Authority to Empanel a New Jury ¶ 33 Barnes also relies on State ex rel. Neely v. Sherrill (Segelson) , 168 Ariz. 469, 815 P.2d 396 (1991), and State v. Johnson , 183 Ariz. 358, 903 P.2d 1116 (App. 1995), to argue empaneling a new jury is impermissible under Arizona law because "[i]n the present case, the state bears more than a share of the blame for the claimed necessity for a second trial." In Segelson and Gandara , companion cases consolidated for special-action review on petitions from the state, defendants had absconded either before or during trial.
¶ 21 Ordinarily, when enhancements are determined by a jury, they should be tried by the same jury that tried the substantive charge. State v. Johnson (Johnson II), 183 Ariz. 358, 360, 903 P.2d 1116, 1118 (App. 1995). When a sentence enhancement is overturned on appeal, and a defendant has waived a double jeopardy claim, no rules or statutes preclude a different jury from determining the sentence enhancement on retrial.
Prior to that time, the trier of fact was statutorily required to make such a finding. 1994 Ariz. Sess. Laws, ch. 236, § 1; see also State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995). Our supreme court's denial of review in Gross affects neither our analysis nor our decision.
In support of this claim, Petitioner did not cite to any federal authorities, federal cases, or federal constitutional provisions or argue any federal legal theories. Petitioner's Supplemental Brief did cite to: State v. Armendariz, 127 Ariz. 422, 621 P.2d 928 (App. 1980); State v. Hickman, 194 Ariz. 248, 980 P.2d 501, 295 Ariz. Adv. Rep. 16 (1999); State v. Taylor, 187 Ariz. 567, 571-72, 931 P.2d 1077, 1081-82 (App. 1996); and State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995). (Exhibit D at 7-8.)
While the court did not state that the error was structural, it remanded without applying harmless error analysis. We also recognize that in State v. Johnson, 183 Ariz. 358, 360, 903 P.2d 1116, 1118 (App. 1995), we held that "it was fundamental error for the trial court not to have submitted [an A.R.S. § 13-604(R) question] to the jury." In that case, however, the State asked to have the sentence vacated and did not contest the need for resentencing.
This includes the similar error of failing to submit to a jury a sentencing enhancement allegation. State v. Johnson, 183 Ariz. 358, 360, 903 P.2d 1116, 1118 (App. 1995). See State v. Alvarez, 205 Ariz. 110, 112 n. 1, 67 P.3d 706, 708 n. 1 (App. 2003) ("Sentence enhancement elevates the entire range of permissible punishment while aggravation and mitigation raise or lower a sentence within that range.").
We will, therefore, in our discretion address Resendis-Felix's supplemental issue. See State v. Taylor, 187 Ariz. 567, 931 P.2d 1077 (App. 1996) (appellate court has authority to reverse when it discovers fundamental error); see also State v. Dewakuku, 208 Ariz. 211, ¶ 7, 92 P.3d 437, 440 (App. 2004) (considering application of Apprendi to finding of defendant's on-release status, even though defendant had not objected to court's making finding below, because "a sentence that is improperly imposed can be reversed on appeal despite the lack of an objection"); State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995) (fundamental error for trial court to make sentence-enhancement determination jury was required to make); cf. Montgomery v. Sheldon, 182 Ariz. 118, 119, 893 P.2d 1281, 1282 (1995) ("[A] Rule 32 proceeding is the appeal for a defendant pleading guilty."); State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App. 2001) (because Apprendi presents new rule of constitutional law, its holding will be applied to cases pending on direct review). ¶ 7
Additionally, although the statutory sentencing scheme does not currently provide for convening a jury trial during the sentencing phase of a non-capital case, nothing in our rules or statutes prohibits the court from doing so. See State v. Johnson, 183 Ariz. 358, 360, 903 P.2d 1116, 1118 (App. 1995) (concluding court may convene a second jury to try allegation of prior convictions as nothing in rules or statutes prohibits practice). Thus, to assist the court in the exercise of its jurisdiction to sentence Aragon, the court may utilize its inherent authority to convene a jury trial on the existence of facts that may support imposition of an aggravated sentence.