STATE of Arizona, Appellee, v. George Melendez ESTRADA, Appellant, 210 Ariz. 111

OPINION HALL, J. ¶ 1 The issue presented on appeal is whether the Sixth Amendment’s jury-trial guarantee as interpreted by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), entitles a defendant whose prior convictions constitute an aggravating circumstance to jury findings on the existence of any additional aggravating factors. We conclude that, under Arizona’s noncapital sentencing scheme, a defendant is not constitutionally entitled to jury findings in such a ease.

FACTUAL BACKGROUND ¶ 2 On April 22, 2003, the victim was home alone when she heard a knock at her front door. She did not recognize the man at the door and did not open it. The man, later identified as Estrada, sat in a chair on the front porch and began reading a newspaper. Periodically, he would get up and knock on the door, look into the window, and shake the door knob. The victim surreptitiously watched Estrada from inside the house but did not reveal her presence. ¶ 3 After repeating this pattern for approximately half an hour, Estrada went to the side of the house.

Becoming increasingly alarmed, the victim called the police. Estrada tried unsuccessfully to open the door of her truck and then climbed atop some wooden pallets near her fence and whistled. Bolt cutters were handed over the fence. Estrada used the bolt cutters to cut the lock on the back gate and another lock on the gate leading to the back alley where a white truck was parked. Estrada’s accomplice entered the backyard through the alley gate.

Estrada then used the bolt cutters to cut the lock securing the victim’s lawn mower to a wooden post and took the lawn mower. ¶ 4 Estrada came to the victim’s back door and unsuccessfully attempted to open the sliding door lock. The victim became increasingly frightened and worried that the police would not respond in time, and hung up the telephone and called her neighbor.

The neighbor came over immediately and confronted the two men who fled to the white truck in the alley. ¶ 5 By this time, two Phoenix Police Officers had responded to the scene and had just come upon the entrance to the alley when the truck appeared. The officers ordered the men out of the truck and put them under arrest. At trial, both officers identified Estrada as one of the occupants of the truck. ¶ 6 The officers found a padlock with its clasp cut on the front seat of the truck and the lawn mower in the bed of the truck.

One of the officer’s found bolt cutters in the victim’s backyard, a broken chain that had secured the front gate, a broken lock on the ground near the back gate, and a cut cable that had been used to tether the lawn mower to the post. ¶ 7 Later that morning, the victim identified Estrada and his accomplice as the men she had seen at her house. She was able to make the identification based upon the clothing both men were wearing. ¶ 8 Both men were charged with one count of burglary in the third degree, a class 4 felony, and one count of possession of burglary tools, a class 6 felony, and tried separately.

The jury convicted Estrada on both counts and the court sentenced him to aggravated prison terms of 11 years and 4 years, respectively, to be served concurrently. Estrada timely appealed. DISCUSSION I. ¶ 9 Estrada claims that the aggravated sentences imposed by the trial court violate Blakely. Because he had multiple historical prior felony convictions and committed the present offenses while on probation, see Ariz. Rev.Stat. (A.R.S.) §§ 13-604(

C) and - 604.02(B) (2001), Estrada faced the following sentencing ranges: (1) a minimum flat-time sentence of 10 up to a maximum of 12 years for burglary in the third degree; and (2) a minimum flat-time sentence of 3.75 up to a maximum of 4.5 years for possession of burglary tools. Before imposing Estrada’s sentence, the trial court found four aggravating circumstances: (1) emotional trauma to the victim as a result of the incident, (2) the presence of an accomplice, (3) that the offenses were committed for pecuniary gain, and

(4) Estrada’s extensive history of felony convictions, and one mitigating circumstance: Estrada’s history of substance abuse. The court then found that the aggravating circumstances outweighed the mitigating circumstance and imposed slightly aggravated sentences of 11 and 4 years, respectively. ¶ 10 Estrada contends that the judicial determination of aggravating circumstances denied him the jury-trial guarantee of the Sixth Amendment that “every defendant [has] the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” Blakely, 542 U.S. at —, 124 S.Ct. at 2543.

In Blakely, the Supreme Court held that a Washington State statute that authorized a trial judge to impose a sentence above the “standard range” based on facts found by the court at sentencing by a preponderance of evidence violated Blakely’s federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence: “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.” Id. at —, 124 S.Ct. at 2537 (citations omitted). ¶ 11 However, one of the aggravating factors found by the trial court — Estrada’s history of prior felony convictions — is exempt from the Blakely rule: This case requires us to apply the rule we expressed in Apprendi v.

New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at —, 124 S.Ct. at 2536 (emphasis added). See United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir.2004) (citing widespread agreement among federal circuit courts that Blakely preserves the exception for the fact of a prior conviction); State v. Cons, 208 Ariz. 409, 413, ¶ 10 n. 3, 94 P.3d 609, 613 n. 3 (App.2004).

Furthermore, because several of Estrada’s convictions occurred within ten years preceding the date of the current offenses, the court was required to consider them as aggravating factors. See A.R.S. § 13-702(C)(11) (2001) (requiring that the court consider as an aggravating circumstance that a “defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense”). Hence, no additional facts were necessary to support the aggravated sentences imposed in this case. See State v. Brown (McMullen), 209 Ariz. 200, 202, ¶ 11, 99 P.3d 15, 17 (2004) (“Section 13-702(

A) allows an increase of [the] presumptive sentence to [the] maximum ... upon a finding of one or more of the aggravating circumstances set forth in § 13-702(C).”). Indeed, a defendant must be sentenced to an aggravated term if the trial court finds one or more aggravating circumstances and no mitigating circumstance(s). A.R.S. § 13-702(D)(5). ¶ 12 Thus, it is clear that had the trial court restricted its finding of aggravating circumstances to Estrada’s prior convictions, Estrada could only ask us to review his sentences for an abuse of discretion by the trial court. See State v.

Long, 207 Ariz. 140, 147, ¶ 37, 83 P.3d 618, 625 (App.2004) (“If sufficient and appropriate aggravating circumstances exist to justify imposition of an aggravated sentence, we will find no abuse of discretion in the trial court’s decision to impose such a sentence.”).

The question therefore presented is whether Blakely nonetheless required that the additional aggravating factors be submitted to a jury and proved beyond a reasonable doubt because they were facts that “increase[d] the penalty for a crime beyond the prescribed statutory maximum.” Estrada did not raise this claim in the trial court; therefore, we review for fundamental error. See State v. Henderson, 209 Ariz. 300, 302, ¶ 1, 100 P.3d 911, 913 (App.2004) (reviewing claimed Blakely violation for fundamental error); State v.

Martinez, 209 Ariz. 280, 282, ¶ 1, 100 P.3d 30, 32 (App.2004) (same) (petition for review granted on February 8, 2005). ¶ 13 Blakely describes the term “prescribed statutory maximum” as: the maximum sentence a judge may impose solely on 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 additional facts, but the maximum he may impose without any additional findings. 542 U.S. at —, 124 S.Ct. at 2537.

Under Arizona’s statutory scheme, Estrada’s criminal history constituted an aggravating circumstance that — without the need for any additional jury findings — exposed him to being sentenced to 12 and 4.5 years, respectively, based solely on the facts reflected in the jury verdicts. Because the sentences imposed by the trial court did not exceed these máximums, the three additional aggravating circumstances found by the trial court were not facts legally essential to the punishment; thus, Estrada had no legal right to have a jury determine their existence.

See id. at —, 124 S.Ct. at 2543 (“[E]very defendant has the right to insist that the prosecutor prove to the jury all facts legally essential to the punishment.”). ¶ 14 Instead, given the existence of Estrada’s Blakely-exempt prior convictions, § Í3-702 authorized the trial court to find and weigh these additional aggravating factors (against the mitigating circumstance) in making its discretionary decision whether to impose an aggravated sentence, and if so, to choose an appropriate sentence within the applicable sentencing range.

Hence, as is the case with an indeterminate sentencing scheme, the trial court was statutorily authorized to determine facts that helped it choose a sentence within the range of options available without impheating the jury-trial guarantee because a judge “may implicitly rule on those facts he deems important to the exercise of his sentencing discretion” that do not infringe on “the jury’s traditional function of finding the facts essential to lawful imposition of the penalty.” Id. at —, 124 S.Ct. at 2540; see also id. (judicial fact-finding permissible when such facts “do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned”).

Therefore, we conclude that the trial court’s imposition of aggravated sentences did not violate Blakely. ¶ 15 Our conclusion is supported by Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the United States Supreme Court considered the related question whether a federal statute that treated the “brandishing” of a firearm during the commission of a crime as a sentencing factor requiring an increase in the minimum sentence was actually a separate crime that must be submitted to a jury and proved beyond a reasonable doubt.

Rejecting Harris’ argument that brandishing a firearm was a separate crime, the Court instead analogized the firearms statute to criminal statutes “providing judges discretion within a permissible range,” id. at 558, 122 S.Ct. 2406 (quoting Apprendi, 530 U.S. at 481, 120 S.Ct. 2348), which it noted have long been recognized as constitutional. Id.

In doing so, the Court made clear that “[¡judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.” Id. at 558, 122 S.Ct. 2406. ¶ 16 In language later echoed in Blakely, the Court further explained that the “elements” to which the constitutional protections attach consist of “facts legally essential to the punishment to be inflicted.” Id. at 561, 122 S.Ct. 2406 (citations omitted).

Because the minimum could have been imposed “with or without the factual finding; the finding [was] not ‘essential’ to the defendant’s punishment.” Id. Likewise, Estrada’s constitutional rights were not violated because the trial court had discretion to impose aggravated sentences “with or without” the additional factual findings. See also Ring v.

Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (“Capital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”) (emphasis added). ¶ 17 In Martinez, another panel of this court recently reached a similar conclusion when it held that the trial court was not prohibited by Blakely from relying on additional aggravating factors in determining the appropriate sentence when at least one aggravating factor (the death of the victim) was implicit in the jury’s verdicts: Because the jury found at least one aggravating factor, defendant was eligible to receive an aggravated sentence, and the trial court’s weighing of additional aggravating and mitigating circumstances to determine the appropriate sentence within the aggravated range was permissible.

Put another way, the jury having found the existence of one aggravating factor, its verdict expanded the sentencing range and the scope of the trial court’s sentencing discretion. When one aggravating factor is authorized by the jury, Blakely is satisfied. 209 Ariz. at 284, ¶ 16, 100 P.3d at 34. ¶ 18 As did the panel in Martinez, we reject the argument that State v. Ring, 204 Ariz. 534, 561-62, ¶ 88, 65 P.3d 915, 942-43 (2003) (Ring III), requires that all aggravating factors in noncapital eases be found by a jury. It is true that in Ring III, our supreme court declined to adopt a “narrow” reading of Ring v.

Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II) that would have permitted a judge in capital cases to find the existence of additional aggravating factors so long as there was at least one aggravating factor either implicitly found by the jury or not subject to the Ring II analysis: “[W]e conclude that Ring II requires a jury to consider all aggravating factors urged by the state and not either exempt from Ring II, implicit in the jury’s verdict, or otherwise established beyond a reasonable doubt.” 204 Ariz. at 562, ¶ 88, 65 P.3d at 943. ¶ 19 The court went on to explain that our legislature has always assigned to one fact-finder the important tasks of determining and weighing the facts in capital cases: In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency.

Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. Id. at 562, ¶ 89, 65 P.3d at 943. These concerns, however, are presently inapplicable to Arizona’s noncapital sentencing scheme, which, interpreted in light of Blakely, assigns complementary roles to both jury and judge in the sentencing process: There is nothing in the plain language of A.R.S. § 13-702(

B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(

B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, and A.R.S. § 13-702(

B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated in A.R.S. § 13-702. State v. Superior Court (Tinnell), 209 Ariz. 195, 197, ¶ 7, 98 P.3d 881, 883 (App.2004). See also Apprendi, 530 U.S. at 490-91 n. 16, 120 S.Ct. 2348 (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation” and that judicial fact-finding of mitigating circumstances does not “expose[ ] the defendant to a deprivation of liberty greater than that authorized by the verdict”); Strong v.

State, 817 N.E.2d 256, 262 (Ind.App.2004) (“[W]e do not discern from the Blakely decision that the trial court’s sentencing authority of balancing and weighing mitigating and aggravating circumstances has been usurped.”). Accordingly, Ring III’s requirement that additional aggravating factors must be found by a jury is inapplicable in the context of noncapital sentencing. But see State v. Alire, 209 Ariz. 517, 105 P.3d 163 (App.2005); State v. Munninger, 209 Ariz. 473, 104 P.3d 204 (App.2005); State v.

Tim-mons, 209 Ariz. 403, 103 P.3d 315 (App.2005) (all rejecting the Martinez holding that a trial court’s reliance on one Blakely-compli-ant aggravating factor permits the court to consider additional aggravating factors, not found by a jury, and weigh them against mitigating circumstances in imposing an aggravated sentence). II. ¶20 The dissent warrants a response.

Our colleague concurs with the panel in Munninger in rejecting the principle that we, and the Martinez panel, find controlling: The existence of a single BZa/ceZy-eompliant or (as here) Blakely-exempt aggravating factor raises the sentencing ceiling to the legislatively prescribed maximum, thereby permitting (indeed, requiring pursuant to § 13-702) judicial fact-finding in noncapital eases without violating Blakely.

Instead, our dissenting colleague interprets Apprendi and Blakely as requiring that “all factors used to aggravate a sentence beyond that inherent in the jury’s verdict, other than prior convictions or facts admitted by the defendant, must be found by the jury.” Infra ¶ 45. See also Munninger, 209 Ariz. at 480-81, ¶ 21, 104 P.3d at 211-12 (“Our review of the decisions of the United States Supreme Court on point yields a clear direction that not just one, but all facts that can be used to increase punishment must be found by the jury.”). For reasons already expressed in

Part I of our Opinion, we respectfully disagree with our colleagues’ view that the Sixth Amendment requires that any and all aggravating circumstances considered by the trial court in determining a sentence must be based upon facts found by the jury or admitted by the defendant. ¶ 21 That the Munninger panel’s and the dissent’s overly broad

interpretation of the scope of the Apprendi/Blakely rule misses the mark is made clear by the recent United States Supreme Court decision in United States v. Booker, — U.S. —, 125 S.Ct. 738, — L.Ed.2d — (2005), applying Blakely to the Federal Sentencing Guidelines (Guidelines). After hearing evidence that Booker had 92.5 grams of crack cocaine in his duffel bag, the jury convicted him of possession with intent to distribute at least 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1). Id. at —, 125 S.Ct. at 751.

The Guidelines sentence authorized by the jury’s verdict was 210 to 262 months in prison. Id. However, at a post-trial sentencing proceeding, the trial judge found that Booker had possessed an additional 566 grams of crack and that he had obstructed justice. Id. Under the Guidelines, these additional findings required that the judge select a sentence between 360 months and life imprisonment; the judge imposed a 360-month sentence, thereby exceeding the sentence authorized by the jury verdict alone. Id. at —, —, 125 S.Ct. at 746, 751.

In the first of a two-part opinion, the “merits majority” (the same five-member majority of the Court that decided Apprendi and Blakely — Justices Stevens, Scalia, Souter, Thomas and Ginsburg) held Blakely applicable to the Guidelines. Id. at —, 125 S.Ct. at 742. Justice Stevens, writing for the merits majority, explained that the relevant portions of Washington’s determinate sen-fencing scheme found unconstitutional in Blakely were essentially indistinguishable from the comparable provisions of the Guidelines. Id. at -, 125 S.Ct. at 749.

Thus, Booker was entitled to a jury determination of the sentence-increasing facts for the same reason that Apprendi and Blakely were so entitled: “The determination [in Blakely ] that the defendant acted with deliberate cruelty, like the determination in Apprendi that the defendant acted with racial malice, increased the sentence that the defendant could have otherwise received.” Id. (Emphasis added.) See also id. at -, 125 S.Ct. at 748 (“Foreshadowing the result we reach today, we noted that our holding was consistent with a ‘rule requiring jury determination of facts that raise a sentencing ceiling ’ in state and federal sentencing guidelines systems.”) (quoting Jones, 526 U.S. at 251 n. 11, 119 S.Ct. 1215) (emphasis added).

Presaging his later argument — made in response to the second, or “remedial,” majority opinion — that Blakely has only a slight impact on a judge’s sentencing discretion, Justice Stevens noted that Blakely does not prevent a trial judge from finding and relying on additional aggravators in selecting an enhanced sentence: “Applying Blakely to the Guidelines would invalídate a sentence that relied on [a judicial finding that defendant committed perjury] if the resulting sentence was outside the range authorized by the jury verdict.

Nevertheless, there are many situations in which the district judge might find that the enhancement is warranted, yet still sentence the defendant within the range authorized by the jury.” Id. at -, 125 S.Ct. at 753. Finally, in reaffirming the Apprendi/Blakely principle, the Court reworded it as follows: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at -, 125 S.Ct. at 756 (emphasis added).

Thus, the merits majority clearly acknowledged that Blakely’s jury-trial guarantee is limited to factual determinations that are legally necessary to the sentence imposed, and, notwithstanding contrary assertions by the panel in Munninger and the dissent, is inapplicable to judicial determination of other facts — including aggravating factors — ultimately used by the court to determine the appropriate sentence. ¶22 Later, Justice Stevens, writing the lead dissent to the remedial opinion (joined in by Justice Souter and in which Justice Scalia joined in relevant part), in criticizing the remedial majority’s excision of the mandatory provisions in the Guidelines as unnecessary, emphasized that applying Blakely to the Guidelines as written would require only “limited jury factfinding,” id. at -, 125 S.Ct. at 780 n. 10, in part because “judicial factfinding to support an ... enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” Id. at -, 125 S.Ct. at 775 (emphasis in original).

Thus, as Justice Stevens pointed out, the Sixth Amendment violation in Booker could have been avoided entirely had the judge’s finding that Booker possessed an additional 566 grams of cocaine been made by the jury, which would have authorized a Guidelines sentence anywhere between 324 and 405 months. Id. at -, 125 S.Ct. at 772.

In that event, “[rjelying on his own appraisal of the defendant’s obstruction of justice, and presumably any other information in the presentence report, the judge would have had discretion to select any sentence within that range.” Id. ¶ 23 Likewise, because Estrada’s prior convictions exposed Mm to an aggravated sentence, “the judge [ ] had discretion to select any sentence witMn that range.” In other words, as stated in Martinez in the context of a Blakely-compliant finding by a jury, the “verdict expanded the sentencing range and the scope of the trial court’s sentencing discretion.” 209 Ariz. at 284, ¶ 16, 100 P.3d at 34.

By their contrary mterpretations, both the panel in Munninger, 209 Ariz. at 479, ¶ 16, 104 P.3d at 210 (“[W]e disagree that a single properly found aggravating factor satisfies Blakely when the sentence also rests on other aggravating factors not found by a jury.”) and the dissent, infra ¶ 45 (“The rule adopted by the majority today emasculates the principle that all factors used to aggravate a sentence beyond that inherent in the jury’s verdict, other than prior convictions or facts admitted by the defendant, must be found by the jury.”), place themselves at odds with the Supreme Court Justices who authored the opiMons (Apprendi and Blakely ) upon which they rely.

See also Booker, — U.S. at —, 125 S.Ct. at 798 (Thomas, J., dissenting from remedial majority) (“[Rule 32(c)(1)] is valid when it requires the sentencing judge, without a jury, to resolve a factual dispute m order to decide where within the jury-authorized Guidelines range a defendant should be sentenced.”). ¶24 Fortunately, the surgery performed by Booker’s remedial majority in transforming the Guidelines from a mandatory to an advisory system (undertaken to “maintain the judicial factfinding that Congress thought would underpin the mandatory Guidelines system,” — U.S. at —, 125 S.Ct. at 757) is probably unnecessary in Arizona because the sentencmg scheme established by §§ 13-701 and -702 already allows substantial judicial discretion.

Even when the trial court finds multiple aggravators, it is not required, with one exception, to impose an aggravated sentence. See § 13-702(A) (“Sentences provided in

section 13-701 ... may be increased or reduced by the court within the ranges set by this subsection.”) (emphasis added); § 13-702(D) (“In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to call for a lesser term.”). The only circumstance in wMeh a trial court must impose an aggravated sentence is when it finds one or more aggravators and no mitigators.

Supra ¶ 11. ¶25 Furthermore, m Arizona, unlike the system of overlapping “bumps” incorporated in the Guidelines, the existence of a single aggravator authorizes a judge (in Ms or her discretion) to impose a sentence up to the statutory maximum. Supra ¶ 11.

Therefore, assuming the presence of one Blakelyexempt or Biafceiy-compliant factor, superimposing Blakely onto the current Arizona statutory scheme “preserved] Sixth Amendment substance” by guaranteeing “in a meaningful way [ ] that the jury [ ] still stand[s] between the individual and the power of the government,” Booker, — U.S. at -, 125 S.Ct. at 752 (Stevens, J., merits majority), while also largely preservmg the traditional ability of a trial court to make sentencmg determinations based on its assessment of all relevant information regarding the defendant and the crime.

Conversely, the Munninger panel’s and the dissent’s approach would substantially limit a trial judge’s sentencmg discretion by completely eliminating its fact-finding role as to aggravating circumstances, a result that is neither constitutionally nor statutorily required. Moreover, the imposition of such a judicial straitjacket is contrary to sound sentencing policy. See id. at -, 125 S.Ct. at 760 (Breyer, J., for remedial majority) (“To engraft the Court’s constitutional requirement onto the sentencing statutes, however, would destroy the system.

It would prevent a judge from relying upon a presentence report for factual information, relevant to sentencing, uncovered after the trial. In doing so, it would ... weaken the tie between a sentence and an offender’s real conduct.”). ¶26 In

summary, Estrada’s prior felony convictions, which are Blakely-exempt, raised the “Blakely ” sentencing ceiling for his convictions for the offenses of burglary in the third degree and possession of burglary tools to 12 and 4.5 years, respectively. Hence, the trial court did not violate Estrada’s Sixth Amendment jury-trial guarantee when it considered (and properly found) additional aggravating factors not found by the jury, weighed them against the sole mitigating circumstance, and imposed aggravated sentences within the authorized ranges.

CONCLUSION ¶ 27 For the reasons set forth in this Opinion we affirm Estrada’s sentences. TIMMER, J., concurring. . "In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury ____" U.S. Const. amend. VI. . Estrada raises two issues on appeal. We address the additional issue raised by Estrada in a separate Memorandum Decision. See Ariz. R.Crim. P. 31.26. . These maximum terms could have been further increased pursuant to A.R.S. § 13-702.01 (2001) had the trial court found at least two substantial aggravating factors. .

Estrada's previous convictions include attempted burglary in the second degree (two times), trafficking in stolen property (two times), attempted theft, escape in the second degree, and solicitation to possess narcotic drugs. . We assume for purposes of our analysis that Arizona's procedures for imposing an aggravated sentence implicate Blakely, at least in part. See State v.

Resendis-Felix, 209 Ariz. 292, 294, ¶ 4 n. 1, 100 P.3d 457, 459 n. 1 (App.2004) (“It [] appears certain that Blakely applies [] to Arizona’s general noncapital sentencing statutes.”) (citing Brown (McMullen), 209 Ariz. at 203, ¶ 12, 99 P.3d at 18). The State does not contend otherwise. . It is worth noting that Blakely does not stand for the proposition that all sentences imposed pursuant to a determinate-type sentencing scheme are, for that reason, unconstitutional.

See id. at —, 124 S.Ct. at 2540 ("This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment.”). . See 18 U.S.C. § 924(c)(1)(A)(ii) (1998). . See, e.g., Apprendi, 530 U.S. at 481, 120 S.Ct. 2348 ("We should be clear that nothing in [our common-law] history suggests that it is impermissible for judges to exercise discretion — taking into account various factors relating both to offense and offender — in imposing a sentence within the range prescribed by statute.

We have often noted that judges in this country have long exercised discretion of this nature in imposing sentences within statutory limits in the individual case.”); Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ("[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.”). Compare Jones v.

United States, 526 U.S. 227, 251 n. 11, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (construing the different maximum sentences dependent upon the extent of harm to the victim in federal carjacking statute as an element of the crime). .

In Alire, the court reached the more limited holding “that a trial court’s consideration of additional aggravating factors not found by the jury in determining a defendant’s sentence does not violate the Sixth Amendment to the United States Constitution so long as (1) at least one aggravating circumstance is Blakely-compliant or exempt and (2) the court expressly has found that no mitigating circumstances exist." 209 Ariz. at 520-21, ¶ 14, 105 P.3d at 166-67.

Alire’s additional requirement that the trial court must also find the absence of any mitigating circumstances is based on its belief that such a finding is required by Ring III. Although we agree with much of the analysis (and the outcome) in Alire, for reasons already discussed, we nonetheless disagree with its implicit conclusion that Blakely would have been violated had the trial court also found mitigating circumstances.

We further note that, as a practical matter, Alire would require the State to prove all aggravating factors (with the exception of prior convictions) to the jury because the (non)existence of mitigating factors is not determined before sentencing. . We also disagree with our dissenting co-llegue’s reference to our decision as instituting a "trump rule,” which implies that our decision treats defendants’ Sixth Amendment rights as an outranked suit in a card game.

To the contrary, we are applying Blakely in a manner that complies with defendants' rights under the Sixth Amendment but also remains faithful, to the extent possible, with Arizona's statutory scheme, which requires trial court judges to consider all relevant factors in determining appropriate sentences. See A.R.S. § 13-702(C)(21) (Supp.2003) (permitting consideration of ”[a]ny other factor that the court deems appropriate to the ends of justice”). .

The comparable language in Apprendi, which was quoted in Blakely, is: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at -, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). .

To make the point clear that the Sixth Amendment does not per se prohibit judicial fact-finding at sentencing, Justice Stevens uses a hypothetical situation to illustrate Blakely's limited effect on the Guidelines: Consider, for instance, a case in which the defendant's initial sentencing range under the Guidelines is 130-to-162 months .... Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury.

If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement ..., which would raise the defendant's total offense level from 28 to 30. That, in turn, would raise the defendant's eligible sentencing range to 151-to-188 months.

That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sentencing judge then selected a sentence between 151-to-162 months — the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone. Id. at -, 125 S.Ct. at 774. .

During the applicable time period, Federal Rule of Criminal Procedure 32(c)(1) provided in relevant part: At the sentencing hearing, the court ... must rule on any unresolved objections to the pre-sentence report____For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. .

The Munninger panel asserts that Martinez “rests upon this proposition: Because a single aggravating factor can support an aggravated sentence, an aggravated sentence must be affirmed if a single aggravating factor was properly found, even though other aggravating factors used to increase the sentence were erroneously found." 209 Ariz. at 482, ¶ 24, 104 P.3d at 213 (emphasis added). However, in Martinez, the aggravating factor in the burglary and theft convictions — that the victim died — was implicit in the verdict and, therefore, Blakely-compliant. 209 Ariz. at 284, ¶ 16, 100 P.3d at 34.

Accordingly, the trial court's consideration of additional factors pursuant to § 13-702 was not "erroneous.”