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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                            JOSE TAPIA, Appellant.

                             No. 1 CA-CR 18-0530
                               FILED 7-30-2019


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201700341
                 The Honorable David M. Haws, Judge

            CONVICTION AFFIRMED, SENTENCE VACATED
                        AND REMANDED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Yuma County Public Defender's Office, Yuma
By Eugene Marquez
Counsel for Appellant
                            STATE v. TAPIA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


J O H N S E N, Judge:

¶1            Jose Tapia was convicted of manslaughter, a dangerous Class
2 felony, and the superior court sentenced him to 15 years in prison. On
appeal, Tapia does not challenge his conviction, but argues the court erred
in imposing sentence. We conclude his sentence was illegal and remand for
resentencing.

                FACTS AND PROCEDURAL HISTORY

¶2             Tapia was charged with second-degree murder. A jury
convicted him of the lesser-included offense of manslaughter, a dangerous
offense. Although the State had filed a notice of intent to prove two
aggravating factors and an amended indictment alleging Tapia had a
"historical dangerous prior felony conviction," the jury was not asked to
determine any aggravating factors. The court set a sentencing hearing for
26 days after the verdict. At the hearing, the court stated it intended to
sentence Tapia to the maximum prison term, apparently based on Tapia's
criminal history. After Tapia asserted the State had not offered evidence to
prove a prior conviction, the court continued the sentencing for one week.
A few days later, the court sua sponte continued the sentencing two
additional days, pushing the sentencing to 35 days after the guilty verdict.
The court also notified the parties that it would allow the State to prove
Tapia's prior felony conviction. At the rescheduled sentencing hearing, the
court found, based on the State's evidence, that Tapia had been convicted
of two felonies in California. It then sentenced Tapia to an aggravated
sentence of 15 years' imprisonment.

¶3            Tapia timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised




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                             STATE v. TAPIA
                            Decision of the Court

Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019), and
-4033(A)(1) (2019).1

                               DISCUSSION

¶4             Tapia argues we should vacate and remand his sentence
because the superior court continued his sentencing without good cause.
See State v. Burkett, 179 Ariz. 109, 114 (App. 1993) (speedy-trial right extends
to sentencing). Tapia also argues the court violated the separation of
powers doctrine when it "ordered the prosecutor to present evidence of the
prior conviction."

¶5             We need not address Tapia's arguments, however, because
we conclude the court committed fundamental error when it imposed an
aggravated sentence in the absence of a proper aggravating circumstance.
Although Tapia did not raise this issue in his brief, an illegal sentence
constitutes fundamental error, and "we will not ignore [fundamental error]
when we find it." State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007); see
State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002).

¶6            Under A.R.S. § 13-704(A) (2019), the presumptive sentence for
a dangerous Class 2 felony is 10.5 years. The superior court here had the
power to impose a sentence that exceeded the presumptive term only if
aggravating circumstances were found. A.R.S. §§ 13-701(C) (2019), -704 (H).
The jury did not find any aggravating circumstances, and Tapia did not
admit to any. See A.R.S. § 13-701(C) (aggravating circumstances must be
found by trier of fact or admitted by defendant). Instead, the superior court
found that Tapia had committed two prior felonies that constituted
aggravating circumstances. See A.R.S. § 13-701(D)(11).

¶7            The applicable statute, however, allows a prior felony as an
aggravating circumstance only if the conviction occurred "within the ten
years immediately preceding the date of the offense." Id. As the State
concedes on appeal, Tapia was convicted of the two felonies more than 10
years preceding the current offense. The State suggests the superior court
also may have relied on the "catch-all" of A.R.S. § 13-701(D)(27) in imposing
an aggravated sentence, but, as it acknowledges, the court could not impose
an aggravated sentence based on the "catch-all" in the absence of an
enumerated aggravating circumstance under § 13-701(D). See State v.
Schmidt, 220 Ariz. 563, 566, ¶¶ 10-11 (2009). Accordingly, the superior court


1      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


                                       3
                            STATE v. TAPIA
                           Decision of the Court

lacked the power to impose a sentence greater than the presumptive term
of 10.5 years. A.R.S. § 13-704(A).

                              CONCLUSION

¶8           Tapia's conviction is affirmed, but his sentence is vacated and
remanded for further proceedings. Because no permissible sentencing
enhancers or aggravating circumstances were found, the court must impose
a sentence no greater than the presumptive term under A.R.S. § 13-704(A).




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




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