                          NOTICE: NOT FOR PUBLICATION.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.

                     JEFFREY PAUL COSTA, Appellant.

                             No. 1 CA-CR 13-0870
                               FILED 1-8-2015


            Appeal from the Superior Court in Mohave County
                           No. CR2011-01313
                 The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. COSTA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.


B R O W N, Judge:

¶1            Jeffrey Paul Costa (“Costa”) appeals his conviction and
sentence for second degree murder. He challenges only the sentence
imposed, asserting that the determination of whether he was on parole at
the time of offense should have been made by a jury. We agree that a jury
should have considered Costa’s parole status; however, because he was not
prejudiced by the error, we affirm.

                              BACKGROUND

¶2            In November 2011, Costa attacked the victim with a “glass
tumbler” in the victim’s home. Leaving the victim motionless on the floor,
Costa took the victim’s car and cell phone and drove to California. A few
days later, upon hearing that the victim had died from his injuries, Costa
surrendered to California police.

¶3           A grand jury indicted Costa on a single count of second
degree murder, a class 1 felony. At trial, Costa admitted he had been
convicted of two prior felonies. A jury convicted Costa as charged and
found that the State had proven the existence of one aggravating factor, the
use of a dangerous instrument.

¶4             Prior to sentencing, the trial court held a hearing on the State’s
allegations that Costa had prior felony convictions and that he committed
the offense while on parole. The court found, as an aggravating factor, that
the State proved beyond a reasonable doubt that Costa was convicted of
robbery in California and that the offense occurred in 2005. Regarding the
allegation that Costa was on parole at the time of the second degree murder,
the court admitted a certified copy of a chronological history or “pen pack”
of Costa’s status in the California Department of Corrections. According to
the State, the pen pack established that Costa had been paroled in December
2009 and remained on parole at the time of the murder because he had a
parole hearing scheduled for November 14, 2011 that was put on hold
because of his arrest in this case. The court then found that the State proved



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                             STATE v. COSTA
                            Decision of the Court

beyond a reasonable doubt that Costa was on parole when he committed
the instant offense.

¶5           After considering additional statements from counsel, the
court found that Costa’s decision to surrender himself to California police
was a mitigating factor. The court then sentenced Costa to an aggravated
sentence of 21 years’ imprisonment, with 723 days credit for time served.
Costa timely appealed.

                                DISCUSSION

¶6            At the time the offense was committed, the presumptive
sentence for a person convicted of second degree murder was 16 calendar
years, the minimum sentence was 10 calendar years, and the maximum
aggravated sentence was 22 calendar years. See Ariz. Rev. Stat. (“A.R.S.”)
§ 13-710(A) (2011). The applicable sentencing statutes provided further that
“[a] person who is convicted of any felony involving a dangerous offense
that is committed while the person is on . . . parole . . . shall be sentenced to
imprisonment for not less that the presumptive sentence . . . and is not
eligible for suspension or commutation or release on any basis until the
sentence imposed is served.” A.R.S. § 13-708(A). Costa argues that the trial
court erred because a jury should have determined his parole status.

¶7             In Apprendi v. New Jersey, the United States Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466,
490 (2000). Providing additional clarification, in June 2013 the Supreme
Court held that “the principle applied in Apprendi applies with equal force
to facts increasing the mandatory minimum.” Alleyne v. United States, __
U.S. __, __, 133 S. Ct. 2151, 2160 (2013).

¶8              Section 13-708(A) increases the statutory mandatory
minimum sentence from a mitigated sentence to the presumptive sentence.
State v. Flores, 201 Ariz. 239, 241, ¶ 8, 33 P.3d 1177, 1179 (App. 2001). Thus,
Costa was entitled to have a jury determine his parole status because it
exposed him to a sentence beyond the statutory minimum. See State v.
Large, 234 Ariz. 274, 279, ¶ 15, 321 P.3d 429, 444 (App. 2014) (“We conclude,
in light of Alleyne, that Large was entitled to have a jury determine his
parole status[.]”). When a defendant fails to object to an alleged error at trial
and preserve the issue for appeal, our review is generally limited to
fundamental error. State v. Henderson, 210 Ariz. 561, 565–68, ¶¶ 11–22, 115
P.3d 601, 605–08 (2005). In Large, this court held that it would review for



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                              STATE v. COSTA
                             Decision of the Court

harmless error because applying fundamental error review would be
“inappropriate” given that the defendant had been convicted and
sentenced before the Supreme Court announced its decision in Alleyne.
Large, 234 Ariz. at 280, ¶ 18, 321 P.3d at 445.

¶9            Although Costa did not raise any argument in the trial court
that his parole status should have been decided by a jury, he contends we
should review for harmless error because Large had not yet been decided
and Alleyne had not yet been “applied” to Arizona. Unlike the situation in
Large, Alleyne had been decided for several months before Costa was tried
or sentenced. Thus, we decline to apply harmless error review in this case.

¶10            To prevail under fundamental error review, Costa must
establish that fundamental error exists and that the error was prejudicial.
Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. An error is fundamental
if a defendant shows “that the error complained of goes to the foundation
of his case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” Id. at 568, ¶ 24, 115
P.3d at 608.

¶11            The State concedes that Costa was entitled to have a jury
determine his parole status and that the error is fundamental. However,
the State asserts no prejudice occurred because the trial court would have
imposed the same sentence even if the statutory minimum had not been
increased due to the parole finding. Costa, on the other hand, argues he
was prejudiced because the pen pack included “numerous undefined terms
and initials” and a reasonable jury could have found that the State failed to
prove beyond a reasonable doubt he was on parole at the time of the
Arizona offense and thus the court could have imposed a less severe
sentence.

¶12            Costa has the burden of establishing prejudice, which is a fact-
intensive inquiry that differs from case to case. See Henderson, 210 Ariz. at
568, ¶ 26, 115 P.3d at 608. Costa must therefore show that a reasonable jury
could have concluded that the State failed to meet its burden of proving he
was on parole at the time he committed the second degree murder. See id.
at 569, ¶ 27, 115 P.3d at 609. Additionally, Costa must show he could have
received a lesser sentence. State v. Trujillo, 227 Ariz. 314, 318, ¶ 16, 257 P.3d
1194, 1198 (App. 2011). When a trial court makes clear at sentencing that
the same sentence would have been given even without the improper
factor, re-sentencing is unnecessary. State v. Munninger, 213 Ariz. 393, 397,
¶ 12, 142 P.3d 701, 705 (App. 2006); see also State v. Powers, 200 Ariz. 123, 129,
¶ 21, 23 P.3d 668, 674 (App. 2001). Mere speculation about what the trial


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                            STATE v. COSTA
                           Decision of the Court

court may have or could have done, without facts in the record to
substantiate the claim, is insufficient to show prejudice under fundamental
error review. Munninger, 213 Ariz. at 397, ¶ 12, 142 P.3d at 705.

¶13            We need not decide whether Costa can meet his burden of
showing a jury would have found differently because he cannot establish a
reasonable probability that the trial court would have given him a lesser
sentence. Under the trial court’s finding that Costa was on parole at the
time of the offense, A.R.S. § 13-708(A) required that the court impose a
sentence of not less than 16 calendar years, the presumptive sentence for
second degree murder in 2011. However, because the trial judge was
seemingly concerned about whether the State met its burden of proving the
parole allegation, the judge stated: “I can state categorically that it would
have made absolutely no difference to my analysis in this case, because I
would not have imposed a mitigated sentence even if I could.” The judge
also explained that regardless of Costa’s parole status, Costa would be
required to “serve every day of the sentence that is imposed” pursuant to
A.R.S. § 13-710(A). The judge then found that “the aggravating factors
control in this case” and announced the sentence of 21 years’ imprisonment.

¶14            Because the record unambiguously demonstrates that Costa
would have received the same aggravated sentence with or without the
court’s error, he cannot meet his burden of establishing he was prejudiced
by the error in his sentencing procedure. See State v. Ojeda, 159 Ariz. 560,
562, 769 P.2d 1006, 1008 (1989) (holding that when one or more of the trial
court’s findings are set aside, the sentence should be set aside “unless the
record clearly shows the trial judge would have made the same disposition
even without consideration of the violations set aside on appeal”).

                              CONCLUSION

¶15          For the foregoing reasons, we affirm Costa’s conviction and
sentence.




                                  :ama



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