                          NOTICE: NOT FOR PUBLICATION.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.

                      RICHARD STEVEN CAMPBELL,
                               Appellant.

                             No. 1 CA-CR 13-0631
                               FILED 12-04-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-009547-003
                The Honorable Peter C. Reinstein, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

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



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1            Richard Steven Campbell appeals from his convictions and
sentences on multiple felony offenses. Campbell specifically challenges his
sentence for one count of aggravated assault. Because we find no
fundamental, prejudicial error, we affirm Campbell’s convictions and
sentences. However, we modify the trial court’s sentencing minute entry
to accurately reflect the charges for which Campbell was sentenced.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Campbell was indicted with two co-defendants for eleven
felony counts. The charges resulted from an incident in which Campbell’s
co-defendants entered a Phoenix apartment, robbed several people at
gunpoint, and robbed another person in the apartment complex parking
lot. Campbell was identified as the “getaway driver” for his co-defendants.
Although Campbell did not enter the apartment, evidence indicated that
Campbell pointed a gun at the victim who was robbed in the parking lot.

¶3             A jury convicted Campbell of two counts of armed robbery,
class 2 felonies, and four counts of aggravated assault, class 3 felonies. The
jury made a “dangerous” finding and found that the State proved
aggravating circumstances for only one count of aggravated assault (Count
11). The trial court sentenced Campbell to a presumptive term of 7.5 years’
imprisonment for Count 11, concurrent presumptive terms of 5 years for
each armed robbery count, and concurrent presumptive terms of 3.5 years
for the remaining aggravated assault counts. This timely appeal followed
and 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,
13-4031, and -4033.A.1 (West 2014).1




1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                           STATE v. CAMPBELL
                           Decision of the Court

                               DISCUSSION

I.     The Trial Court’s Consideration of Aggravating and Mitigating
       Circumstances

       A.     Use of a Deadly Weapon as an Aggravating Circumstance

¶4           Campbell argues that the trial court improperly weighed
aggravating circumstances in determining his Count 11 sentence.
Campbell contends that “use of a weapon was both an essential element of
[aggravated assault] and used to enhance punishment[.]”

¶5             Because Campbell did not raise the issue at sentencing, we
review only for fundamental error. See State v. Trujillo, 227 Ariz. 314, 317, ¶
9, 257 P.3d 1194, 1197 (App. 2011). Fundamental error is “error going to the
foundation of the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005) (internal quotations and citations omitted).
Generally, fundamental error occurs when one of the defendant’s
constitutional rights is violated or if an illegal sentence is imposed. See id.
at 568, ¶ 25, 115 P.3d at 608. To prevail on a fundamental error claim, the
defendant must show both that fundamental error occurred and that such
error was prejudicial to the defense. Id. at 567, ¶ 20, 115 P.3d at 607.

¶6            The jury found and the trial court considered several
aggravating circumstances for Count 11, including the infliction or
threatened infliction of serious physical injury, accomplice liability,
emotional harm to the victim, and the use of a deadly weapon. The jury
also found that Count 11 was a dangerous offense. Campbell argues, and
the State concedes, that the trial court’s consideration of the use of a deadly
weapon as an aggravating circumstance in sentencing was improper
because in this case the use of a weapon was “an essential element of
conviction.” See A.R.S. § 13-701.D.2 (West 2014); see also A.R.S. § 13-
1204.A.2. (West 2014) (identifying use of a deadly weapon as an element of
aggravated assault).2


2       Although Campbell does not raise the argument, the trial court
likewise should not have considered the infliction or threatened infliction
of serious physical injury as an aggravating circumstance because, in this
case, it was an essential element of Count 11, aggravated assault. See A.R.S.
§§ 13-701.D.1 and -1204.A.1.



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                           STATE v. CAMPBELL
                           Decision of the Court

¶7              Having identified error, we turn to whether the error was
fundamental and prejudicial. Campbell maintains that “[b]ecause the trial
court improperly considered . . . use of a weapon” as an aggravating
circumstance, it committed fundamental error. We conclude, however, that
despite improperly considering elements of the offense as aggravating
circumstances, the trial court neither improperly aggravated Campbell’s
sentence, nor has Campbell shown prejudice. Although the trial court
“could have reasonably imposed a lighter sentence” without improperly
considering the use of a weapon as an aggravating circumstance, the trial
court could have handed down the same sentence without the State proving
any aggravating circumstances. Campbell therefore cannot “demonstrate
prejudice merely by speculating that he would have received a lesser
sentence absent the error.” Trujillo, 227 Ariz. at 318, ¶ 17, 257 P.3d at 1198
(internal citations omitted).

¶8             Campbell argues that his age, lesser role in the “criminal
scheme,” and the fact that these were his first convictions substantially
mitigated the proven aggravating circumstances. Further, he argues that
that two of the proven aggravating circumstances should have received
“minimal weight” in the trial court’s sentencing consideration. Campbell
concludes that the trial court improperly weighed these circumstances,
which resulted in a sentence “to the presumptive term when an appropriate
weighing may have resulted in a lesser sentence.” Campbell’s conclusion
is unwarranted, however, because Campbell’s sentence was appropriate
even with the existence of mitigating circumstances. The jury’s finding and
trial court’s consideration of additional aggravating circumstances3 apart
from use of a deadly weapon exposed Campbell to a possible maximum
sentence as high as fifteen years, which the trial court did not impose. See
A.R.S. §§ 13-701.C and -704.A (West 2014). Given these facts and, contrary
to Campbell’s proffered inference about how the trial court weighed
aggravating and mitigating circumstances, it is possible to infer that
imposing the presumptive sentence was, in fact, a lenient sentence in this
case.4 But to adopt either inference would be speculative, and on this

3      The trial court also considered that Campbell was convicted of
multiple offenses. See State v. Martinez, 210 Ariz. 578, 583, ¶ 16, 115 P.3d
618, 623 (2005) (affirming trial courts’ power to “consider additional factors
in determining what sentence to impose, so long as the sentence falls within
the established range”).

4    Such an inference is arguably more supported by the record than
Campbell’s argument about how the trial court weighed circumstances,



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                           STATE v. CAMPBELL
                           Decision of the Court

record, Campbell has not shown that we can do more than speculate “that
he would have received a lesser sentence absent the error.” See Trujillo, 227
Ariz. at 318, ¶ 16, 257 P.3d at 1198 (internal quotations and citations
omitted). Accordingly, Campbell has not shown prejudice, and we will not
disturb a sentence imposed that is properly within the statutory limits. See
State v. Ward, 200 Ariz. 387, 389, ¶ 5, 26 P.3d 1158, 1160 (App. 2001).

       B.     Dangerousness Finding

¶9             Campbell also argues that the trial court erred by considering
“‘the dangerous nature of the felony’ as an aggravating factor.” Because
the trial court enhanced Campbell’s sentence for Count 11 as a dangerous
offense under A.R.S. § 13-704.A., the dangerous nature of the offense may
not also be considered an aggravating circumstance. A.R.S. § 13-701.D.2.

¶10           Here, Campbell contends that the trial court doubly
considered dangerousness as both a sentencing enhancement and an
aggravating circumstance. Although the trial court referred at sentencing
to the dangerous nature of Count 11 as an aggravating circumstance, the
remainder of the record indicates that the trial court did not consider
dangerousness as both a sentencing enhancement and an aggravating
circumstance. The presentence report, for example, lists the dangerous
finding separately from the aggravating circumstances, and during
sentencing the State corrected the court that the dangerous finding “is
actually an enhancement . . . [and] isn’t really an aggravator.” Additionally,
even if the trial court erred by doubly considering dangerousness as
Campbell contends, Campbell has not shown prejudice. The presumptive
sentence of 7.5 years is consistent with using the jury’s finding of
dangerousness to enhance Campbell’s sentence on Count 11 under A.R.S. §
13-704.A. Nothing in the record suggests the trial court issued a
presumptive sentence, instead of a mitigated or minimum sentence,
because dangerousness was considered as both an enhancement and an
aggravating circumstance. We therefore presume that the trial court “made
proper use” of the dangerous finding and did not err. See State v. Styers, 177
Ariz. 104, 116, 865 P.2d 765, 777 (1993).

II.    Modifying the Sentencing Minute Entry

¶11          The parties agree that the trial court erred by referencing
Count 5 in the sentencing minute entry. Count 5 was dismissed during


considering that the presentence report recommended “[a] term greater
than the presumptive.”


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                           STATE v. CAMPBELL
                           Decision of the Court

trial. When the trial court makes an “inadvertent error in the sentencing
minute entry[,] [it] must be corrected.” State v. Sands, 145 Ariz. 269, 278, 700
P.2d 1369, 1378 (App. 1985); see also State v. Bowles, 173 Ariz. 214, 216, 841
P.2d 209, 211 (App. 1992) (holding that “when there is a discrepancy
between the oral pronouncement of sentence and the minute entry,” it may
be resolved by referring to the record). Accordingly, we modify the
sentencing minute entry to reference Count 6 instead of Count 5 where
appropriate. See A.R.S. § 13-4037.A (West 2014).

                               CONCLUSION

¶12           We affirm Campbell’s convictions and sentences as modified.




                                 :gsh




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