STATE v. FOERSTER
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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. ) ) RICHARD DANIEL FOERSTER, ) ) Appellant. ) ) DIVISION ONE FILED: 10/02/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0246 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2009-167593-001 SE CR2010-006143-001 DT (Consolidated) The Honorable Christopher Whitten, Judge AFFIRMED IN PART, MODIFIED AND VACATED IN PART, REMANDED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Division Chief Counsel Joseph T. Maziarz, Section Chief Counsel and Katia Méhu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Richard Daniel Foerster ( Appellant ) appeals his sentence for one of forty felony convictions, arguing that the trial court imposed an illegal sentence for Count 26 by ordering him to serve a life sentence for that count, ostensibly because the court mistakenly classified Count 26 as a class two felony. Appellant maintains Count 26 should be classified as a class three felony punishable by no more than 7.5 years imprisonment, the State confesses error, and we agree. ¶2 A jury convicted Appellant of forty counts, including: two counts of sexual abuse (Counts 11 and 26), one count of molestation of a child, two counts of kidnapping, twenty-three counts of sexual sexual indecency conduct with a exploitation of a minor. with a minor, minor, and one eleven count of public counts of sexual The jury also found each crime was a dangerous crime against children. The trial court sentenced Appellant to fourteen terms of life imprisonment, ten terms of twenty (flat) seventeen years (flat) imprisonment, years served consecutively. imprisonment, and fourteen with all terms terms to of be The court also suspended sentencing as to two counts and ordered Appellant placed on lifetime probation upon his release from prison. ¶3 Appellant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona 2 Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). ¶4 On Counts 11 and 26, Appellant was found guilty of sexual abuse, a class three felony, in violation of A.R.S. § 131404. entry, At sentencing and in its April 4, 2011 sentencing minute however, felonies. the court listed the counts as class two The court sentenced Appellant to lifetime probation for Count 11 and life imprisonment for Count 26. ¶5 11 Appellant notes the court erred by classifying Counts and 26 as class two felonies rather than class three felonies, and argues the court consequently imposed an illegal sentence of life imprisonment for Count 26. Because Appellant did not raise this objection in the trial court, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005); State v. Payne, 223 Ariz. 555, 560, ¶ 13, 225 P.3d 1131, 1136 (App. 2009). The failure to impose a sentence in conformity with mandatory sentencing illegal. State v. Cox, 201 Ariz. 464, 468, 37 P.3d 437, 441 (App. 2002) statutes (citations makes omitted). constitutes fundamental error. the An resulting illegal sentence sentence Id. 1 We cite the current version of the statutes as they appear in Westlaw if no changes material to our decision have since occurred. 3 ¶6 Arizona Revised Statutes § 13-1404(B) classifies sexual abuse as a class five felony unless the victim is under fifteen years of age, in which case sexual abuse is a class three felony punishable pursuant to A.R.S. § 13-705. Sentences for a first offense under § 13-705 range from 2.5 to 7.5 years imprisonment 705(F), (H). and are probation eligible. See A.R.S. § 13- In this case, the jury found Appellant guilty of Count 26 in violation of A.R.S. § 13-1404, and the jury found the victim was under the age of fifteen, making the violation a class three classifying felony. Count 26 Accordingly, the trial court as two felony and a class Appellant to life imprisonment. 2 erred in sentencing We therefore vacate Appellant s sentence with respect to Count 26 and remand to the trial court for resentencing as to that count. In all other respects, Appellant s sentences are affirmed. ______________/S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: __________/S/________________ PETER B. SWANN, Judge ___________/S/________________ JON W. THOMPSON 2 Because the trial court also incorrectly classified Count 11 as a class two felony, we modify the court s April 4, 2011 sentencing minute entry to reflect that Count 11 is a class three felony. See A.R.S. § 13-4036; State v. Ochoa, 189 Ariz. 454, 462, 943 P.2d 814, 822 (App. 1997). 4
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