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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         CASEY MARTIN, Petitioner.

                         No. 1 CA-CR 15-0574 PRPC
                              FILED 9-21-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-128626-001
                  The Honorable Cynthia Bailey, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent

Casey Martin, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
                             STATE v. MARTIN
                            Decision of the Court

H O W E, Judge:

¶1             Casey Owen Miller Martin petitions this Court for review
from the dismissal of his petition for post-conviction relief. Martin pleaded
guilty to one count of kidnapping and three counts of attempted sexual
molestation of a child involving minors under the age of 15. After finding
that two aggravating factors—emotional harm to the victim and the
violation of a position of trust—outweighed the mitigating factors, the trial
court imposed a slightly aggravated 19-year flat-time sentence for the
kidnapping conviction and lifetime probation on the remaining three
convictions.

¶2             Martin argues that the trial court improperly applied
“emotional harm to the victim” as a factor to aggravate his sentence
because, he argues, emotional harm is inherent to the crime of kidnapping
if the victim is under 15 years old and therefore is duplicative in violation
of the Fifth Amendment to the United States Constitution.

¶3            Conduct that satisfies an element of a charged offense may
not be used as an aggravating factor unless it “rises to a level beyond that
which is merely necessary to establish an element of the underlying crime.”
State v. Germain, 150 Ariz. 287, 290 (App. 1986). As relevant here, a person
commits kidnapping by restraining another with the intent to inflict a
sexual offense on the victim. A.R.S. § 13–1304(A)(3). If a person commits
kidnapping against a victim under the age of 15, the conviction is
considered a dangerous crime against children subject to consecutive
sentencing. A.R.S. § 13–1304(B). Because emotional harm is not an element
of kidnapping—regardless the victim’s age—the trial court did not err by
applying emotional harm to the victim as a factor to support an aggravated
sentence.

¶4             To the extent that Martin argues that the evidence does not
support a finding of emotional harm to the victim, Martin has waived this
claim because he knowingly, voluntarily, and intelligently pled guilty to
kidnapping and agreed to the sentencing range in the plea agreement. The
trial court conducted a thorough plea colloquy with Martin and advised
him that “. . . you only have a right to post-conviction relief. You have to
file that within 90 [sic] days of your sentencing and you have the right to
have any aggravating factor determined by a jury. In this case, I’ll be
making a determination about what, if any, aggravating factors exist. Do
you understand that?” Martin replied, “[y]es.” Consequently, Martin
waived his right to a trial on the aggravating factors. Cf. State v. Brown, 212
Ariz. 225, 229 ¶¶ 16–18 (2006) (holding that a defendant is entitled to a jury


                                      2
                            STATE v. MARTIN
                           Decision of the Court

trial on the aggravating factors because he expressly reserved that right). At
sentencing, the state alleged two aggravators: emotional harm suffered by
the victim and Martin’s position of power as the victim’s uncle in a position
of trust. The state did not provide witness or expert testimony to evidence
the allegations.

¶5            The supreme court has noted that a “factual basis may be
ascertained from the record including pre-sentence reports, preliminary
hearing reports, admissions of the defendant, and from other sources.” State
v. Varela, 120 Ariz. 596, 598 (1978). Here, the record shows that the court
considered all written materials and verbal recommendations submitted to
the court. When given the opportunity, Martin stated, “I take full
responsibility for all my actions. I was sexually abused as a young boy. I
know how I felt, and I am sorry to cause anyone, especially my own nieces,
to feel this way.” The court’s determination that two aggravating factors
existed was proper and the imposed sentence was permissible.

¶6            Accordingly, we grant review but deny relief.




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




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