State v. Hurley

In State v. Hurley, 154 Ariz. 124, 132, 741 P.2d 257, 265 (1987), the supreme court held that "the release status is a sentencing factor which may be found by the court at the sentencing hearing." In Hurley, the State alleged, pursuant to 13-604.02(A), that the defendant committed a dangerous offense while on release following a felony conviction. Id. at 126, 741 P.2d at 259. That allegation increased the statutory maximum penalty to mandatory life imprisonment without possibility of parole for twenty-five years. Id. Hurley, which was decided before Apprendi, held that the allegation was a sentencing factor that could be decided by the judge by clear and convincing evidence. Id. at 130, 741 P.2d at 263. The Arizona Supreme Court reached a different conclusion in State v. Powers, 154 Ariz. 291, 742 P.2d 792 (1987), which involved the same increased statutory maximum penalty as in Hurley. In Powers, however, the 13-604.02(A) allegation was that defendant committed the current offense while on "escape from confinement." 154 Ariz. at 292, 742 P.2d at 793. The court concluded that, because "escape" was a separate crime and not just a release status, defendant was entitled to a trial by jury on that allegation under the reasonable doubt standard. Id. at 294, 742 P.2d at 795. The court based its decision on "independent state grounds" and the Arizona Constitution. Id. at 294-95, 742 P.2d at 795-96.