                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                    JUAN CARLOS VICENTE SANCHEZ
                             Petitioner,

                                    v.

 THE HONORABLE TINA R. AINLEY, JUDGE OF THE SUPERIOR COURT OF THE
       STATE OF ARIZONA, IN AND FOR THE COUNTY OF YAVAPAI
                         Respondent Judge,

                          STATE OF ARIZONA,
                          Real Party in Interest.

                          No. CV-13-0280-PR
                          Filed March 20, 2014

           Appeal from the Superior Court in Yavapai County
                 The Honorable Tina R. Ainley, Judge
                          No. CR 201100945
                VACATED WITH INSTRUCTIONS

             Opinion of the Court of Appeals, Division One
                233 Ariz. 14, 308 P.3d 1165 (App. 2013)
                              VACATED

COUNSEL:

Michael A. Shaw (argued), Shaw Law Firm PLLC, Cottonwood; and
David P. Stoller, Prescott, for Juan Carlos Vicente Sanchez

Sheila Sullivan Polk, Yavapai County Attorney, Steven A. Young (argued),
Deputy County Attorney, Prescott, for State of Arizona

Amy Armstrong, Director, Natman Schaye (argued), Arizona Capital
Representation Project, Tucson, and David J. Euchner, Arizona Attorneys
for Criminal Justice, Tucson, for Amici Curiae Arizona Capital
Representation Project and Arizona Attorneys for Criminal Justice

JUSTICE TIMMER authored the opinion of the Court, in which VICE
CHIEF JUSTICE BALES, JUSTICE PELANDER, and JUSTICE BRUTINEL
joined, and CHIEF JUSTICE BERCH concurred.
                      SANCHEZ V. AINLEY (STATE)
                         OPINION OF THE COURT



JUSTICE TIMMER, opinion of the Court:

¶1            In Chronis v. Steinle, we held that “Arizona Rule of Criminal
Procedure 13.5(c) permits a defendant in a capital murder case to request a
determination of probable cause as to alleged aggravating circumstances.”
220 Ariz. 559, 560 ¶ 1, 208 P.3d 210, 211 (2009). We now hold that the trial
court must grant a defendant’s timely request for a hearing under Rule
13.5(c), even if the grand jury has previously made a probable-cause
determination as to those alleged aggravating circumstances.

                             BACKGROUND

¶2            In September 2011, a grand jury indicted Juan Carlos Vicente
Sanchez for several offenses, including first degree murder. The trial
court subsequently granted Sanchez’s motion to remand the case to the
grand jury for a new probable-cause determination. While that motion
was pending, the State filed a notice of intent to seek the death penalty
and alleged the existence of several aggravating circumstances listed in
A.R.S. § 13-751(F).

¶3           In April 2012, the grand jury re-indicted Sanchez for the
same offenses. At the State’s request, the grand jury also found probable
cause to support three aggravating circumstances.

¶4            Sanchez filed a second motion to remand for a new finding
of probable cause, arguing that the grand jury was not authorized to
consider aggravating circumstances and that the State’s presentation of
the issue usurped his ability under Rule 13.5(c) to request what is
commonly called a “Chronis hearing.” The trial court denied the motion,
reasoning that nothing precludes a grand jury from making the probable-
cause determination on alleged aggravators. The court also denied
Sanchez’s subsequent motion for a Chronis hearing as moot in light of the
grand jury’s determination.

¶5            Sanchez petitioned the court of appeals for special-action
relief from the denial of his request for a Chronis hearing. A divided panel
of the court accepted jurisdiction but denied relief, agreeing with the trial
court that a capital case defendant is not entitled to a Chronis hearing if a

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                      SANCHEZ V. AINLEY (STATE)
                         OPINION OF THE COURT


grand jury has found that probable cause supports the existence of alleged
aggravating circumstances. Sanchez v. Ainley ex rel. Cnty. of Yavapai, 233
Ariz. 14, 17 ¶ 12, 308 P.3d 1165, 1168 (App. 2013). We granted review to
resolve this recurring legal issue of statewide importance. We have
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 12-120.24.

                               DISCUSSION

                                      I.

¶6             A.R.S. § 13-752(B) and Arizona Rule of Criminal Procedure
15.1(i) direct the prosecutor to provide pretrial notice of an intent to seek
the death penalty and a list of aggravating circumstances the prosecution
will rely on. Rule 13.5(c) provides that such notice will automatically
“amend the charging document” and permits the defendant to “challenge
the legal sufficiency of an alleged aggravating circumstance” by filing a
motion pursuant to Rule 16 to request a Chronis hearing. The sole issue
before us is whether a defendant is entitled to this hearing once a grand
jury has already found that probable cause supports the alleged
aggravating circumstances. Because this issue turns on statutory and rule
interpretations, we conduct a de novo review. See State v. Gutierrez, 229
Ariz. 573, 576 ¶ 19, 278 P.3d 1276, 1279 (2012).

                                      II.

¶7            Resolution of this issue depends initially on whether a grand
jury has authority to find that probable cause supports aggravating
circumstances alleged to support imposition of the death penalty. The
court of appeals majority did not identify any such authority but noted
that nothing prohibits this course of action either. Sanchez, 233 Ariz. at 17–
18 ¶¶ 12–13, 308 P.3d at 1168–69. It then concluded that “Sanchez has a
right not to the procedure associated with a Rule 13.5(c)/Chronis hearing,
but to a substantive determination of probable cause,” which was satisfied
by the grand jury’s finding. Id. at 20 ¶¶ 19–20, 308 P.3d at 1171. The
dissenting judge reasoned that the majority erroneously expanded the
grand jury’s statutory authority, id. at 21 ¶ 29, 308 P.3d at 1172 (Norris, J.,
dissenting), and concluded, for this reason and others, that a grand jury’s



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                      SANCHEZ V. AINLEY (STATE)
                         OPINION OF THE COURT


probable-cause determination of aggravators cannot deprive a defendant
of a Chronis hearing, id. at 21 ¶ 31, 308 P.3d at 1172.

¶8             A grand jury is an investigative body “whose mission is to
bring to trial those who may be guilty and [to] clear the innocent.”
Marston’s, Inc. v. Strand, 114 Ariz. 260, 264, 560 P.2d 778, 782 (1977). To
fulfill that mission, grand jurors are authorized to inquire into “offense[s]”
and return indictments for “public offense[s].” A.R.S. §§ 21-407, -413;
Ariz. R. Crim. P. 13.1(a). The legislature has defined an “offense” or
“public offense” as “conduct for which a sentence to a term of
imprisonment or of a fine is provided by any law.” A.R.S. § 13-105(27).
“Aggravating circumstances” do not fall within this definition because
they merely guide sentencing determinations and do not proscribe
conduct that is punishable by a term of imprisonment or fine. Cf. State v.
Allen, 111 Ariz. 125, 126, 524 P.2d 502, 503 (1974) (“Statutes authorizing the
infliction of a more severe penalty on one who is a persistent offender do
not create a new, separate, distinct, independent, or substantive offense.”);
A.R.S. § 13-751(F) (providing that aggravating circumstances are
considered in “determining whether to impose a sentence of death”).

¶9            The State argues, however, that A.R.S. §§ 21-407 and -413
authorize grand jurors to find probable cause to support alleged
aggravating circumstances, thereby mooting the defendant’s Chronis
hearing request, because the United States Supreme Court has held that
aggravating circumstances are “functional equivalents” of offense
elements.     Ring     v.    Arizona,    536   U.S.   584,   609    (2002);
Apprendi v. New Jersey, 530 U.S. 466, 494 n.9 (2000). We addressed a
related argument in McKaney v. Foreman ex rel. County of Maricopa, 209
Ariz. 268, 100 P.3d 18 (2004). There, the defendant argued that, in
addition to requiring that a trial jury find any aggravating circumstances
for sentencing purposes, Apprendi/Ring requires that a grand jury or other
neutral arbiter make a pretrial probable-cause finding for any alleged
aggravating circumstances. Id. at 270 ¶ 10, 100 P.3d at 20. We disagreed,
explaining that the Apprendi/Ring holdings are confined to Sixth
Amendment jury-trial considerations and do not apply to charging
decisions. Id. at 271 ¶ 12, 100 P.3d at 21.

¶10            The State points out that McKaney holds only that the grand
jury is not required to consider aggravating circumstances, not that a grand

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                       SANCHEZ V. AINLEY (STATE)
                          OPINION OF THE COURT


jury is prohibited from doing so. McKaney also reasoned, however, that
requiring a grand jury to consider probable cause for aggravators would
expand its statutory authority to charge offenses and could unduly
prejudice a capital defendant. Id. at 272–73 ¶ 21, 100 P.3d at 22–23. That
reasoning necessarily applies in deciding whether a grand jury is permitted
to find probable cause for alleged aggravators.

¶11           Decisions in non-capital cases support our conclusion that a
grand jury is not permitted to determine whether probable cause supports
aggravating circumstances alleged in a capital case. In State v. Birdsall, 116
Ariz. 112, 113, 568 P.2d 419, 420 (1977), overruled on other grounds by State v.
Burge, 167 Ariz. 25, 804 P.2d 754 (1990), this Court held that a prior
conviction is not a “public offense” but rather something that enhances
punishment. Consequently, “[s]ince it is the duty of a grand jury to
charge only public offenses, they have no authority to add allegations to
the indictment which are concerned with punishment, and do not charge
a public offense.” Id. at 113–14, 568 P.2d at 420–21.

¶12           Although we overruled Birdsall in Burge, we nevertheless
implicitly acknowledged in Burge that grand juries are permitted to act
only as authorized by statute or rule and that punishment-related
allegations do not charge a “public offense.” 167 Ariz. at 27–28, 804 P.2d
at 756–57. Our overruling of Birdsall was based on the fact that the
predecessor to A.R.S. § 13-704(L) expressly authorized a grand jury to
allege a prior conviction, not because of a departure from the notion that
the grand jury’s authority is rooted in statute or rule. Id. at 28, 804 P.2d at
757.

¶13           That notion holds true here. Unlike the situations in Birdsall
and Burge, no statute or rule authorizes a grand jury to determine whether
probable cause supports aggravating circumstances alleged in a capital
case. Because the grand jury here lacked such authority, its finding was a
nullity and could not displace Sanchez’s rights under Rule 13.5(c).

¶14           Moreover, even if the grand jury were authorized to
determine that probable cause supports alleged aggravators, Sanchez
would be entitled to a Chronis hearing. A capital defendant’s right under
Rule 13.5(c) to challenge the legal sufficiency of an aggravator is neither
conditioned on whether a grand jury has addressed the aggravator nor

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                      SANCHEZ V. AINLEY (STATE)
                         OPINION OF THE COURT


affected by the grand jury’s findings. Under the rule, once the prosecutor
files a notice of intent to seek the death penalty and identifies aggravating
circumstances, the defendant has a procedural right to a Chronis hearing.
Cf. Ariz. Const. art. 6 § 5(5) (empowering this Court to “make rules
relative to all procedural matters in any court”); Chronis, 220 Ariz. at 562 ¶
17, 208 P.3d at 213 (recognizing that hearing to challenge probable cause is
procedural).

¶15          Finally, Rule 13.5(c) reflects this Court’s objective to afford
greater procedural rights to a defendant facing the death penalty. A
Chronis hearing permits the defendant to review written statements made
by the state’s witnesses, cross-examine those witnesses, and present
evidence to rebut the state’s alleged aggravators. See Chronis, 220 Ariz. at
562 ¶ 18, 208 P.3d at 213 (holding that Rule 13.5(c) hearing uses
procedures generally described in Rule 5); Ariz. R. Crim. P. 5.3(a)
(describing procedures for preliminary hearings).         In contrast, the
defendant generally has no right to challenge the merits of a grand jury’s
probable-cause determination. Cf. Ariz. R. Crim. P. 12.9(a) (permitting a
motion to challenge grand jury proceedings only if the defendant was
denied a substantial procedural right or an insufficient number of
qualified grand jurors agreed with the finding). The prosecution cannot
deprive a capital defendant of the option to invoke Rule 13.5(c)’s greater
procedural rights by asking a grand jury to determine whether probable
cause supports alleged aggravators.

¶16          For all these reasons, the grand jury’s finding of probable
cause to support the three aggravating circumstances alleged by the State
did not moot Sanchez’s request for a Chronis hearing.

                              CONCLUSION

¶17           The grand jury lacks authority to determine whether
probable cause supports the existence of aggravating circumstances
alleged in a capital case. Consequently, its return of a “true bill” to
support alleged aggravating circumstances does not render moot a
defendant’s request for a Chronis hearing. Regardless, because Rule
13.5(c) affords superior procedural rights to a defendant in a capital case,
any grand jury findings concerning aggravating circumstances cannot
deprive a defendant of a timely requested Chronis hearing. Accordingly,

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                      SANCHEZ V. AINLEY (STATE)
                         OPINION OF THE COURT


we vacate the trial court’s order and the court of appeals’ opinion and
direct the trial court to grant Sanchez’s request and hold a Chronis hearing.




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                     SANCHEZ V. AINLEY (STATE)
                     CHIEF JUSTICE BERCH, Concurring

CHIEF JUSTICE BERCH concurring in the result:

¶18            I agree with the result the Court reaches, but find it
unnecessary to opine on the scope of the grand jury’s authority to hear
aggravating circumstances, a holding that may have broad effect. We can
rule on the issue in this case without doing so.

¶19            I would base the opinion, as the Court does in its reasoning
in paragraphs 14 and 15, on the fact that Rule 13.5(c) provides defendants
in capital cases the right to a hearing before a judge to challenge the
sufficiency of aggravating circumstances. Sanchez requested but was
denied such a hearing. It is enough to say that, as a defendant in a capital
case, he is entitled to one.




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