                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                       KAREN DAGENAIS, Appellant.

                             No. 1 CA-CR 14-0204
                               FILED 3-5-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-002710-001
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                   REMANDED FOR RESENTENCING


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                            STATE v. DAGENAIS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1            Karen Dagenais appeals from her convictions and resulting
sentences. She challenges only the sentences imposed, arguing the trial
court erroneously considered her lack of remorse as an aggravating factor.
For the following reasons, we remand for resentencing.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Dagenais was indicted for one count of attempted fraudulent
schemes and artifices, a class 3 felony, one count of computer tampering, a
class 5 felony, one count of forgery, a class 4 felony, and five counts of theft
by extortion, class 4 felonies. A jury found her guilty of all eight counts.

¶3           At sentencing, the trial court ultimately found the mitigating
factors outweighed the aggravating factors, and sentenced Dagenais to less
than the presumptive:

       In this matter, the Court finds that as to Count 1 probation is
       appropriate; that the defendant can benefit from the services
       available on probation.

               As to Counts 2 through 8 that a prison term is
       appropriate. . . . There are multiple crimes committed. And
       when I weigh aggravating and mitigating circumstances as to
       the imposition of prison, the Court finds that mitigating
       circumstances include the fact that the defendant has a clean
       criminal history. This is her first -- these are her first felony
       convictions; that she has a very, very minimum contact with
       the law in the past. The Court also considers as a mitigating
       factor that the defendant has, through her presentation at the
       trial and through what I have seen in her presentence report,
       that the defendant presents with a need for therapy for
       emotional and other mental health problems; that those needs
       are a mitigating factor even though the Court does not believe
       that they excuse her behavior or are a reason for the Court not


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                             STATE v. DAGENAIS
                             Decision of the Court

       to find that she had the intent necessary for all these crimes. I
       do believe she had the intent.

             Finally, as to mitigation, the defendant has community
       support, as demonstrated in the letters she has submitted.

               Against those mitigating factors, the Court [weighs]
       the aggravating factors of the emotional harm to the victim as
       testified to in court; that these were committed for pecuniary
       gain. And also when I reviewed the defendant’s statements
       in the presentence report and her testimony at trial, there is a
       lack of remorse for the defendant.

              In weighing the factors, the Court finds that the
       mitigating factors outweigh the aggravating factors and call
       for a prison sentence of less than the presumptive.

Dagenais was placed on two years’ supervised probation for her conviction
of attempted fraudulent schemes and artifices, and was sentenced to .75
years’ imprisonment for computer tampering and 1.5 years’ imprisonment
for forgery and each count of theft by extortion. The prison terms were
ordered to be served concurrently.

¶4            Dagenais timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-
4033(A)(1) (2010).

                  ISSUE AND STANDARD OF REVIEW

¶5             Dagenais argues that the trial court erred in considering her
lack of remorse as an aggravating factor. “A trial court has broad discretion
to determine the appropriate penalty to impose upon conviction, and we
will not disturb a sentence that is within statutory limits . . . unless it clearly
appears that the court abused its discretion.” State v. Cazares, 205 Ariz. 425,
427, ¶ 6, 72 P.3d 355, 357 (App. 2003). “We will find an abuse of discretion
only if the court acted arbitrarily or capriciously or failed to adequately
investigate the facts relevant to sentencing.” Id.

¶6            The State argues that because Dagenais failed to object below,
she has waived her objection absent a showing of fundamental error and
prejudice. See State v. Trujillo, 227 Ariz. 314, 317, ¶ 9, 257 P.3d 1194, 1197
(App. 2011) (reviewing the trial court’s consideration of lack of remorse for
fundamental error because the appellant failed to raise the issue below);


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                           STATE v. DAGENAIS
                           Decision of the Court

State v. Avila, 217 Ariz. 97, 100, ¶ 12, 170 P.3d 706, 709 (App. 2007) (“[T]he
burden of persuasion borne by a defendant in fundamental error review
does not permit him to remain silent at trial and reserve the ‘hole card’ of a
later appeal on a matter that was curable at trial, and then seek appellate
reversal.”). “An objection is sufficiently made if it provides the judge with
an opportunity to provide a remedy.” State v. Fulminante, 193 Ariz. 485,
503, ¶ 64, 975 P.2d 75, 93 (1999). Here, at the end of sentencing, the
prosecutor raised the issue with the court:

               The only thing I want to say, Judge, is in the mitigating
       and aggravating factors that you noted lack of remorse as an
       aggravating factor, there could be some legal issues with
       that[.]

As a result, the court was given the chance to address the issue and provide
relief. The court responded, stating that it believed remorse could be
considered:

              I understand what you are saying, but I don’t think
       there are. And once the defendant has presented mitigating
       factors, then I think remorse can be considered, and especially
       since in my weighing I find that it’s more -- weighs more
       towards mitigation than aggravation. But frankly, after
       hearing all of the evidence at trial and seeing what she said to
       the presentence writer,[1] there isn’t remorse, and I wanted
       that noted on the record.

Based on this record, because the trial court addressed the issue before
Dagenais had a chance to join in the objection, “it would have been futile to
make the same objection that had just been rejected.” People v. Gamache, 227
P.3d 342, 370 (Cal. 2010). Accordingly, we review the issue for an abuse of
discretion rather than for fundamental error.

                               DISCUSSION

¶7            The privilege against self-incrimination is guaranteed by
Article 2, Section 10, of the Arizona Constitution and the Fifth and
Fourteenth Amendments to the United States Constitution. Flagler v.
Derickson, 134 Ariz. 229, 231, 655 P.2d 349, 351 (1982); see also U.S. Const.

1 The presentence investigation report provides that Dagenais “stated she
is innocent and plans on appealing her conviction. She would like no
further action to be taken; however, she is willing to comply with probation
if necessary.”


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                            STATE v. DAGENAIS
                            Decision of the Court

amend. V (“No person shall . . . be compelled in any criminal case to be a
witness against himself . . . .”); Ariz. Const. art. 2, § 10 (“No person shall be
compelled in any criminal case to give evidence against himself . . . .”). “A
defendant is guilty when convicted and if he chooses not to publicly admit
his guilt, that is irrelevant to a sentencing determination.” State v. Carriger,
143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984). In contrast, “[i]f a defendant
admits his guilt, this can be used as additional mitigating evidence,
provided the defendant is truly remorseful for his crime.” Id.; see also State
v. Hardwick, 183 Ariz. 649, 656, 905 P.2d 1384, 1391 (App. 1995) (“Remorse
can be a mitigating factor with the defendant having the burden of proof by
a preponderance of the evidence.”). However, “[a]s contrition or remorse
necessarily imply guilt, it would be irrational or disingenuous to expect or
require one who maintains his innocence to express contrition or remorse.”
Hardwick, 183 Ariz. at 656, 905 P.2d at 1391. As a result, a trial court’s use
of a defendant’s decision not to admit guilt to aggravate a sentence “offends
the Fifth Amendment privilege against self-incrimination.” Id.; see also
Trujillo, 227 Ariz. at 318, ¶ 15, 257 P.3d at 1198 (“[W]e conclude that in
considering [the defendant’s] lack of remorse and his failure to admit guilt,
the trial court deprived him of a right essential to his defense.”); State v.
Tinajero, 188 Ariz. 350, 357, 935 P.2d 928, 935 (App. 1997) (remanding
because trial court considered lack of remorse as aggravator), disapproved of
on other grounds by State v. Powers, 200 Ariz. 363, 364, ¶ 10, 26 P.3d 1134, 1135
(2001). Based on the guidance provided by Hardwick, Tinajero, and Trujillo,
we conclude that the trial court erred in considering Dagenais’ lack of
remorse as an aggravating factor.

¶8            The State argues that although a court generally may not
consider a defendant’s lack of remorse as an aggravating factor, Dagenais
waived her Fifth Amendment privilege when she testified at trial. The State
relies on several cases to support its assertion, but we find those cases
distinguishable because they address a defendant’s truthfulness rather than
an absence of remorse. See U.S. v. Dunnigan, 507 U.S. 87, 97 (1993) (“It is
rational for a sentencing authority to conclude that a defendant who
commits a crime and then perjures herself in an unlawful attempt to avoid
responsibility is more threatening to society and less deserving of leniency
than a defendant who does not so defy the trial process.”), abrogated on other
grounds by U.S. v. Wells, 519 U.S. 482 (1997); U.S. v. Grayson, 438 U.S. 41, 50
(1978) (“A defendant’s truthfulness or mendacity while testifying on his
own behalf, almost without exception, has been deemed probative of his
attitudes toward society and prospects for rehabilitation and hence relevant
to sentencing.”), superseded by statute as stated in Barber v. Thomas, 560 U.S.
474 (2010); State v. McDonald, 156 Ariz. 260, 263-64, 751 P.2d 576, 579-80
(App. 1987) (finding it permissible to aggravate a sentence based on


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                            STATE v. DAGENAIS
                            Decision of the Court

perjurious testimony); State v. Sungia, 145 Ariz. 389, 395, 701 P.2d 1197
(App. 1985) (“The trial court . . . may consider all evidence and information
presented at all stages of the trial, together with all probation and
presentence reports, or factors like the general moral character of the
defendant.” (internal citations omitted)). Here, during the sentencing
hearing, the trial court specifically referred to Dagenais’ “lack of remorse”
and not the truthfulness of her testimony. See supra ¶ 6.

¶9              The State further argues the sentence should be affirmed
because the trial court did not, in fact, aggravate Dagenais’ sentence.
However, as we noted in State v. Pena, even if the court had imposed a
mitigated sentence, “that does not necessarily mean that the consideration
of [an] improper aggravating factor[] was harmless error.” 209 Ariz. 503,
509, ¶ 22, 104 P.3d 873, 879 (App. 2005). “For approximately a quarter of a
century, Arizona’s statutory scheme has prescribed sentencing ranges for
different classes of offenses, with multiple factors determining the range
that applies.” State v. Brown, 205 Ariz. 325, 332-33, ¶ 25, 70 P.3d 454, 461-62
(App. 2003), vacated on other grounds, 209 Ariz. 200, 203, ¶ 13, 99 P.3d 15, 18
(2004). The sentence imposed by the trial judge is selected “from a range of
punishments . . . based on a balancing of various aggravating and
mitigating factors of various weight.” Pena, 209 Ariz. at 509, ¶ 22, 104 P.3d
at 879. “The reversal of a single aggravating factor may mean that ‘the
sentencing calculus . . . has changed.’” Id. at ¶ 23 (quoting State v. Lehr, 205
Ariz. 107, 109, ¶ 8, 67 P.3d 703, 705 (2003)). Unless it is clear that the same
sentence would have been imposed regardless of the sentencing error, we
cannot find that the error was harmless. Id. at ¶ 24. Because we cannot say
with certainty that the sentencing judge would have mitigated the sentence
to the same degree absent consideration of the improperly aggravated
factor, the case must be remanded for resentencing. See id. at ¶¶ 24-25.
“Our conclusion does not preclude the reimposition of [the same] sentences
if the trial judge, in conscientiously balancing the factors [she] may properly
consider, concludes that such sentences are indicated.” State v. Kerekes, 138
Ariz. 235, 238, 673 P.2d 979, 982 (App. 1983); see also State v. Munninger, 213
Ariz. 393, 400, ¶ 30, 142 P.3d 701, 708 (2006) (Lankford, J., dissenting in part)
(“We should instead remand to allow the trial court to impose the sentence
that it determines to be justified by the properly considered sentencing
facts. If that sentence differs, we have done justice to the defendant and
upheld the trial court’s discretion. If the sentence remains the same, we




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                           STATE v. DAGENAIS
                           Decision of the Court

have done no more mischief than require that the sentencing judge think
twice about the severity of punishment.”).2

                              CONCLUSION

¶10           For the foregoing reasons, we remand for resentencing.




                                   :ama




2Relying on State v. Ruggiero, 211 Ariz. 262, 269 n.6, ¶ 29, 120 P.3d 690, 697
n.6 (App. 2005), the State also argues that Dagenais failed to show any
resulting prejudice. In Ruggiero, although the trial court erred in
considering lack of remorse as an aggravating factor, the court found the
defendant did not establish prejudice in light of the trial court’s
consideration of additional proper aggravating factors. 211 Ariz. at 269 n.6,
¶ 29, 120 P.3d at 697 n.6. We find Ruggiero to be distinguishable because
the defendant failed to object below and the claim was reviewed for
fundamental error. Id. Additionally, Ruggiero reached that conclusion
relying only upon State v. Henderson, 210 Ariz. 561, 569, ¶ 28, 115 P.3d 601,
609 (2005). 211 Ariz. at 268, ¶ 28, 120 P.3d at 696. In Henderson, the court
explained that for purposes of fundamental error review, if a judge relies
upon aggravating factors that only a jury could have found, then the
defendant must show that a jury could have reached a different conclusion
as to any or all aggravators than the judge. 210 Ariz. at 569, ¶ 28, 115 P.3d
at 609. The defendant’s sentence can only be affirmed if there are remaining
aggravators appropriately found by the judge, or if it is shown that a jury
could not have come to a different conclusion regarding the existence of the
aggravators. Id. Here, as explained above, we are not dealing with
fundamental error analysis nor an analysis to determine if a reasonable jury
could have found an aggravator. Rather, unless it is clear that the same
sentence would have been imposed regardless of the sentencing error, we
cannot find that the error was harmless. See supra ¶ 9.


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