The Blakely earthquake hits Arizona

Though there has previously been some Blakely rumblings in Arizona (detailed here and here and here), the Blakely earthquake officially hit the 48th state through the Arizona Supreme Court's decision in State v. Brown, 2004 WL 2390005 (Ariz. Oct. 27, 2004).

Brown is a fascinating little opinion as much for what it does not say, because on appeal the government conceded that the lower court opinion, which held that the "maximum sentence" for purposes of Apprendi was the super-aggravated 12+ year sentencing term under Arizona law, "cannot withstand analysis in light of Blakely." Specifically, the Arizona Supreme Court confirmed that it was no longer proper for a defendant to be "sentenced to a term greater than the presumptive sentence solely on the basis of facts found by the trial judge upon a showing of 'reasonable evidence'":

The "maximum sentence" for Apprendi analysis in this case is the five-year presumptive sentence in § 13-701(C)(1). Because a sentence in excess of five years could be imposed on McMullen only after a finding of one or more of the aggravating circumstances in § 13-702(C), the Sixth Amendment guarantee of jury trial extends to the finding of these facts and requires proof beyond a reasonable doubt.

But, after making clear the applicability of Blakely to Arizona's basic sentencing structure, the Brown court stopped in its tracks:

The parties and their amici ... ask us to address myriad other questions that may arise either in the further prosecution of this case or in other cases potentially affected by the Apprendi and Blakely decisions. Given the procedural posture in which this case arrived in this Court, we decline to do so. While many of these additional issues deserve serious consideration, almost none have been directly addressed by the trial judge, and none were raised in or decided by the court of appeals. We are unwilling, even in this important area of the law, to consider these issues as an initial matter in the context of this special action.

We recognize and appreciate the interest that both the State and the defense bar have in understanding the full implications of Apprendi and its progeny for the Arizona sentencing scheme. We believe, however, that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. We also are mindful that the legislature may choose to moot many such questions, as it did in the wake of Ring, by enacting new sentencing statutes. We therefore leave additional questions not addressed below to another day.