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State v. Lara9/20/1990
eme court later explained, the aggravating factor approved in Bly was not an essential definitional element of the crime. See State v. Orduno, 159 Ariz. 564, 567, 769 P.2d 1010, 1013 (1989).
Recently, this court upheld the use of a necessary element of the crime to aggravate a sentence " here the degree of the defendant's misconduct rises to a level beyond that which is merely necessary to establish an element of the underlying crime." State v. Germain, 150 Ariz. 287, 290, 723 P.2d 105, 108 (App.1986). In Germain, a case of reckless manslaughter, we observed that the defendant's recklessness went well beyond the requisite minimum.
Id. at 291, 723 P.2d at 109. We added, however, that recklessness no more than minimally sufficient to establish the requisite culpable mental state could not simultaneously aggravate the defendant's sentence. Id. at 290, 723 P.2d at 108.
More recently, in State v. Orduno, a DUI case, our supreme court held that a motor vehicle operated by a defendant could not be considered a "dangerous instrument" for purposes of A.R.S. § 13-604 sentence enhancement because it was "an essential and necessary element of the crime." 159 Ariz. at 566, 769 P.2d at 1012 (emphasis added). Although the Orduno court carefully limited its holding to the interplay between the dangerous instrument provision of 13-604 and DUI cases, it elucidated general principles applicable here.
Aggravating factors allow a trial court to distinguish among nominally similar crimes. A.R.S. § 13-702(D)(1) authorizes an aggravated sentence when the infliction of serious physical injury increases the seriousness of the underlying crime. But because all manslaughters must, by definition, entail injury serious enough to cause death, § 13-702(D)(1) cannot serve to distinguish one manslaughter as more aggravated than another. It is inherent in our sentencing scheme that the "presumptive" sentence is indeed presumptive for conduct that satisfies each element of the crime. The trial court must designate conduct that exceeds the elements and aggravates the circumstances to justify a longer sentence than the presumptive. See Bly, 127 Ariz. at 372, 621 P.2d at 281. An aggravating factor must surpass the definition of the crime. State v. Sexton, 163 Ariz. 301, 303, 787 P.2d 1097, 1099 (1989).
We acknowledge that this court has extended Bly in decisions irreconcilable with the principle we develop in this case. State v. Just, 138 Ariz. 534, 675 P.2d 1353 (App.1983) (death of victim is an appropriate aggravating factor for a second degree murder sentence); State v. Meador, 132 Ariz. 343, 645 P.2d 1257 (App.1982) (same); State v. Howard, 163 Ariz. 47, 51, 785 P.2d 1235, 1239 (App.1989) (death of victim is a proper aggravating factor for negligent homicide).
In each of those cases, as in Bly, the aggravating factor was numbered among the aggravating factors specified by the legislature in A.R.S. § 13-702(D). Those cases differed from Bly, however, in a respect later emphasized in Orduno. Use of a deadly weapon -- the designated aggravating factor in Bly -- was not an essential definitional element of armed robbery; it was simply one among several ways that an offender could a
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