FILED BY CLERK
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
SEP 30 2010
COURT OF APPEALS
DIVISION TWO
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA,
Respondent,
v.
AMMAR DEAN HALLOUM,
Petitioner.
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2 CA-CR 2010-0152-PR
DEPARTMENT A
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20072618
Honorable Richard S. Fields, Judge
REVIEW GRANTED; RELIEF DENIED
Terry Goddard, Arizona Attorney General
By Gabriel J. Chin
Ammar Dean Halloum
Tucson
Attorneys for Respondent
Florence
In Propria Persona
E S P I N O S A, Judge.
¶1
Pursuant to a plea agreement, Ammar Halloum was convicted of theft by
financial exploitation of a vulnerable adult and fraudulent scheme and artifice. The trial
court sentenced him to a presumptive prison term of 2.5 years for the theft conviction, to
be followed by a seven-year term of probation for the fraudulent scheme and artifice
conviction. In imposing sentence, the court stated it had considered, as aggravating
circumstances, “that the offense was carried out for pecuniary gain; the impact on the
victim; the age of the victim; and the fact that [Halloum had been] in a fiduciary
relationship with the victim” and, as mitigating circumstances, Halloum’s remorse and
acceptance of responsibility.
¶2
In an of-right petition for post-conviction relief filed pursuant to Rule 32,
Ariz. R. Crim. P., Halloum argued his sentences were illegal because the trial court had
considered aggravating factors that were essential elements of his offenses. The court
found Halloum had failed to state a colorable claim and summarily denied relief. This
petition for review followed.
¶3
On review, Halloum asserts the same arguments he raised below. He
contends the court “illegally aggravated” his sentence “to [a] presumptive” term of
imprisonment and imposed a maximum term of probation, when it should have imposed
“substantial[ly] mitigated or minimum” terms.
We will not disturb a trial court’s
summary denial of post-conviction relief unless the court has abused its discretion. See
State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find no such abuse
here.
¶4
As the trial court stated in its ruling, Halloum was not sentenced to an
aggravated prison term, and nothing precludes a court from “consider[ing] the
circumstances of an offense to nullify purported mitigation and impose a presumptive
term.” See A.R.S. § 13-701(F)1 (in determining sentence, “court shall take into account
1
The Arizona criminal sentencing code has been renumbered, see 2008 Ariz. Sess.
Laws, ch. 301, §§ 1-120, effective “from and after December 31, 2008.” Id. § 120. For
ease of reference, and because no changes in the statutes are material to the issues here,
we refer in this decision to the current section numbers rather than those in effect at the
time of the offenses in this case.
2
the amount of aggravating circumstances and whether the amount of mitigating
circumstances is sufficiently substantial to justify the lesser term”); State v. Olmstead,
213 Ariz. 534, ¶ 5, 145 P.3d 631, 632 (App. 2006) (“[E]ven when only mitigating factors
are found, the presumptive term remains the presumptive term unless the court, in its
discretion, determines that the amount and nature of the mitigating circumstances justifies
a lesser term.”).
¶5
Moreover, the aggravating circumstances found by the trial court here are
among those specifically identified in § 13-701(D). See § 13-701(D)(6) (pecuniary gain),
(9) (physical, emotional, financial harm to victim), (13) (victim sixty-five or older), (14)
(fiduciary relationship). A court may consider such factors in aggravation, even if they
are also elements of the underlying offense. State v. Tschilar, 200 Ariz. 427, ¶ 33, 27
P.3d 331, 339 (App. 2001); see also State v. Lee, 189 Ariz. 608, 620, 944 P.2d 1222,
1234 (1997) (“The legislature may establish a sentencing scheme in which an element of
a crime could also be used for enhancement and aggravation purposes.”).
¶6
The trial court did not abuse its discretion in finding Halloum had failed to
state a colorable claim. Accordingly, we grant review, but deny relief.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge
3
