State v. Aleman4/4/2005
ly showed that two of the victims were minors, and their young ages were specifically referred to at sentencing without contradiction. Thus, "no reasonable jury could have concluded differently than the trial judge concluded." Henderson, 209 Ariz. 300, 41, 100 P.3d at 923. And both the prosecutor and the trial court noted at sentencing, without objection or dispute, that at the time of the offenses Aleman had not only a prior DUI conviction, but also a pending DUI charge on which he later was convicted. Finally, none of the aggravating factors involved "an inherently subjective determination." Timmons, 209 Ariz. 403, 14, 103 P.3d at 319; see also Oaks, 209 Ariz. 432, 23, 104 P.3d at 168.
In short, "we have no difficulty in concluding that on the record in this case no reasonable jury could have concluded differently than the trial judge concluded" on these other aggravating circumstances the trial court cited. Henderson, 209 Ariz. 300, 41, 100 P.3d at 923. And, although the trial court also found some mitigating factors and weighed them against the aggravating factors, based on the particular factors found and the slightly aggravated sentence the court imposed (a mere six months above the presumptive term), we conclude beyond a reasonable doubt that any alleged Blakely error "did not contribute to or affect the sentencing outcome here." Resendis-Felix, 209 Ariz. 292, 11, 100 P.3d at 460. Thus, any alleged Blakely error was harmless beyond a reasonable doubt.
DISPOSITION
Aleman's convictions and sentences are affirmed.
JOHN PELANDER, Chief Judge
ESPINOSA, Judge, specially concurring.
I fully concur in the analysis of the motion-to-suppress issue and the ultimate disposition affirming Aleman's convictions and sentences. With respect to the Blakely issues, however, I would find no error, and therefore no need to engage in any harmless error review. Under Blakely, Aleman's prior conviction, by itself, authorized the aggravated range and permitted the trial court to impose a sentence anywhere up to the prescribed statutory maximum. State v. Estrada, 446 Ariz. Adv. Rep. 30 (Ct. App. March 4, 2005);State v. Chiappetta, ___ Ariz. ___, 107 P.3d 366 (App. 2005) (Espinosa, J.); see State v. Martinez, 209 Ariz. 280, 100 P.3d 30 (App. 2004) (one Blakely-compliant aggravator permits sentencing within expanded statutory range).
It also bears mention that the dissent's view that any Blakely error, by its very nature, is structural and, therefore, not subject to harmless error review has been rejected by both divisions of this court. See State v. Henderson, 209 Ariz. 300, 100 P.3d 911 (App. 2004); State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App. 2004). Furthermore, the notion that a sentencing factor admitted by a defendant is subject to independent review pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969), needlessly elevates form over substance, particularly on the facts here. There is no question or doubt about the status of Aleman's suspended license, which the jury expressly found in its verdicts on the DUI charges, or his prior DUI conviction. Indeed, Aleman knowingly and with the assistance of counsel stipulated to the former and acknowledged the latter to the court at sentencing and does not contest those facts or raise the theory adopted by the dissent.
Our supreme court has said: "In cases in which a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, we will regard that factor as established." State v. Ring, 204 Ariz. 534, 563, 65 P.3d 915, 944 (2003); see also State v. Finch, 205 Ariz. 170, 68 P.3d 123 (20
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