Apprendi error in Arizona

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2014In Ring III, our supreme court rejected the contention that Apprendi error was structural. 204 Ariz. 534, ¶¶ 44-53 , 65 P.3d at 933-36.

2005Ed. 2d 435, 455 (2000), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, the Court expounded on the holding of Apprendi, stating that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” ___ U.S. at ___, 124 S. Ct. at 2537 . ¶23 Under our supreme court’s holding in St

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2003Noting in Benenati that “a fact exposing a defendant to increased sentencing, not the actual sentence imposed, is the litmus test,” we “strictly limit[ed] to the fact of a prior conviction the Apprendi exception permitting a court, and not a jury, to find sentence enhancers that expose a defendant to a sentence greater than otherwise permissible.” 203 Ariz. 235, ¶¶ 13, 22 , 52 P.3d 804, ¶¶ 13, 22 . ¶ 12 Similarly, in Nichols, 201 Ariz. 234, ¶ 7 , 33 P.3d 1172, ¶ 7 , we held that “the fact of drug-sale income greater than $25,000 [under A.R.S. § 13-3410(A) ] must be found by a jury beyond a rea

2003Noting in Benenati that “a fact exposing a defendant to increased sentencing, not the actual sentence imposed, is the litmus test,” we “strictly limit[ed] to the fact of a prior conviction the Apprendi exception permitting a court, and not a jury, to find sentence enhancers that expose a defendant to a sentence greater than otherwise permissible.” 203 Ariz. 235, ¶¶ 13, 22 , 52 P.3d 804, ¶¶ 13, 22 . ¶ 12 Similarly, in Nichols, 201 Ariz. 234, ¶ 7 , 33 P.3d 1172, ¶ 7 , we held that “the fact of drug-sale income greater than $25,000 [under A.R.S. § 13-3410(A) ] must be found by a jury beyond a rea

2017The finding that this prior conviction for possession of dangerous drugs involved methamphetamine was an issue of law for the court that falls within the Apprendi exception for the “fact of a prior conviction.” See State v. Pandeli, 204 Ariz. 569, 571 , ¶¶ 6– 7 (2003) (holding that the Sixth Amendment does not require a jury to determine the existence of a prior conviction of a “serious offense” as an aggravating circumstance in a capital case); Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 8 (App. 2002) (holding that Apprendi permits the superior court to determine whether a prior conviction is a

2017The finding that this prior conviction for possession of dangerous drugs involved methamphetamine was an issue of law for the court that falls within the Apprendi exception for the “fact of a prior conviction.” See State v. Pandeli, 204 Ariz. 569, 571 , ¶¶ 6– 7 (2003) (holding that the Sixth Amendment does not require a jury to determine the existence of a prior conviction of a “serious offense” as an aggravating circumstance in a capital case); Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 8 (App. 2002) (holding that Apprendi permits the superior court to determine whether a prior conviction is a

2005See also State v. Rodriguez, 200 Ariz. 105, 107, ¶ 10 , 23 P.3d 100, 102 (App.2001) (concluding no Apprendi violation occurred when judge’s presentence factual findings did not increase the statutory maximum prison sentence defendant faced). ¶24 Counsel’s failure to predict future changes in the law, and in particular the Blakely decision, is not ineffective because “[cjlairvoyance is not a required attribute of effective representation.” United States v. Gonzalez-Lerma, 71 F.3d 1537, 1541-42 (10th Cir.1995) (citations omitted).

2005See also State v. Rodriguez, 200 Ariz. 105, 107, ¶ 10 , 23 P.3d 100, 102 (App.2001) (concluding no Apprendi violation occurred when judge’s presentence factual findings did not increase the statutory maximum prison sentence defendant faced). ¶24 Counsel’s failure to predict future changes in the law, and in particular the Blakely decision, is not ineffective because “[cjlairvoyance is not a required attribute of effective representation.” United States v. Gonzalez-Lerma, 71 F.3d 1537, 1541-42 (10th Cir.1995) (citations omitted).

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2005See State v. Sepahi, 206 Ariz. 321, n. 3 , 78 P.3d 732 , 735 n. 3 (2003) ("any Apprendi error would be harmless"); Henderson, 209 Ariz. 300, ¶¶ 22, 33 , 100 P.3d at 917, 921-22 (noting that "every federal circuit court has ... been uniform in holding that Apprendi error can be reviewed for harmless error" and that "other courts, since Blakely , have also applied a harmless error analysis to Blakely violations"); Resendis-Felix, 209 Ariz. 292, ¶¶ 8-10 , 100 P.3d at 460 ; Martinez, 209 Ariz. 280, ¶ 1 , 100 P.3d at 31-32 (holding that " Blakely error is subject to harmless error or fundamental er

2026As we explained, “[b]ecause the outcome of the ‘same occasion’ determination could enhance a defendant’s sentence, and falls outside the Apprendi exception for ‘the fact of a prior conviction,’ the issue should have been submitted to a jury.” Id. at ¶ 10 (quoting Apprendi, 530 U.S. at 490 ).

2026As we explained, “[b]ecause the outcome of the ‘same occasion’ determination could enhance a defendant’s sentence, and falls outside the Apprendi exception for ‘the fact of a prior conviction,’ the issue should have been submitted to a jury.” Id. at ¶ 10 (quoting Apprendi, 530 U.S. at 490 ).

2016Subsequently, Blakely v. Washington, 542 U.S. 296, 303, 308 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), clarified that Apprendi created a bright-line rule prohibiting the trial court from imposing a sentence beyond the “maximum sentence it may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” More recently, the Court expanded the Apprendi rule to fact-finding in the context of criminal fines.

2016Subsequently, Blakely v. Washington, 542 U.S. 296, 303, 308 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), clarified that Apprendi created a bright-line rule prohibiting the trial court from imposing a sentence beyond the “maximum sentence it may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” More recently, the Court expanded the Apprendi rule to fact-finding in the context of criminal fines.

2018Brown, 209 Ariz. at 202–03 ¶¶ 11–12.

2005Thus, we held in Brown (McMullen) that the “presumptive sentence” under § 13-701 is the “maximum sentence” for purposes of Apprendi analysis. 209 Ariz. at 203 ¶ 12, 99 P.3d at 18 . ¶ 14 However, the statutes governing sentencing for first degree murder are markedly different.

2014Therefore, relying on jury instruction cases in which the court failed to instruct on an element of an offense, the court concluded the failure to submit the aggravating factors to the jury did not “infect the trial process from beginning to end.” Id. ¶ 50; see also United States v. Cotton, 535 U.S. 625, 630-33 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (harmless error when trial court made findings on volume of drugs involved, rather than jury); Neder v. United States, 527 U.S. 1, 19-20 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (omitting element of offense from jury instructions does not taint

2014Therefore, relying on jury instruction cases in which the court failed to instruct on an element of an offense, the court concluded the failure to submit the aggravating factors to the jury did not “infect the trial process from beginning to end.” Id. ¶ 50; see also United States v. Cotton, 535 U.S. 625, 630-33 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (harmless error when trial court made findings on volume of drugs involved, rather than jury); Neder v. United States, 527 U.S. 1, 19-20 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (omitting element of offense from jury instructions does not taint

2004See e.g., United States v. Dumes, 313 F.3d 372 (7th Cir.2002); United States v. Matthews, 312 F.3d 652 (5th Cir.2002); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); accord United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002); United States v. White, 240 F.3d 127 (2d Cir.2001).

2004See e.g., United States v. Dumes, 313 F.3d 372 (7th Cir.2002); United States v. Matthews, 312 F.3d 652 (5th Cir.2002); United States v. Sanders, 247 F.3d 139 (4th Cir.2001); accord United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002); United States v. White, 240 F.3d 127 (2d Cir.2001).

2001Although Division One of this court has recently held that on release status under current A.R.S. § 13-604(R) is encompassed by the Apprendi rule for cases on direct appeal, State v. Gross, 201 Ariz. 41 , 31 P.3d 815 (Ct.App.2001), we need not reach that question for former § 13-604.02(A) because we agree with the state’s contention that Apprendi does not apply retroactively to persons such as petitioner whose convictions have become final. 2 ¶ 5 In State v. Slemmer, 170 Ariz. 174 , 823 P.2d 41 (1991), our supreme court addressed the question of the retroactivity of a significant change in the

2001Although Division One of this court has recently held that on release status under current A.R.S. § 13-604(R) is encompassed by the Apprendi rule for cases on direct appeal, State v. Gross, 201 Ariz. 41 , 31 P.3d 815 (Ct.App.2001), we need not reach that question for former § 13-604.02(A) because we agree with the state’s contention that Apprendi does not apply retroactively to persons such as petitioner whose convictions have become final. 2 ¶ 5 In State v. Slemmer, 170 Ariz. 174 , 823 P.2d 41 (1991), our supreme court addressed the question of the retroactivity of a significant change in the

2016Romley v. Gaines, 205 Ariz. 138, ¶ 19 , 67 P.3d 734, 740 (App. 2003) (public policy issues firmly in the province of the legislature, not the court of appeals); cf. Henderson, 210 Ariz. 561, ¶ 19 , 115 P.3d at 607 (scope of review for fundamental error is limited). 6 STATE v. LEON Opinion of the Court Conclusion ¶13 Because restitution is neither a penalty nor subject to a statutory maximum, and because the Apprendi rule does not apply here, the trial court did not err in imposing restitution in excess of the jury verdict.

2016Romley v. Gaines, 205 Ariz. 138, ¶ 19 , 67 P.3d 734, 740 (App. 2003) (public policy issues firmly in the province of the legislature, not the court of appeals); cf. Henderson, 210 Ariz. 561, ¶ 19 , 115 P.3d at 607 (scope of review for fundamental error is limited). 6 STATE v. LEON Opinion of the Court Conclusion ¶13 Because restitution is neither a penalty nor subject to a statutory maximum, and because the Apprendi rule does not apply here, the trial court did not err in imposing restitution in excess of the jury verdict.

2016See S. Union Co., 132 S.Ct. at 2348-50 (jury must determine facts establishing criminal fine). ¶ 9 Leon acknowledges that no court has applied Apprendi to restitution awards but argues for its expansion, contending Arizona courts have mischaraeterized restitution as a civil remedy, and that it “is actually a punishment” requiring “jury determination of the amount ... owed.” Cf. id. at 2350-51 (Ap-prendi and Sixth Amendment right to jury trial only “triggered” when punishment imposed).

2016See S. Union Co., 132 S.Ct. at 2348-50 (jury must determine facts establishing criminal fine). ¶ 9 Leon acknowledges that no court has applied Apprendi to restitution awards but argues for its expansion, contending Arizona courts have mischaraeterized restitution as a civil remedy, and that it “is actually a punishment” requiring “jury determination of the amount ... owed.” Cf. id. at 2350-51 (Ap-prendi and Sixth Amendment right to jury trial only “triggered” when punishment imposed).

2016See Fancher, 169 Ariz. at 268 , 818 P.2d at 253 (restitution not limited to value range of specific crime of which defendant was convicted).

2016See Fancher, 169 Ariz. at 268 , 818 P.2d at 253 (restitution not limited to value range of specific crime of which defendant was convicted).

2005And, as the state correctly points out, " Blakely did not alter Apprendi's exception of the fact of a prior conviction from the dictates of the Sixth Amendment trial-by-jury requirement." See Blakely, ___ U.S. at ___, 124 S.Ct. at 2536 (applying, but not altering, "the rule we expressed in Apprendi , " which expressly excluded" `the fact of a prior conviction'"), quoting Apprendi, 530 U.S. at 490 , 120 S.Ct. at 2362-63 , 147 L.Ed.2d at 455 ; State v. Cons, 208 Ariz. 409, ¶ 15, n. 3 , 94 P.3d 609, 614-15 , 613 n. 3 (App.2004). [10] *580 ¶ 26 Moreover, Apprendi's exception of the "fact" of a pri

2005And, as the state correctly points out, " Blakely did not alter Apprendi's exception of the fact of a prior conviction from the dictates of the Sixth Amendment trial-by-jury requirement." See Blakely, ___ U.S. at ___, 124 S.Ct. at 2536 (applying, but not altering, "the rule we expressed in Apprendi , " which expressly excluded" `the fact of a prior conviction'"), quoting Apprendi, 530 U.S. at 490 , 120 S.Ct. at 2362-63 , 147 L.Ed.2d at 455 ; State v. Cons, 208 Ariz. 409, ¶ 15, n. 3 , 94 P.3d 609, 614-15 , 613 n. 3 (App.2004). [10] *580 ¶ 26 Moreover, Apprendi's exception of the "fact" of a pri

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2005E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim

2004B. ¶ 19 In addressing the question of whether Blakely error is structural error, we look first to Blakely's predecessors, Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) (" Ring II "). ¶ 20 The law regarding Apprendi error is a substantial factor in our analysis.

2004B. ¶ 19 In addressing the question of whether Blakely error is structural error, we look first to Blakely's predecessors, Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002) (" Ring II "). ¶ 20 The law regarding Apprendi error is a substantial factor in our analysis.

2017The finding that this prior conviction for possession of dangerous drugs involved methamphetamine was an issue of law for the court that falls within the Apprendi exception for the “fact of a prior conviction.” See State v. Pandeli, 204 Ariz. 569, 571 , ¶¶ 6– 7 (2003) (holding that the Sixth Amendment does not require a jury to determine the existence of a prior conviction of a “serious offense” as an aggravating circumstance in a capital case); Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 8 (App. 2002) (holding that Apprendi permits the superior court to determine whether a prior conviction is a

2017The finding that this prior conviction for possession of dangerous drugs involved methamphetamine was an issue of law for the court that falls within the Apprendi exception for the “fact of a prior conviction.” See State v. Pandeli, 204 Ariz. 569, 571 , ¶¶ 6– 7 (2003) (holding that the Sixth Amendment does not require a jury to determine the existence of a prior conviction of a “serious offense” as an aggravating circumstance in a capital case); Cherry v. Araneta, 203 Ariz. 532, 534, ¶ 8 (App. 2002) (holding that Apprendi permits the superior court to determine whether a prior conviction is a

2017See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); see also Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (holding that the Apprendi rule also applies to any fact that increases the mandatory minimum sentence).

2017See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”); see also Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (holding that the Apprendi rule also applies to any fact that increases the mandatory minimum sentence).

2005That case also dealt with an Apprendi claim, and the court simply stated that Sowemimo’s “guilty plea did not reserve this as an argument for appeal, and it is thus waived.” Id. ¶ 22 Lastly, the State argues that pursuant to State v. Murdaugh, 209 Ariz. 19 , 97 P.3d 844 (2004), the fact that the law changed after Ward pled guilty does not render his plea involuntary.

2005That case also dealt with an Apprendi claim, and the court simply stated that Sowemimo’s “guilty plea did not reserve this as an argument for appeal, and it is thus waived.” Id. ¶ 22 Lastly, the State argues that pursuant to State v. Murdaugh, 209 Ariz. 19 , 97 P.3d 844 (2004), the fact that the law changed after Ward pled guilty does not render his plea involuntary.