State v. Herrell

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. NEAL ARTHUR HERRELL, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0898 DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-048902-001 DT The Honorable Maria del Mar Verdin, Judge CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING _________________________________________________________________ Thomas C. Horne, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee D. Jesse Smith Tucson Attorney for Appellant _________________________________________________________________ W I N T H R O P, Judge ¶1 Neal Arthur Herrell ( Defendant ), appeals his convictions and sentences on one count each of possession of marijuana for sale, possession or use of a weapon during the commission of felony weapon a prohibited as paraphernalia. involving drugs, possessor, misconduct and involving possession of a drug Defendant concedes that he did not raise any of these issues before the trial court, but argues on appeal that the court committed fundamental error when it (1) found he had two prior convictions for sentencing purposes; (2) seated a jury of only eight persons instead of twelve; (3) admitted evidence of his prior convictions during the State s case in chief; and (4) imposed consecutive sentences on the counts for possession of marijuana and possession of a weapon during the commission of a felony drug offense. For reasons set forth below, we affirm Defendant s convictions, but remand for resentencing. FACTS AND PROCEDURAL HISTORY 1 ¶2 On August 15, 2008, a Phoenix Police Department Special Assignments Unit ( SWAT team ) as well as several squads of the Phoenix Police Department Neighborhood Enforcement Team arrived at Defendant s house in Phoenix to serve Defendant with a search warrant and execute a search on the residence. officers had knowledge ahead of time that there The were surveillance cameras posted on the outside of the residence that 1 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 monitored the street; accordingly, they took tactical precautions when approaching the house. ¶3 The SWAT team did a knock and announce at the front door of the house, stating Phoenix Police Department, search warrant. When no one inside the house responded, the SWAT team breached an outer black security door at the front entrance. Employing a four-foot battering ram, the officers next attempted to ram through the deadlock on the wooden front double doors, but were unable to do so after eleven attempts because the door was heavily reinforced with steel strips. ¶4 The wooden doors were eventually opened by Woodruf, who rented a trailer in Defendant s backyard. John Woodruf and Defendant were the only two occupants in the western portion of the house when the SWAT team entered. ¶5 activated Once inside video the house, surveillance the monitor. 2 officers The observed house bedrooms, one on the south and one on the north side. had an two The south bedroom had a child s crib in it and appeared to be largely unused. ¶6 The officers located no evidence in it. The north bedroom, however, contained a bed and a desk, and appeared to the officers to be occupied by Defendant. The room was full of clutter and had bunch[es] of bandanas 2 Some of the squares on the monitor were blacked out because the SWAT team disabled at least one of the outside cameras prior to entry. 3 hanging from the ceiling, stuff [lying] out on the floor, [and] soda cans and stuff on the desk. 3 The bedroom, which was not very large, was almost entirely filled by the bed. cell phone and keys were located on the bed. Defendant s On the desk immediately next to the bed was a traffic citation made out to Defendant scales, a along small with a bag fully-loaded of .45 marijuana, wooden a caliber box revolver, containing rolling papers and baggies, additional packaging material, and approximately $225 in cash. Inside a closet in the bedroom, officers located a .22 caliber Ruger rifle and magazine and a .22 caliber Remington rifle, as well as a tin containing ten small bags of marijuana and a pill bottle filled with marijuana. On a gun rack affixed to the wall just outside the north bedroom, officers located five boxes of ammunition for various caliber guns, including a .45 caliber gun, a .22 caliber gun, and a .38 caliber gun. ¶7 On the day he was arrested, Defendant told the officers that he owned the residence and that he and his wife were living there and, specifically, bedroom. In all, the officers grams, slightly less than or Defendant s residence. staying recovered five ounces, in the north approximately of marijuana 130 from To the officers, the amount of drugs and 3 Defendant was wearing a bandana on his head similar to the ones hanging in the bedroom. 4 the amount and type of drug paraphernalia involved, as well as the cameras, the weapons, and the cash located at the house indicated that the owner intended to sell the drugs. ¶8 The State charged Defendant with: Count 1, possession of marijuana for sale in an amount less than two pounds, a Class 4 felony; Count 2, misconduct involving a weapon by knowingly using or possessing a 45 caliber revolver and/or ruger rifle during the commission of possession of marijuana for sale, a Class 4 felony; Count 3, misconduct involving a weapon for knowingly possessing a 45 caliber revolver and/or ruger rifle while being a prohibited possessor, a Class 4 felony; and Count 4, unlawful use or possession of drug paraphernalia ( digital scale, drug paraphernalia, to pack, repack, store, contain, or conceal marijuana ), a Class 6 felony. Defendant denied the charges, and the case went to trial. ¶9 Defendant testified at trial and acknowledged that he owned the residence outright, but maintained that he had not been living there on the day the officers executed the search warrant. According to Defendant, even though he had been present at the house when the police arrived on August 15, he had neither been inside nor slept in the north bedroom for over a week. His wife alone had been occupying the bedroom, and he had been sleeping on the couch in the living room because the two were not getting along. Defendant also testified that his 5 wife owned the .45 caliber revolver. He believed that the rifles belonged to Woodruf and that Woodruf had given the rifles to his wife as collateral for rent on the trailer that was overdue. ¶10 At the conclusion of the trial, the Defendant guilty of all of the offenses as charged. jury found On December 3, 2009, the trial court sentenced Defendant to presumptive ten year prison terms for the Class 4 felonies with three prior felony convictions on each of Counts 1, 2, and 3; it sentenced Defendant to the presumptive 3.75 year prison term for a Class 6 felony with three prior felony convictions on Count 4. The court ordered that the sentences on Counts 1 and 2 be served consecutively to one another and counts 3 and 4 to be served consecutively with count 2 and each other. ¶11 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12120.21(A)(1) (2003), 13-4031 and -4033(A) (2010). 4 DISCUSSION (1) ¶12 Improper Enhancement/Historical Felony Priors Defendant argues that the trial court committed fundamental error when it found that he had three historical 4 Unless otherwise noted, we cite the current version of the applicable statutes when no revisions material to this decision have since occurred. 6 prior felony convictions for sentence enhancement purposes. Defendant maintains that one of his prior felonies, attempted trafficking in stolen property, a Class 4 felony, could not be used because it was more than five years old. argues that felony, the could other not be prior, used criminal as a Defendant also trespass, separate felony a Class because 6 it occurred on the same occasion as his aggravated assault prior. According to Defendant, he therefore only has one prior historical conviction. ¶13 trial error. Defendant court, did therefore, not we raise need his only objections review for before the fundamental State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). In a fundamental error review, the burden lies with Defendant to demonstrate both that fundamental error exists and that the error caused him prejudice. Id. at 567, ¶ 20, 115 P.3d at 607. ¶14 Before we [] engage in a fundamental error analysis, [] we must first find that the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). The improper use of two prior convictions instead of one for purposes of sentence enhancement constitutes fundamental error which may be raised for the first time on appeal. State v. Kelly, 190 Ariz. 532, 534, ¶ 5, 950 P.2d 1153, 1155 (1997). Here, however, the trial court s finding that Defendant had two 7 prior felony convictions for sentencing purposes was proper. Therefore, it committed no error, let alone fundamental error, in sentencing Defendant accordingly. ¶15 A conviction occurs when there is a determination of guilt by verdict, finding, or the acceptance of a plea. State v. Thompson, 200 Ariz. 439, 441, ¶ 7, 27 P.3d 796, 798 (2001). A historical prior felony conviction is [a]ny felony conviction that is a third or more prior felony conviction. A.R.S. § 13105(22)(d) (2010). 5 A trial court must count the prior felony convictions forward, from oldest to newest, when determining the third prior felony conviction. See State v. Decenzo, 199 Ariz. 355, 358, ¶ 9, 18 P.3d 149, 152 (App. 2001). The focus is on the conviction date, not the commission date, of the crime. See State v. Thomas, 219 Ariz. 127, 130, ¶ 12, 194 P.3d 394, 397 (2008) (relying on the defendant s conviction dates of prior felonies in determining properly enhanced). that the defendant s sentence was Further, once a person has been convicted of three prior felony offenses, the third conviction in time can be used to enhance a later sentence, regardless of the passage 5 The definitions contained in A.R.S. § 13-105 for historical prior felony conviction and dangerous offense were not effective until December 31, 2008, several months after the instant crime occurred. Virtually identical definitions were set forth in A.R.S. §§ 8-350 and 13-604 at the time the crime occurred. Accordingly, we cite to the most recent version of § 13-105 throughout this decision. 8 of time since it was committed. State v. Garcia, 189 Ariz. 510, 515, 943 P.2d 870, 875 (App. 1997). ¶16 Defendant s Department of Corrections criminal history summary ( Pen Pak ), in evidence at trial, establishes that Defendant has three prior felony convictions. In chronological order by date of commission these consist of: (1) trafficking in stolen property, a Class 4 felony committed on February 4, 1987; (2) aggravated assault, a Class 3 dangerous felony, committed on November 29, 1988; and (3) criminal trespass in the first degree, a Class 6 felony, committed on November 30, 1988. According to the Pen Pak, in chronological order, the dates of sentencing trespass for and these felonies aggravated are: assault; May and 8, 1989, February criminal 26, 1993, trafficking in stolen property. 6 ¶17 Defendant admitted to the three prior felony convictions at trial and does not contest their existence on appeal. He merely contests whether two of them lawfully could be used by the trial court for sentencing. ¶18 We find they could. The State asserts that the trafficking conviction was his third prior felony conviction in time, regardless of when 6 The trial court s sentencing minute entry and the State s answering brief list the sentencing date for the assault as May 15, 1989, but the date on the Pen Pak lists the same sentencing date, May 8, 1989, for both the criminal trespass and the aggravated assault offenses. 9 it was committed, and qualifies as a historical prior felony conviction under § 13-105(22)(d). In making this assertion, the State relies on the trial court s sentencing minute entry, which notes the date of conviction for this offense as March 8, 1993. The official Pen Pak, however, does not contain any information concerning trafficking offense. the date of conviction for the In fact, what information there is in the record does not support the March 8 conviction date cited by the court and the State. The Pen Pak shows only that Defendant was sentenced for the offense on February 26, 1993. The State s Allegation Pursuant to A.R.S. § 13-702.02 asserts that Defendant was convicted for that crime on August 2, 1988, (emphasis added) but contains no documentation that supports its assertion. Therefore, there is nothing in the record before us that confirms the fact that the trafficking offense is in fact the third conviction in time and, thus, a historical prior felony conviction under A.R.S. § 13-105(22)(d). ¶19 The Pen Pak, however, does establish that Defendant committed the aggravated assault and trespassing offenses at a later time than he committed the trafficking offense. The Pen Pak also establishes that the aggravated assault offense is a dangerous offense. 7 7 as It therefore qualifies as one historical Pursuant to § 13-105(13), a dangerous offense is defined an offense involving the discharge, use or threatening 10 prior felony conviction pursuant to A.R.S. § 13-105(13) and (22)(ii)-(iii) regardless of when it was committed. 8 ¶20 The criminal trespassing offense, which Defendant committed after both the trafficking offense and the aggravated assault offense, would become Defendant s third prior conviction in time to the offenses in the current case. felony As the third prior felony conviction, it would not be subject to time limitations but would qualify as Defendant s second historical prior felony pursuant to A.R.S. § 13-105(22)(d). Thus, whether the third conviction in time was for the trafficking offense, as the State suggests, or the trespass, as appears more likely, Defendant would nonetheless have two prior historical felony convictions for sentencing purposes. ¶21 Defendant maintains that the criminal trespass offense cannot be counted as one of the two historical prior felony convictions because it was committed on the same occasion as the aggravated assault. committed on the same Convictions for two or more offenses occasion may be counted conviction for the purpose of sentencing. as only one See A.R.S. § 13- exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person. 8 Sections 13-105(22)(a)(ii)-(iii) provide that a [h]istorical prior felony conviction means any offense that [i]nvolved the intentional or knowing infliction of serious physical injury or [i]nvolved the use or exhibition of a deadly weapon or dangerous instrument. 11 604(M) (2001); State v. Rasul, 216 Ariz. 491, 496, ¶ 22, 167 P.3d 1286, 1291 (App. 2007). ¶22 In State v. Noble, 152 Ariz. 284, 286, 731 P.2d 1228, 1230 (1987), our supreme court adopted a test for determining whether two offenses were committed on the same occasion. It looked to see whether (1) a Defendant s criminal conduct was continuous and uninterrupted; (2) the criminal conduct was directed to the accomplishment of a single criminal objective rather than multiple criminal objectives; (3) only one person was victimized; brief. Id. and (4) the time period involved was very The Noble test thus includes an analysis of 1) time, 2) place, 3) number of victims, 4) whether the crimes were continuous and uninterrupted, and 5) whether they were directed to the accomplishment of a single criminal objective. State v. Kelly, 190 Ariz. 532, 534, ¶ 6, 950 P.2d 1153, 1155 (1997). There is no all-encompassing test for determining whether two offenses were committed on the same occasion; the determination necessarily turns on the specific facts of this case. Id. at 535, ¶ 9, 950 P.2d at 1156. ¶23 reports attached In the present case, the record contains the police relevant to to both presentence report. the the 1988 State s offenses, copies sentencing of which memorandum and were the The police reports indicate that Defendant committed aggravated assault when, at approximately 9:00 p.m. on 12 November 29, 1988, Defendant became angry and began striking his girlfriend with a strap or a pool cue while the two of them were in Defendant s home. Defendant was angry and accused his girlfriend of being pregnant with a child that was not his. The assault continued until approximately 8:40 a.m. the following morning, November 30, when the victim was able to escape from the house and seek shelter with her neighbor. ¶24 At approximately 8:45 a.m. on November 30, the police arrived at the scene. The girlfriend had fled to a neighbor s house, and the neighbor told police that Defendant arrived at her home demanding to be admitted. He then pulled the front door of her home open, breaking the chain and causing damage to the door knob. Defendant then entered the neighbor s home carrying a pool cue in an attempt to find his girlfriend, who was in the residence hiding from him. Defendant left after the police were called. ¶25 Applying the Noble analysis to the facts of this case, we conclude that the aggravated assault and criminal trespass offenses were not committed on the same occasion. 190 Ariz at 534, ¶ 6, 950 persons were victimized here: assaulted, and the damaged. Second, neighbor, Defendant P.2d at 1155. See Kelly, First, different Defendant s girlfriend, who was whose home assaulted was his broken into girlfriend on and the evening of November 29 and committed the criminal trespass at 13 the neighbor s home sometime before 8:45 a.m. on the morning of November 30. Defendant s Third, home the while aggravated the criminal assault trespass different location, his neighbor s home. were not continuous girlfriend and escaping interrupted and hiding from assault inside occurred at a Further, the incidents uninterrupted the occurred because when Defendant. she Defendant s succeeded Finally, in Defendant s conduct was not directed towards the accomplishment of a single criminal objective. to assault objective his was Defendant s first criminal objective was girlfriend. to break His into second, distinct, his neighbor s home criminal after she refused him entry, which he accomplished by force. ¶26 The aggravated trespass offense were assault not offense committed on and the the same criminal occasion. Therefore, Defendant had three prior felony convictions and the aggravated assault, the trafficking, or the criminal trespass, regardless historical of which prior two the felony trial court convictions. 9 actually used, Defendant were has, therefore, not shown that the trial court committed any error, let alone fundamental error, in sentencing him with two prior felony convictions. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607; Lavers, 168 Ariz. at 385, 814 P.2d at 342. 9 We will affirm the trial court on appeal if the result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). 14 (2) Eight vs. Twelve Person Jury ¶27 Defendant fundamental error argues when that it the trial empanelled an court eight committed person jury because he was exposed to a thirty year sentence at trial. This argument is based on Defendant s contention that, in addition to the consecutive sentences the trial court ordered as to Counts 1 and 2, the trial court could also have ordered that sentences on Counts 2 and 3 be served consecutively. the Had the court done so, he would have received a thirty year sentence instead of the twenty year sentence he did receive. ¶28 In State v. Soliz, 223 Ariz. 116, 120, ¶ 16, 219 P.3d 1045, 1049 (2009), our supreme court held that, when the State fails to request a twelve-person jury, it effectively waives its ability to obtain a sentence of thirty years or more. The trial judge affirms the State s waiver by failing to empanel a twelveperson jury. Id. sentence legally may In such a circumstance, as long as a lesser be imposed for the crimes alleged, a sentence of thirty years or more may no longer be imposed and the twelve-person guarantee of article 2, Section 23 [of the Arizona Constitution] is not triggered. Id. As a matter of law, the defendant in Soliz could not have received a sentence of thirty years or more once the jury of fewer than twelve persons began its deliberations, the supreme court found that 15 defendant could show no error, let alone fundamental error in his case. ¶29 Id. at ¶ 18, 219 P.3d at 1049. In this eight-person jury, case, as to in which Soliz, the the trial State court requested agreed. an As a result, Defendant could not have received a sentence of thirty years or more, as a matter of law, and, in fact, received only an effective twenty year sentence because of the stacking on Counts 1 and 2. Id. As a result, no fundamental error, occurred in this case. error, let alone Id.; see also Lavers, 168 Ariz. at 385, 814 P.2d at 342. (3) Admission of Pen Pack, Severance, Juror #4 ¶30 On appeal, Defendant raises several issues together in a cursory fashion. Defendant concedes that we need only review for fundamental error because he did not raise these issues at trial. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. We find that Defendant s claims have no merit as Defendant has not shown that the trial court committed any error. See Lavers, 168 Ariz. at 385, 814 P.2d at 342. ¶31 Defendant maintains that the trial court erred in admitting the Pen Pack at the beginning of the trial, suggesting that knowledge remainder of of the his prior convictions proceedings. To unduly convict tainted the Defendant for misconduct involving a weapon as a prohibited possessor, the State is required to prove beyond 16 a reasonable doubt that Defendant knowingly possessed a weapon and was a prohibited possessor at the time he possessed it. See A.R.S. § 13- 3102(A)(4) (2010); State v. Cox, 217 Ariz. 353, 357, ¶¶ 23-24, 174 P.3d 265, 269 (2007). A [p]rohibited possessor is defined as any person who has been previously convicted of a felony and whose civil right to possess or carry a gun or firearm has not A.R.S. § 13-3101(A)(7)(b) (2010). 10 been restored. the prior convictions was clearly relevant for Evidence of establishing Defendant s status as a prohibited possessor at the time the search warrant was served. Ariz. R. Evid. 401. The record shows that the charges in the Pen Pack were redacted and the Pen Pack was sanitized in prejudicial effect. 11 status if he wished order to minimize any possible Defendant could have stipulated to his to further minimize prejudice, but chose not to do so. the possibility of The trial court properly admitted the Pen Pack in this case and took appropriate steps to minimize any prejudice. court committed any Defendant has not shown that the trial error, let alone fundamental error, by 10 At the time the instant crimes were committed, a virtually identical definition of prohibited possessor was set forth in A.R.S. § 13-3101(A)(6)(b) (West 2008). 11 At trial, Defendant objected to admission of the Pen Pack based on foundation. An objection to the admission of evidence on one ground does not preserve other issues relating to admission on other grounds. State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993). 17 admitting the Pen Pack into evidence. See Id.; Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. ¶32 sua Defendant also argues that the trial court should have sponte other severed charges for the prohibited trial or prohibited possessor status. held possessor a charge separate from trial Ariz. R. Crim. P. 13.4. the on his The rule, however, does not require the trial court to sever offenses; it simply allows the trial court to do so if, in the trial court s estimation, severance is determination of guilt. necessary to promote Ariz. R. Crim. P. 13.4(a). a fair Nothing in the record here suggests that Defendant did not receive a fair trial due to the trial court s not exercising its discretion to sever the prohibited possessor charge from the remainder of the offenses. Again, Defendant fails to prove that the trial court committed any error, let alone fundamental error. See Lavers, 168 Ariz. at 385, 814 P.2d at 342. ¶33 Defendant also maintains that it was error for the trial court not to have designated Juror #4 as an alternate or not to have granted his request for a mistrial. On appeal, Defendant suggests that while denying the mistrial may have been justified for reasons of judicial economy, the court abused its discretion when it denied his request to designate the juror an alternate. A trial court s decision to strike a juror is subject to an abuse of discretion review, State v. Moore, 222 18 Ariz. 1, 10, ¶ 37, 213 P.3d 150, 159 (2009) (citation omitted), as is its decision to deny a motion for mistrial. State v. Hoskins, 199 Ariz. 127, 142, ¶ 57, 14 P.3d 997, 1012 (2000) (citations omitted). ¶34 At trial, the court explained to the attorneys that Juror #4 had pulled the bailiff aside and expressed a concern stating, [p]erhaps there should be a mistrial because I have heard evidence of prior crimes. It appears from the record that Juror #4 had been a juror five times before. As a result of his prior jury experience, he thought it was inappropriate to share elements of a prior conviction in a case during a case. ¶35 The trial court and counsel met with Juror #4 during which the court and counsel questioned the juror about his comment. The trial court explained that the situation in this case different was certain things. because the State was required to prove At the end of the discussion, Juror #4 assured the parties that he could set aside his concern, his previous experiences as a juror, and listen to the case and decide it fairly and impartially. ¶36 #4 The trial court denied Defendant s request that Juror be designated mistrial. The an trial alternate court or that the stated that it court found declare Juror a #4 s statements that he could set aside his experiences and be fair 19 and impartial in this case persuasive. Under the circumstances, we do not find the trial court s actions to have been an abuse of its discretion in this case. See State v. Chapple, 135 Ariz. 281, 297, n.18, 660 P.2d 1208, 1224, n.18 (1983) (stating that abuse of discretion occurs when reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice ). (4) Equitable Estoppel ¶37 Defendant judicial because, maintains estoppel at the mandate State s that equitable that we request, the vacate estoppel his trial and sentences court imposed consecutive sentences on Counts 1 and 2 despite the fact that the State initially informed sentences would be imposed. Defendant that only concurrent We need not address Defendant s estoppel issues as the State concedes that it was error for the trial court to impose the consecutive sentences on Counts 1 and 2 in this case. 1155 (stating See Kelly, 190 Ariz. at 534, ¶ 5, 950 P.2d at that the imposition of an illegal sentence constitutes fundamental error). ¶38 Our sentencing statutes require the imposition of concurrent sentences for multiple offenses that are the result of the same act. A.R.S. § 13-116 (2010). The analysis set forth by our supreme court in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989), 20 provides the rationale for determining multiple whether the offenses same and, act resulted accordingly, in charges whether sentences are available for the offenses. for consecutive We must consider the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge the one that is at the essence of the factual nexus and that will often be the most serious of the charges. Id. If, after doing so, the remaining evidence satisfies the elements of the other crime, then consecutive permissible under A.R.S. § 13-116. ¶39 Further, in applying sentences may be Id. this analytical framework, we must then consider whether given the entire transaction, it was factually impossible to commit the ultimate crime without also committing the secondary crime. Id. If it was in fact factually impossible to commit the ultimate crime without also committing the secondary crime, then the likelihood increases that a defendant committed a single act. ¶40 Id. commission The State views Count 2, possession of a weapon during of a felony involving drugs, to be the ultimate charge in this case because it includes the facts at the core of the transaction: marijuana and weapons. We agree. Thus, if we subtract the marijuana and the weapons from Count 2, the remaining possession evidence of is marijuana not for sufficient sale. 21 It to is, prove Count therefore, 1, not possible for Defendant to commit the secondary crime, possession of marijuana for sale, without also committing the ultimate crime, possession of a weapon during the drug offense. See Id. The trial court committed fundamental error in imposing consecutive sentences on these counts. ¶41 The State notes that the trial court could have achieved the same sentencing results in this case by imposing consecutive sentences on Count 1 and Count involving weapons as a prohibited possessor. 3 misconduct That is because, under Gordon, the possession of marijuana for sale offense and the prohibited possessor offense do not have any factual elements in common. Without the evidence of the marijuana for Count evidence 1, prohibited sufficient Count 3. sentence possessor Thus, and the remand status State this of the remains urges case weapons to us to and convict to vacate the trial Defendant s Defendant on Defendant s court for resentencing on all counts. ¶42 Based on the record before us, we cannot tell what sentences the trial court would have imposed in this case had it not erroneously concluded that consecutive legally permissible on Counts 1 and 2. sentences were Accordingly, we vacate all the sentences and remand to the trial court for resentencing on all counts in accordance with this decision. See State v. Ojeda, 159 Ariz. 560, 561, 769 P.2d 1006, 1007 (1989) (finding 22 that when a trial judge relies on inappropriate factors during sentencing, and the record is unclear as to what sentence the judge would have otherwise imposed, the case must be remanded for resentencing ). 12 CONCLUSION ¶43 For the foregoing reasons, we affirm Defendant s convictions and remand for resentencing in compliance with this decision. ______________/S/________________ LAWRENCE F. WINTHROP, Judge CONCURRING: ____________/S/________________ PHILIP HALL, Presiding Judge ___________/S/_________________ JON W. THOMPSON, Judge 12 In so doing, we are mindful that the State has also conceded that consecutive sentences are not available under the Gordon analysis for Counts 2 and 3. Gordon, 161 Ariz. at 315, 778 P.2d at 1211. We do not, however, remand for a Donald hearing, as Defendant requests. State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). It is amply clear from the record before us that such a hearing is not called for because we are firmly convinced that Defendant here was not interested in accepting the State s plea offer under any circumstance prior to trial. 23

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