to sentence defendants beyond that range

if the judge found “‘substantial and compelling reasons justifying an exceptional sentence’” and

limiting the facts the ju dge could consider in imposing the “‘exceptional’” term to facts “‘other



                                               18
than those which are used in computing the standard range sentence for the offense.’” ___ U.S.

at ___, 124 S. Ct. at 2535, ___ L. Ed. 2d at ___. The Supreme Court held:

              [T]he ‘statutory maximum’ [of a sentenc ing statute] for Apprendi
              purposes is the maximum sentence a judge may impose solely on
              the basis of the facts reflected in the jury verdict or admitted by
              the defendant. . . . In other words, the relevant ‘statutory
              maximum’ is not the maximum sentence a judge may impose
              after finding add itional facts, bu t the maximum he may impose
              without any additional findings.

Id. at ___, 124 S. Ct. at 2537, ___ L. Ed. 2 d at ___ (emphasis de leted). The Court concluded

that, by imposing the exceptional term based on its findings, the trial court had violated the

defendan t’s Sixth Am endment right to a jury trial.

¶29           Assuming for purposes of this decision th at Blakely applies gen erally to

Arizona’s non-capital sentencing statutes, as the state essentially concedes, we hold that

Blakely does not apply to a trial court’s decision whether to sentence a defendant convicted

of first-degree murder to a term of natural life imprisonment or life with the possibility of

parole.   As discussed below, both options are indeterminate sentencing alternatives in

§ 13-703(A), variations, as it were, on a life term of imprisonment. Either alternative may be

imposed based solely on the jury’s guilty verdict, without additional findings.

¶30           Neither the statute nor case law requires a sentencing judge to enter factual

findings on the aggravating or m itigating factors in this context.       Compare § 13-703

(containing no language requiring findings of fact on circ umstances judge co nsiders in

imposing prison term of natural life or life with the possibility of parole) with § 13-702(B)

(requiring factual findings on agg ravating or m itigating factors); see State v. Harrison, 195


                                              19
Ariz. 1, 985 P.2d 486 (1999) (sentencing c ourt’s failure to substantially comply with

requirement of fact-finding s in § 13-702(B) was structural error not subject to harmless error

analysis). And, we find both unsupported and unpersuasive San ders’s suggestion that a life

term of imprisonment with the possibility of parole is the “presu mptive” priso n term in this

context or the “statutory maximum” for purposes of Blakely and that a n atural life term is

tantamount to an aggravated, upward adjustment from that presumptive term.

¶31           As previously noted, at the time S anders committed the offense, § 13-1105(C)

provided that “[f]irst degree murder is a class 1 felony and is punishable by death or life

imprisonment as provided by section 13-703.” 2000 Ariz. Sess. Laws, ch. 50, § 2. The

legislature added the natural life alternative to § 13 -703 in 1993. 1993 Ariz. Sess. Laws, ch.

153, § 1. At the time Sanders committed the offense, § 13-703(A) provided:

                      A person gu ilty of first degree murder as defined in
              section 13-1105 shall suffer de ath or imprisonment in the
              custody of the state de partment of corrections for life as
              determined and in accordance with the procedures provided in
              subsections B through G of this section. If the court imposes a
              life sentence, th e court may o rder that the d efendant n ot be
              released on any basis for the remainder of the defendant’s natural
              life. An order sentencing the defendant to natural life is not
              subject to commutation or parole, work furlough or work release.
              If the court does not sentence the defendant to natural life, the
              defendant shall not be released on any basis until the completion
              of the service of twenty-five calendar years if the victim was
              fifteen or more years of age and thirty-five years if the victim was
              under fifteen years of age.

1999 Ariz. Sess. Laws, ch. 104, § 1.




                                              20
¶32            In 2002, in response to Ring II, the legislature amended §§ 13-703 and

13-703.02 and added § 13-703.01, without subsection (Q). 2002 Ariz. Sess. Laws 5th Spec.

Sess., ch. 1, § 7. But those provisions, which the legislature expressly made applicable to all

sentencings and resentencings conducted after August 1, 2002, the effective date of the statute,

relate to the death penalty, not the life imprisonment term. 2002 Ariz. Sess. Laws 5th Spec.

Sess., ch. 1, §§ 3, 7 (A).

¶33            In interpreting a statute, we must attempt to give effect to the legislature’s intent,

looking first to its most reliable index, the text of the statute. Zamora v. Reinstein, 185 Ariz.

272, 915 P.2d 1227 (1 996); see also Abbott v. City of Tempe, 129 Ariz. 273, 630 P.2d 569

(App. 1981) (cardinal rule in statutory interpretation is to ascertain and give effect to

legislature’s intent). “‘[W]hen the language [of a statute] is c lear and un equivoca l, it is

determinative of the statute’s construction.’” Viramontes, 204 Ariz. 360, ¶ 8, 64 P.3d at 189,

quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222 , 1223 (19 91); see also

Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 872 P.2d 668 (1994) (when text of statute is clear

and unambiguous, courts need not employ o ther method s of statutory interp retation to

determine legislative intent because tha t intent can be determined from face of statute).

¶34            As discussed earlier, in Viramontes, our supreme court found § 13-703(A)

clearly and unambiguously required trial judges to consider the aggravating factors listed in

§ 13-703 rather than those in § 13-70 2 in choosing betw een a prison term of natural life or life

with the possibility of parole. We conclude the statute is equally clear that the legislature

intended to provide one sentencing option for persons convicted of first-degree murder other


                                                21
than death: a life term of imprisonment. The legislature gave trial judges the discretion to

choose alternative conditions for that life term—natural life or life with the possibility of

parole in twenty-five or thirty-five years—but neither alternative may be characterized as the

presumptive term, and both may be imposed “ solely on the b asis of the facts reflected in the

jury verdict or admitted by the defendant . . . without any additional findings.” Blakely, ___

U.S. at ___, 12 4 S. Ct. at 2537, _ __ L. Ed. 2d at ___ (emphasis deleted ).

¶35            The notion of a “ presumptive” prison term derives from language in A.R.S.

§§ 13-701 through 13-702.02; it is considered the sentence that should apply in most cases.

See State v. Thurlow, 148 Ariz. 16, 19 -20, 712 P.2d 9 29, 932-33 (19 86) (presumptive term

applies to the “vas t majority of first offe nders”). It is also the starting point from which the

length of prison terms may depart, depending on aggravating and mitigating circumstances

listed in §§ 13-702 and 13-702.01. For purposes of Blakely, the presumptive term is “the

‘statutory maximum ’ . . . sentence a judge m ay impose so lely on the bas is of the facts reflected

in the jury verdict or admitted by the defendant . . . without any additional findings.” ___ U.S.

at ___, 124 S. Ct. at 2537, ___ L. Ed. 2d at ___ (emphasis deleted). But nothing in the

sentencing provisions for first-degree murder, particularly at the time Sanders committed the

offense, expressly states or even sugge sts that the legislature regarded either a life prison term

with the possibility of parole or a natural life term to be appropriate for the “vast majority of

first offend[ing]” defendants convicted of first-degree murder and not sentenced to death.

Thurlow, 148 Ariz. at 19-20, 712 P.2d at 932-33.




                                                22
¶36           In State v. Ovind, 186 Ariz. 475, 478, 924 P.2d 479, 482 (App. 1996), Division

One of this court acknowledged that, “ [u]nlike the sentences f or other crimes, the statute

relating to first degree murder does no t describe any sentence as the ‘p resumptive’ one.”

Nevertheless, the court found that a prison term of life with the possibility of parole is

tantamount to the presumptive prison term under § 13-703. But the court was constraine d to

find one of the two prison options to be the presumptive term because the defendant had been

found guilty but insane pursuant to A.R.S. § 13-502; consequently, the trial court had been

required to commit the defendan t to a secure mental health facility for the “presumptive” term

for the offense pursuant to A.R.S . § 13-399 4. Division One concluded, in that context, that

§ 13-703 was “ambiguous, probably the result of an oversight in drafting.” Ovind, 186 Ariz.

at 478, 924 P.2d at 48 2. But, the court adde d, this did not require that the commitment order

be vacated. As the court stated, “[i]nstead, we apply the rule of lenity and impose the least

onerous commitment to which the statute exposes the Defendant.” Id.

¶37           In contrast, here we have no reason to apply the rule of lenity because our

supreme court stated in Viramontes that § 13-703 is clear and no conflicting statute creates

an ambiguity. See State v. Fell, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App. 2002) (“Th[e]

rule of [lenity] applies when a statute is ambiguous and dictates that any doubt about statutory

construction be resolved in favor of a defendant.”). Moreover, Ovind was decided w ell before

Apprendi, Blakely, and Viramontes. Therefore, the court in that case was not a sked to decide

whether a prison term of natural life or life with the po ssibility of parole was the maximum

sentence authorized by the jury’s verdict. Finally, we note that the court in Ovind found tha t,


                                              23
“under the sentenc ing statute for firs t degree mu rder, the sen tence that the court will

presumably apply unless it finds a reason to do otherwise is twenty-five years without

commutation or parole.” 186 Ariz. at 478, 924 P.2d at 482. The court cited no authority for

that proposition, howe ver, nor are we aw are of any. It is not a fact of which this court may take

judicial notice. See Ariz. R. Evid. 201, 17A A.R.S. We therefore find Ovind distinguisha ble

and do n ot follow it.

¶38            Our conclusion is supported not only by the clear language o f the first-degree

murder sentencing statutes, a comparison of the sentencing statutes pertaining to offenses

other than first-degree murder, and our reading o f Blakely, but also by our supreme c ourt’s

decision in State v. Wagner, 194 Ariz. 310, 982 P.2d 270 (1999). There, the court rejected

the defendant’s claim that § 13-703(A) was unconstitutionally vague and violated his due

process and equal protection rights because it did not contain guidelines for sentencing judges

choosing between a natural life prison term or life with the possibility of parole. The supreme

court agreed with Division One of this court that the statute did not violate these constitutional

provisions. Id.

¶39            The supreme court’s acknowledgment in Wagner that the statute provided no

specific guidelines recognized, at least implicitly, that no findings were required. The court

reasoned that, “[b]ecause appellant has no constitutional right to sentencing guidelines in a

non-capital proceeding, the lack of guidelines for imposing a sentence of life or natural life

does not violate appellant’s right to due process or equal protection under the law.” Id. Like

Division One, the supreme court relied, in part, on the United States Supreme Court’s decision


                                                24
in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). There,

the Court had rejected the claim that the Constitution required states “to create a sentencing

scheme whereby life in prison w ithout possibility of parole is simply the most severe of a

range of available penalties that the sentencer may impose after hearing evidence in mitigation

and aggravation.” Id. at 994, 11 1 S. Ct. at 2 701, 115 L. Ed. 2 d at 864. O ur supreme court in

Wagner also relied on United States v. LaFleur, 971 F.2d 200 (9th Cir. 1991), in which the

Ninth Circuit Court of Appeals held that the Constitution does not require a sentencing c ourt

to conduct an individu al assessment in determining w hether a life prison term is appropriate.




¶40           We find further support for the conclusion that either a natural life term or a life

term with the possibility of parole is authorized b y the jury verdict in those portions of our

supreme court’s decision in State v. Ring, 200 Ariz. 267, 2 5 P.3d 1139 (2001) (Ring I), that

the United States Supreme Court cited with approval in Ring II. In Ring I, our supreme cou rt

characterized the first-degree murder sen tencing statu te as it read at all time s relevant to

Sanders’s case as follow s:

              In Arizona, a defendant canno t be put to de ath solely on th e basis
              of a jury’s verdict, regardless of the jury’s factual findings. The
              range of punishment allowed by law on the basis of the verdict
              alone is life imprisonm ent with the possibility of parole or
              imprisonment for ‘natural life’ without the possibility of release.

200 Ariz. 267, ¶ 42, 25 P.3d at 1151. And the Supreme Court similarly characterized

Arizona’s capital sentencing statute as follows: “Based solely on the jury’s verdict finding

Ring guilty of first-degre e felony murd er, the maximum punishment he could have received


                                               25
was life imprisonment.” 536 U.S. at 597, 122 S. Ct. at 2437, 153 L. Ed. 2d at 569. Neither

the United States Supreme Court nor the A rizona Supreme C ourt distinguished a natural life

term from a term of life with the possibility of parole; both courts regarded the prison term

authorized by the jury verd ict alone as a life term of impriso nment. Both forms of a life term,

then, are authoriz ed by the verdict. To sen tence a defendant to d eath under former § 13-703,

of course, required a sentencing judge to find aggrav ating circum stances beyo nd a reaso nable

doubt.

¶41            Nothing in Viramontes requires trial judges to make factual findings before

choosing between a natural life term of imprisonm ent or life with the possibility of parole.

Moreover, such a requirement would be inconsistent with Wagner. Athough the Viramontes

court noted in dictum that it was not required to follow the court of appeals’ decisions in State

v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998), and State v. Spr oule, 188 Ariz. 439, 937

P.2d 361 (App. 1 996), it did not overrule them. Rather, it distinguished those cases. Thus,

they remain good law. And as the court stated in Guytan, relying on Sproule, 188 Ariz. at 440,

937 P.2d at 36 2, “the trial co urt ha[s] no obligation to articulate the fac tors it consider[s] in

choosing to impose a natural-life sentence.” 192 Ariz. 514, ¶ 42, 968 P.2d at 597.5


         5
         At oral argument, Sanders contended § 13-703 implicitly requires a court to make
factual findings. And, he claimed that principles of due process require that such findings be
made because, without them, there is no way to meaningfully review for an abuse of discretion
a trial court’s decision to impose a natural life term rather than life with the possibility of
parole. These arguments are not without merit. But the legislature did not require express
findings. Indeed, it did not require them when it enacted § 13-703.01(Q). Had it wanted to,
it could have done so, as it did in § 13-702(B), which applies to crimes other than first-degree
murder and provides that an aggravated prison term may not be imposed unless “the
circumstances alleged to be in aggravation . . . are found to be true by the trial judge . . . and

                                                26
                                       CONCLUSION

¶42           We conclude that a trial judge need not make any additional findings in deciding

whether to impose a natural life priso n term or life w ith the possib ility of parole. Thus,

Blakely does not apply, and Sanders is not entitled to a jury trial on the aggravating factors.

But, even if the statute could be construed, implicitly or otherwise, as requiring a judg e to

make express factual findings an d assuming , too, that, in light of Viramontes, we must question

the continued viability of Sproule and Guytan, we would nevertheless reach the same

conclusion.

¶43           Once the jury found Sand ers guilty of first-degree murder, the respondent judge

may impose any term within the range authorized by the verdict. As we have said, that is a life

term of imprisonment, which the respondent judge, in the exercise of his discretion, may order

Sanders to serve in its entirety or with the possibility of parole after twenty-five years. The

respondent judge may base that decision “on various facts relating to the defendant and the

manner in which the offense was committed.” Harris v. United States, 536 U.S. 545, 549,



factual findings and reasons in support of such findings are set forth on the record at the time
of sentencing.” See State v. Harrison, 195 Ariz. 1, 985 P.2d 486 (199 9). As troubling as the
absence of such a requirement might be, Sanders has not persuaded us that his due process
rights will be violated if the respondent judge imposes a natural life term without making such
findings, and indeed, the case law is to the contrary. See Wagner; Guytan ; Sproule. It is for
the legislature, not the judiciary, to imp ose such a requiremen t, and we may not eng raft onto
the statute provisions that do not exist. Cf. Tornabene v. Bo nine ex rel. Ariz. Highwa y Dep’t,
203 Ariz. 326, ¶ 20, 54 P.3d 355, 363 (App. 2002) (courts may “judicially engraft” a
requirement into a statute “only if the C onstitution compels” it).




                                               27
122 S. Ct. 2406, 2410, 153 L. Ed. 2d 524, 533 (2002) (plurality opinion finding Apprendi is

not implicated if court-found sentencing factor raises mandatory minimum pena lty). The

Court in Harris stated, “Though these facts may have a substantial impact on the sentence, they

are not elements [of the offense ] and are thus not subject to the C onstitutio n’s indic tment, jury,

and proof requirements.” Id. “Judicial factfinding in the course of selecting a se ntence w ithin

the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt

compon ents of the Fifth and Sixth Amendments.” Id. at 558, 122 S. Ct. at 2415, 153 L. Ed. 2d

at 538. Because there is no presumptive or aggravated prison term for first-degree murder,

Blakely is not implicated. This would be true even if the statute required, implicitly or

otherwise , trial courts to make expre ss findings o f fact.

                                         DISPOSITION

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

Because we find that the respondent judge “has proceeded or is threatening to proceed without

or in excess of [his] jurisdiction or legal authority,” Rule 3(b), Ariz. R. P. Spec. Actions, by

compelling the state to prove and a jury to find beyond a reasonable doubt the aggravating

factors alleged in the state’s notice, we vacate those portions of the court’s July 20 and August

2 orders. The respondent judge is directed to conduct sentencing proceedin gs consisten t with

this opinion and our supreme court’s decision in Viramontes. We find, however, that the

respondent judge did not err or abuse his discretion in finding, at least implicitly, that

§ 13-703.01 is not retroactively applicable to Sanders’s sentencing proceeding. Nor can we

say the respondent judge abused his discretion in limiting the aggravating factors to those of


                                                 28
which the state has given notice. We therefore deny the state’s request for relief on those

grounds.




                                             PHILIP G. ESPINOSA, Judge

CONCURRING:




JOHN PELA NDER, Chief Judge




M. JAN FLÓRE Z, Presiding Judge




                                            29
