A jury convicted the defendant of aggravated assault; the trial court imposed an aggravated and enhanced sentence. After appeals attacking the lack of jury findings of the aggravating facts upon which the sentence was imposed, the Arizona Supreme Court remanded to the Court of Appeals for reconsideration in light of State v. Martinez, 210 Ariz. 578 (2005) and State v. Henderson, 210 Ariz. 561 (2005). On remand, the Court of Appeals affirmed the sentence. Because the defendant did not object at trial to the lack of jury findings of aggravating facts, the court reviewed only for fundamental error and held that the defendant could not satisfy his burden to show prejudice. And, because the finding of one aggravator, extraordinary harm to the victim, was “indisputable” there was no fundamental error in imposing an aggravated sentence even though the judge, in sentencing, also found and considered two other aggravating facts. In dissent, Judge Lankford said the proper question should be, not whether one aggravating factor was enough to expose the defendant to the range of sentence imposed, but instead whether the same sentence would have been imposed had the jury found only one aggravator, as compared to the three aggravators considered at sentencing. Given that judges rarely, if ever, pronounce hypothetical sentences regarding what punishment they would have imposed on the basis of a finding of any possible subset of the specific aggravators considered, the majority’s decision renders Blakely error almost never remediable, because the defendant cannot prove that the sentence would have been different had the judge not considered the aggravators that were not found by the jury. “But,” Lankford wrote, “it surely is not harmless for a defendant to be sentenced to a greater sentence than the facts justify.”
Judge Irvine wrote the opinion and was joined by Judge Norris; Judge Lankford dissented.