State v. Carreon

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0160-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 2001-090195
ALBERT MARTINEZ CARREON, )
) S U P P L E M E N T A L
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Maricopa County
Honorable James H. Keppel
SENTENCES AFFIRMED
________________________________________________________________

TERRY GODDARD, ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Dawn M. Northup, Assistant Attorney General
Attorneys for the State of Arizona

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Brent E. Graham, Deputy Public Defender
Karen M. Noble, Deputy Public Defender
Attorneys for Albert Martinez Carreon
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 A jury convicted Albert Martinez Carreon of first

degree murder and sentenced Carreon to death. The jury also

convicted Carreon of several non-capital offenses, for which the

trial judge imposed various terms of imprisonment. We affirmed

his convictions and sentence of death in State v. Carreon, 210

Ariz. 54, ___ ¶ 100, 107 P.3d 900, 920 (2005).
¶2 In a supplemental brief filed after the United States

Supreme Court issued its opinion in Blakely v. Washington, 542

U.S. 296 (2004), Carreon challenged the procedure by which the

trial court imposed aggravated sentences for his non-capital

convictions. Carreon contends that the Sixth Amendment required

a jury, not a judge, to find all of the aggravating factors on

which the court relied in sentencing him. In our previous

opinion in this case, we stated that we would address this issue

in a supplemental opinion. Carreon, 210 Ariz. at ___ ¶ 125, 107

P.3d at 922. This is that opinion.1 We find no error.

I.

¶3 The trial judge sentenced Carreon to aggravated prison

terms on his non-capital convictions pursuant to Arizona Revised

Statutes (A.R.S.) § 13-604 (2001) and § 13-702 (2001). Carreon

does not assert that the trial judge erred in relying upon these

statutes. Carreon does not dispute that his use of a deadly

weapon during the commission of his crimes brought him within

the ambit of § 13-604 and does not argue that any sentence

imposed for his non-capital offenses fell outside the sentencing

range allowed under § 13-604 when one or more of the § 13-702.C

aggravators are present. Carreon also acknowledges that the

State proved to the jury that he previously had been convicted

1
We exercise jurisdiction pursuant to Article 6, Section 5.3
of the Arizona Constitution and A.R.S. § 13-4031 (2001).

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of two felonies and that he committed the offenses while on

release from the Department of Corrections. Carreon’s only

claim is that the trial judge violated his Sixth Amendment right

to a trial by jury by finding and relying upon aggravators other

than those found by the jury.

¶4 Although the trial judge did not make specific

findings of aggravation under A.R.S. § 13-702.C, he made the

following statement with regard to the non-capital sentences:

The defendant, as proven during the course of the
trial, did have prior felony convictions and was on
release at the time he committed these offenses. I
further find that he’s a stone-cold killer and a
danger to society, all of which aggravating factors
call for the maximum possible terms to be imposed.

¶5 The Sixth Amendment to the United States Constitution

guarantees a criminal defendant’s right to a trial by jury.

That right continues through sentencing. The Sixth Amendment,

however,

does not remove from a trial judge the traditional
sentencing discretion afforded the judge, so long as
the judge exercises that discretion within a
sentencing range established by the fact of a prior
conviction, facts found by a jury, or facts admitted
by a defendant. Once a jury finds the facts legally
essential to expose a defendant to a statutory
sentencing range, the sentencing judge may consider
additional factors in determining what sentence to
impose, so long as the sentence falls within the
established range.2

2
Only those facts that increase the maximum sentence to
which a defendant is exposed are legally essential to the
defendant’s sentence. State v. Martinez, ___ Ariz. ___ ¶ 21,
___ P.3d ___ (2005).

3
State v. Martinez, ___ Ariz. ___ ¶ 16, ___ P.3d ___ (2005).

¶6 The State alleged and proved at trial that Carreon had

previously been convicted of two felonies, kidnapping and

aggravated assault. The presence of this aggravator alone

exposed Carreon to the aggravated sentencing range of § 13-604.

¶7 Nonetheless, Carreon alleges that the trial judge

violated his Sixth Amendment right by finding additional

aggravating factors that were not admitted by him, not implicit

in the jury’s verdict, and not presented to the jury and found

beyond a reasonable doubt. We explicitly rejected Carreon’s

argument in Martinez. Under our holding there, once

constitutionally permitted factors made Carreon eligible for

aggravated sentences, the trial judge could “find and consider

additional factors relevant to the imposition of a sentence up

to the maximum prescribed in [the sentencing] statute.”

Martinez, ___ Ariz. at ___ ¶ 26, ___ P.3d at ___.

II.

¶8 For the foregoing reasons, we affirm Carreon’s non-

capital sentences.

_________________________________________
Ruth V. McGregor, Chief Justice

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CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

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