                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,

                                        v.

                      KENDRICK BARROW, Petitioner.

                         No. 1 CA-CR 16-0630 PRPC
                              FILED 12-19-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-001644-001
                     The Honorable Erin Otis, Judge

          REVIEW GRANTED; RELIEF GRANTED IN PART


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Petitioner
                            STATE v. BARROW
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James B. Morse Jr. joined.


M c M U R D I E, Judge:

¶1            Kendrick Barrow petitions this court to review the superior
court’s order dismissing his of-right post-conviction relief proceeding,
commenced pursuant to Arizona Rule of Criminal Procedure 32. We have
considered the petition for review and, for the reasons stated, grant review
and grant relief in part.

             FACTS AND PROCEDURAL BACKGROUND

¶2             After rejecting a few plea offers, Barrow pled guilty directly
to the court to aggravated assault, a class 4 felony (Count 1); robbery, a class
4 felony (Count 2); theft, a class 6 felony (Count 3); and two counts of
trafficking in stolen property in the second degree, both class 3 felonies
(Counts 4 and 5). Barrow also admitted to having two prior felony
convictions. The court imposed the following prison sentences: Counts 1
and 2, 4.5 years’ imprisonment, concurrent with each other and with Counts
4 and 5; Count 3, 1.75 years’ imprisonment, consecutive to the other counts;
and Counts 4 and 5, 6.5 years’ imprisonment, concurrent with each other
and with Counts 1 and 2.

¶3            Barrow timely sought post-conviction relief. He argued the
court erred by imposing a consecutive sentence for Count 3 because Counts
1 through 3 constituted a “single act” for sentencing purposes. Barrow also
argued the consecutive sentence violated his due process rights because it
was imposed to penalize him for rejecting the State’s final plea offer. The
court summarily denied the Rule 32 petition, and this timely petition for
review followed. We review for an abuse of discretion. State v. Gutierrez,
229 Ariz. 573, 577, ¶ 19 (2012).

                               DISCUSSION
¶4             Barrow argues the superior court erred as a matter of law by
determining the theft was an act separate from the assault and robbery, thus
justifying a consecutive sentence for Count 3. Specifically, Barrow contends
the court misapplied the test, as set forth in State v. Gordon, 161 Ariz. 308,


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                             STATE v. BARROW
                             Decision of the Court

312 (1989), for determining “whether a constellation of facts constitutes a
single act . . . or multiple acts. . . .” The State maintains that the issue was
waived, and if not waived it is meritless. 1

I.     The Alleged Error Invokes Double Jeopardy Concerns and
       Therefore Is Not Subject to Waiver Under Rule 32.2.

¶5             Arizona Rule of Criminal Procedure 32.2 precludes relief
based on any ground that has been waived. Because Barrow’s claim invokes
double jeopardy analysis, it is not subject to waiver. “[T]he prohibition
against double jeopardy is a fundamental right that is not waived by the
failure to raise it in the trial court.” State v. Millanes, 180 Ariz. 418, 421 (App.
1994); see also State v. Dickinson, 242 Ariz. 120, 123, ¶ 9 (App. 2017).
Therefore, we will review the merits of the claim.

II.    It Is Fundamental Error to Impose a Consecutive Sentence for a
       Lesser-Included Offense.

¶6            The Double Jeopardy Clauses of the United States and
Arizona Constitutions protect criminal defendants from multiple
prosecutions and punishments for the same offense. U.S. Const. amend. V;
Ariz. Const. art. 2, § 10; see also State v. Eagle, 196 Ariz. 188, 190, ¶ 5 (2000)
(federal and Arizona Double Jeopardy Clauses generally provide same
protections). Because greater and lesser-included offenses are considered
the “same offense,” the Double Jeopardy Clauses forbid the imposition of a
separate punishment for a lesser offense when a defendant has been
convicted and sentenced for the greater offense. See Illinois v. Vitale, 447 U.S.
410, 421 (1980); State v. Garcia, 235 Ariz. 627, 629, ¶ 5 (App. 2014); State v.
Chabolla–Hinojosa, 192 Ariz. 360, 362–63, ¶¶ 10–13 (App. 1998).

¶7             Statutorily, the prohibition of multiple punishments for the
same act is codified in Arizona Revised Statutes (“A.R.S.”) section 13-116,
which provides: “An act or omission which is made punishable in different
ways by different sections of the laws may be punished under both, but in
no event may sentences be other than concurrent.” Arizona Courts use the
identical elements test to determine whether a “constellation of facts”
constitutes a single act, which requires concurrent sentences, or multiple
acts, which permit consecutive sentences. Gordon, 161 Ariz. at 312; State v.
Tinghitella, 108 Ariz. 1, 3 (1971).


1     Barrow makes no argument that there was error in running the theft
conviction consecutive to the convictions for trafficking in stolen property.



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                            STATE v. BARROW
                            Decision of the Court

¶8             Unless there is evidence in the record supporting both
robbery and a separate, unrelated theft, the imposition of a consecutive
sentence for a theft conviction to the sentence imposed for a greater charge
of robbery violates double jeopardy protections, as theft is a lesser-included
offense of robbery. See State v. Wall, 212 Ariz. 1, 3–4, ¶ 15 (2006) (theft is a
lesser-included offense of robbery); State v. McNair, 141 Ariz. 475, 482 (1984)
(same); State v. Celaya, 135 Ariz. 248, 252 (1983) (same); State v. Dugan, 125
Ariz. 194, 195 (1980) (same); State v. Yarbrough, 131 Ariz. 70, 72–73 (App.
1981) (same). There is no evidence in the record to support separate robbery
and theft convictions. There was only one alleged taking of property and
that occurred after the assault. The taking of the victim’s property had to
relate to the force necessary for the robbery conviction, or there would not
have been a factual basis for robbery. See A.R.S. § 13-1902(A) (“A person
commits robbery if in the course of taking any property of another from his
person or immediate presence and against his will, such person threatens
or uses force against any person with intent either to coerce surrender of
property or to prevent resistance to such person taking or retaining
property.”); State v. Bishop, 144 Ariz. 521, 524 (1985); Lear v. State, 39 Ariz.
313, 314–15 (1931). Accordingly, the order that Barrow’s sentence for the
theft conviction run consecutive to the sentence imposed on the robbery
conviction must be changed to reflect concurrent sentences. See A.R.S.
§ 13-4037(A) (appellate court authorized to modify an illegal sentence
imposed upon a lawful finding of guilt by the trial court); State v. Gourdin,
156 Ariz. 337, 339 (App. 1988).

III.   Under Gordon, the Superior Court Did Not Abuse Its Discretion
       by Ordering the Sentence for the Theft Conviction to Run
       Consecutive to the Sentence for the Assault.

¶9            The theft conviction was not a lesser offense of the assault.
Therefore, we must apply the second part of the Gordon test: ascertaining
whether the crimes are one act permitting only concurrent sentences, or
multiple acts permitting consecutive sentences. Gordon, 161 Ariz. at 315.
This analysis involves three factors. Id. A court first “consider[s] the facts of
each crime separately, subtracting from the factual transaction the evidence
necessary to convict on the ultimate charge,” and determine whether “the
remaining evidence satisfies the elements of the other crime.” Id. Second, a
court “consider[s] whether, given the entire ‘transaction,’ it was factually
impossible to commit the ultimate crime without also committing the
secondary crime.” Id. Finally, a court “consider[s] whether the defendant’s
conduct in committing the lesser crime caused the victim to suffer an
additional risk of harm beyond that inherent in the ultimate crime.” Id. If
two of the three Gordon factors weigh in favor of viewing the crimes as


                                       4
                            STATE v. BARROW
                            Decision of the Court

separate acts, then consecutive sentences may be permissible under § 13-
116. See State v. Urquidez, 213 Ariz. 50, 53, ¶ 10 (App. 2006) (the trial court
was not required to impose concurrent sentences “[b]ecause two of the
three Gordon factors weigh in favor of viewing the two crimes as multiple
acts”); State v. Siddle, 202 Ariz. 512, 518, ¶ 18 (App. 2002) (consecutive
sentences were permissible because two factors strongly suggested the
defendant committed multiple acts). We review de novo a trial court’s
decision to impose consecutive sentences in accordance with § 13–116.
Urquidez, 213 Ariz. at 52, ¶ 6; Siddle, 202 Ariz. at 517, ¶ 16.

¶10          The superior court found the aggravated assault was the
ultimate charge. After applying the Gordon factors, the court concluded the
theft and aggravated assault constituted separate criminal acts. We find no
error.

¶11           The record reflects Barrow approached the victim and
physically assaulted him, breaking his nose and causing him to lose
consciousness. Barrow then “went through [the victim’s] pockets” and took
the victim’s cell phone and two necklaces. Over the next few days, Barrow
“pawned” the necklaces on two separate occasions.

¶12           Leaving aside the evidence of the aggravated assault, the
remaining evidence satisfies the elements of theft, namely that Barrow,
without lawful authority, knowingly controlled the victim’s property
intending to deprive the victim of it. See A.R.S. § 13-1802(A)(1) (elements of
theft). Secondly, had Barrow not proceeded to take the victim’s property
after he beat him, Barrow could have committed the aggravated assault
without also committing the theft. Finally, Barrow’s conduct in committing
the theft caused the victim an additional risk of harm—loss of property—
beyond the broken nose the victim suffered because of the aggravated
assault. See A.R.S. §§ 13-1203(A)(1), -1204(A)(3) (elements of aggravated
assault). Accordingly, with all Gordon factors weighing in favor of
concluding the theft and aggravated assault were separate acts, the court
did not err by ordering the sentences for those offenses be served
consecutively.

IV.    The Court Did Not Improperly Consider Facts in Reaching Its
       Sentencing Determination.

¶13           On the day set for trial, Barrow appeared at a settlement
conference where the court engaged him and the prosecutor in a lengthy
discussion of the State’s possible plea offer that included a stipulation to a
six to seven-year prison sentence followed by probation. The court recessed



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                           STATE v. BARROW
                           Decision of the Court

until the afternoon so the prosecutor could draft the plea agreement and so
Barrow could get his “ducks in a row.” Barrow failed to return, thereby
rejecting the offer. Consequently, the court revoked Barrow’s release and
set a status conference, where Barrow subsequently pled to the court.

¶14            Barrow contends the court ordered the sentence for theft to be
served consecutively as retribution for Barrow’s refusal of the State’s final
plea offer. We reject this argument because the record is to the contrary. The
court expressly informed the parties that the sentence was not a response to
Barrow’s failure to appear. The court explained the consequence for
Barrow’s failure to appear was “revoking [Barrow’s] release and beyond
that, that incident was not going to in any way impact what [the court]
thought was going to be an appropriate sentence in this case.” No error
occurred.

                              CONCLUSION

¶15          We grant review and grant relief in part. We modify the
sentencing order to reflect that the sentence on Count 3 (theft) shall be
served concurrent with the sentence on Count 2 (robbery). We affirm the
remainder of the sentences imposed.




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




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