                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    JASON LANARD MEEKS, Appellant.

                             No. 1 CA-CR 16-0121
                               FILED 2-16-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-150750-002
                   The Honorable Dean M. Fink, Judge

      CONVICTION AFFIRMED; SENTENCE VACATED AND
             REMANDED FOR RESENTENCING




                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                            STATE v. MEEKS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1            Jason Lanard Meeks appeals his 17-year sentence resulting
from his conviction for armed robbery, a class 2, dangerous felony. For the
reasons that follow, we affirm Meeks’ conviction, vacate the sentence, and
remand for resentencing.

                FACTS AND PROCEDURAL HISTORY

¶2            On October 16, 2014, the victim, M.S., attempted to purchase
prescription drugs from Meeks. M.S. and Meeks met at a Mesa apartment
complex to exchange cash for drugs. Meeks held M.S. up with a knife, and
robbed him of two cell phones, a wallet, gym shoes, and approximately
$6,000. An accomplice assisted Meeks during the armed robbery.

¶3            The jury convicted Meeks of one count of armed robbery. The
jury also found that three aggravating circumstances were present—the use
of a deadly weapon during the commission of the crime, the presence of an
accomplice, and Meeks committed this offense while on community
supervision.

¶4            At sentencing, the superior court found that Meeks had five
prior felony convictions—four non-dangerous felonies and a class 4
dangerous felony. The superior court considered the aggravating factors
found by the jury, Meeks’ five prior felony convictions, and three mitigating
factors when sentencing Meeks. In its sentencing order, the superior court
found that Meeks was a dangerous, repetitive offender pursuant to Arizona
Revised Statute (“A.R.S.”) § 13-704.1 Because Meeks committed this offense
while on community supervision, the superior court determined that he
could be sentenced to no less than the presumptive prison sentence of 15.75
years. A.R.S. § 13-708(A) (2017). After the superior court found “that the
aggravating circumstances are sufficiently substantial to warrant a


1 Absent material revisions after the date of an alleged offense, we cite a
statute’s current version.


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                            STATE v. MEEKS
                           Decision of the Court

somewhat aggravated sentence,” Meeks was sentenced to a slightly
aggravated 17-year prison sentence.

¶5           Meeks timely appealed his sentence. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) (2017), 13-4031 (2017), 13-4033(A)(1)
(2017) and Article VI, § 9 of the Arizona Constitution.

                               DISCUSSION

¶6            On appeal, Meeks argues that the superior court erred when
it considered the use of a deadly weapon as an aggravating factor because
the use of a deadly weapon is an essential element of armed robbery.2
Meeks additionally asserts that the superior court erred when it sentenced
him as a dangerous, repetitive offender pursuant to A.R.S. § 13-704(D)
(2017). Meeks contends that the superior court’s consideration of the
improper aggravating factor and its erroneous determination that he was a
dangerous, repetitive offender resulted in an illegal sentence that was
fundamentally prejudicial.

¶7            Meeks’ claim, which is raised for the first time on appeal, is
subject to fundamental error review only. State v. Henderson, 210 Ariz. 561,
567, ¶ 19 (2005). Fundamental error occurs only “in those rare cases that
involve error going to the foundation of the case, error that takes [away]
from the defendant a right that is essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.”
Id. (internal quotations and citations omitted). The defendant has the
burden to show that fundamental error occurred and such error caused
prejudice. Id. at 567, ¶ 20. When the superior court considers an improper
aggravating factor in imposing sentence, we will affirm the sentence “only
where the record clearly shows the [superior] court would have reached the
same result even without consideration of the improper factors.” State v.
Ojeda, 159 Ariz. 560, 562 (1989).

                            A. Fundamental Error

¶8            “The failure to impose a sentence in conformity with
mandatory sentencing statutes makes the resulting sentence illegal.” State
v. Carbajal, 184 Ariz. 117, 118 (App. 1995). And we have held that the
“[i]mposition of an illegal sentence constitutes fundamental error.” State v.
Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). As previously stated, the superior

2The State concedes that the superior court erred when it considered the
use of a dangerous weapon as an aggravating factor when sentencing
Meeks for armed robbery. See A.R.S. § 13-1904 (2017).


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                            STATE v. MEEKS
                           Decision of the Court

court sentenced Meeks as a dangerous, repetitive offender. In order to be
classified as a dangerous, repetitive offender, the defendant must be
convicted of a class 2 or 3 dangerous felony and have one historical prior
felony conviction that is a class 1, 2, or 3 dangerous felony. A.R.S. § 13-
704(D). Although Meeks was convicted of a class 2 dangerous felony at
trial, he did not possess the requisite prior felony convictions necessary to
classify him as a dangerous, repetitive offender pursuant to A.R.S. § 13-
704(D). The superior court’s failure to impose a sentence in conformity with
the sentencing statutes, in addition to the use of an improper aggravating
factor, makes Meeks’ sentence illegal and therefore constitutes fundamental
error.

                                 B. Prejudice

¶9            In addition to showing fundamental error, Meeks “must
demonstrate that the error caused him prejudice.” See Henderson, 210 Ariz.
at 568, ¶ 26. Determining whether prejudice exists “involves a fact-
intensive inquiry, and the showing required to establish prejudice therefore
differs from case to case.” Id. Meeks bears the burden of showing that if
the superior court had not improperly considered the use of a deadly
weapon in the commission of the offense and that he was a dangerous,
repetitive offender, the superior court could have reasonably imposed a
lighter sentence. See id.

¶10           At sentencing, the superior court erroneously found that
Meeks was a dangerous, repetitive offender. Additionally, the superior
court improperly considered Meeks’ use of a deadly weapon in the
commission of the armed robbery as an aggravating factor. However, the
superior court did properly consider that Meeks employed an accomplice
during the armed robbery as an aggravating factor. See A.R.S. § 13-
701(D)(4). The superior court then found the following mitigating
circumstances—Meeks’ difficult childhood, his history of substance abuse,
and his strong family support. After considering these aggravating and
mitigating circumstances, the superior court found that the aggravating
circumstances were sufficiently substantial to warrant a “somewhat
aggravated sentence.” Meeks has demonstrated that absent the errors, the
superior court could have imposed a lighter sentence. When it is “unclear
whether the judge would have imposed the same sentences absent the
inappropriate factor, the case must be remanded for resentencing.” State v.
Alvarez, 205 Ariz. 110, 116, ¶ 19 (App. 2003).




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                         STATE v. MEEKS
                        Decision of the Court

                           CONCLUSION

¶11          For the foregoing reasons, we affirm Meeks’ conviction,
vacate the sentence and remand for resentencing consistent with this
decision.




                       AMY M. WOOD • Clerk of the Court
                        FILED: AA




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