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No. 2 CA-CR 2015-0084-PR (Ariz. Ct. App. Apr. 9, 2015)

No. 2 CA-CR 2015-0084-PR



COUNSEL Mohave County Legal Defender's Office, Kingman Ronald S. Gilleo, Legal Defender Counsel for Petitioner

Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Mohave County
No. CR20080346
The Honorable Steven F. Conn, Judge


COUNSEL Mohave County Legal Defender's Office, Kingman
Ronald S. Gilleo, Legal Defender
Counsel for Petitioner


Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:

¶1 David Collins seeks review of the trial court's order summarily denying his petition for post-conviction relief filed following his resentencing pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Collins has not met his burden of demonstrating such abuse here.

¶2 Collins pled guilty to failure to comply with sex offender registration requirements and stalking. The plea agreement provided that he would receive an aggregate sentence of ten years' imprisonment. The trial court imposed an exceptionally aggravated 6.5-year prison term for failure to comply and a consecutive, exceptionally aggravated, 3.5-year prison term for stalking. See former A.R.S. §§ 13-604(A), 13-702(C), 13-702.01(C). The court found as aggravating factors Collins's "prior record" and the fact he had been on parole when he committed the offenses.

We refer to the sentencing statutes in effect at the time of Collins's 2008 offenses. See 2007 Ariz. Sess. Laws, ch. 248, § 1 (former § 13-604); 2006 Ariz. Sess. Laws, ch. 148, § 1 (former § 13-702), § 2 (former § 13-702.01).

¶3 Collins sought post-conviction relief, arguing that his exceptionally aggravated sentences were illegal because his parole status was not an aggravating factor enumerated in former § 13-702(C), thereby precluding the court from imposing exceptionally aggravated sentences. See State v. Perrin, 222 Ariz. 375, ¶ 9, 214 P.3d 1016, 1019 (App. 2009). Although the trial court denied relief, we granted relief on review, vacated his sentences, and remanded for resentencing. State v. Collins, No. 1 CA-CR 10-0604 PRPC (decision order filed May 15, 2012).

¶4 At resentencing, the trial court imposed an aggravated six-year prison term for Collins's conviction of failure to comply with sex-offender registration requirements, and a consecutive, exceptionally aggravated, 3.75-year prison term for stalking. It found as an aggravating factor for both offenses Collins's previous felony conviction and, as to his stalking conviction, found emotional harm to the victim as an aggravating factor.

¶5 Collins again sought post-conviction relief, arguing the trial court was not permitted to impose a more severe sentence for stalking pursuant to Rule 26.14, Ariz. R. Crim. P., and North Carolina v. Pearce, 395 U.S. 711 (1969), nor find additional aggravating factors at resentencing because it had been required to find all aggravating factors at Collins's first sentencing proceeding. The court summarily denied relief, stating it had, at the first sentencing, "engaged in only the minimum analysis necessary to justify the imposition of the sentence the parties had agreed to" and, thus, "was not precluded from finding aggravating factors at the second sentencing that it did not find at the first." The court also concluded it did not, in fact, impose a more severe sentence because the aggregate 9.75-year sentence was less than the ten-year sentence first imposed. This petition for review followed.

¶6 When a sentence is set aside on appeal or collateral review, "the court may not impose a sentence for the same offense . . . which is more severe than the prior sentence" unless: (1) the court determines, based on the defendant's conduct after the first sentencing, "that the prior sentence is inappropriate"; (2) "the original sentence was unlawful and on remand it is corrected and a lawful sentence imposed"; or (3) "other circumstances exist under which there is no reasonable likelihood that the increase in the sentence is the product of actual vindictiveness by the sentencing judge." Ariz. R. Crim. P. 26.14; Pearce, 395 U.S. at 725 ("Due process of law [] requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.").

¶7 But "due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights." Wasman v. United States, 468 U.S. 559, 568 (1984); see also Alabama v. Smith, 490 U.S. 794, 799 (1989) (explaining that a presumption of vindictiveness arises only when there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness). Accordingly, "[i]f the trial court details the non-vindictive rationale underlying the increased sentence and that rationale supports the increase, no due process violation has occurred." State v. Thomas, 142 Ariz. 201, 203, 688 P.2d 1093, 1095 (App. 1984).

¶8 First, we disagree with Collins that his sentence is more severe—as the trial court noted, his aggregate sentence is shorter than his previous sentence. See State v. Smith, 162 Ariz. 123, 125, 781 P.2d 601, 603 (App. 1989) (analyzing relative sentence severity by considering total sentences). But, in any event, there is no reasonable likelihood that it was a result of vindictiveness. See Thomas, 142 Ariz. at 203, 688 P.2d at 1095. The parties stipulated to a ten-year aggregate prison term, and the court imposed a sentence intended to effectuate that agreement. This non-vindictive rationale plainly supports the increased sentence for stalking.

¶9 Nor is Collins correct that the trial court was not permitted to consider additional aggravating factors at resentencing. When previous sentences are vacated and a case remanded for resentencing, a trial court is "sentencing anew," id. at 204, 688 P.2d at 1096, within the due process constraints described in Rule 26.14. As we have explained, those concerns are not implicated here. And we reject Collins's argument that, because former § 13-702(C) states a court "shall determine" and "shall consider" the enumerated aggravating factors, its decision not to list each possible aggravating factor precludes it from reevaluating those factors upon resentencing. We find no authority suggesting, and no reasoned basis to conclude, that by the use of the word "shall" the legislature intended to require a trial court to find all possible aggravating or mitigating factors or forever lose the authority to reevaluate the evidence related to sentencing in the event of a remand. See HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, ¶ 11, 18 P.3d 155, 158 (App. 2001) ("shall" is directory, not mandatory, "when the legislative purpose can best be carried out by such construction"). This interpretation is particularly warranted where, as here, the parties have agreed to a sentence they believed to be appropriate and the court is attempting to effectuate that agreement within the bounds of the facts and law.

We reject Collins's suggestion that allowing a sentencing court to reconsider aggravating factors on remand would render sentencing challenges "meaningless." If a court finds improper aggravating factors on remand, the defendant has a remedy by Rule 32 or by appeal. We note, however, that it is better practice for a court to clearly identify all aggravating and mitigating factors. See State v. Harrison, 195 Ariz. 1, ¶¶ 11-12, 985 P.2d 486, 489 (1999) ("[A trial court's] articulation of factors will enable an appellate court to determine whether the trial judge has correctly considered the specific aggravating or mitigating circumstances.").

¶10 Although we grant review, we deny relief.