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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              ROBERT LAWSON CARNOCHAN, Appellant.

                             No. 1 CA-CR 17-0200
                               FILED 3-20-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201600562
            The Honorable Billy K. Sipe, Judge Pro Tempore

              AFFIRMED IN PART; REMANDED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.


C R U Z, Judge:

¶1            Robert Lawson Carnochan challenges his sentences on the
grounds the superior court erred when it sentenced him to consecutive
sentences for similar conduct leading to two charges and improperly
sentenced him to a Class 4 felony range when his conviction was for a Class
6 felony. For the following reason, we affirm Carnochan’s convictions and
remand for resentencing in accordance with this decision.

              FACTUAL AND PROCEDURAL HISTORY2

¶2            Carnochan was indicted on five counts of misconduct
involving weapons, as a Class 4 felony, and one count of misconduct
involving weapons, as a Class 6 felony. Count 5 and 6 involved possession
of a singular .380 handgun; count 5 was charged as a Class 4 felony for
possession of the weapon as a prohibited possessor, and count 6 was
charged as a Class 6 felony for possession of a defaced weapon.

¶3           After trial, Carnochan was found guilty on all six counts.
Carnochan was sentenced to concurrent 2.25-year prison terms for counts 1
through 5 and to a consecutive 2.25-year prison term for count 6.

¶4             Carnochan 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), 13-4031, and -4033(A).




1      The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

2      We review the facts in the light most favorable to sustaining
Carnochan’s convictions and sentences. State v. Haight-Gyuro, 218 Ariz. 356,
357, ¶ 2 (App. 2008).


                                     2
                         STATE v. CARNOCHAN
                           Decision of the Court

                               DISCUSSION

¶5               Carnochan argues the imposition of consecutive sentences for
counts 5 and 6 resulted in an illegal sentence. Section 13-116 provides that
“[a]n act . . . made punishable in different ways by different sections of the
laws may be punished under both, but in no event may sentences be other
than concurrent.” A.R.S. § 13-116.

¶6            Carnochan failed to raise the issue below, thus we review the
imposition of consecutive sentences for fundamental error. State v.
Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011). To prevail under
fundamental error review, Carnochan must establish that a fundamental
error exists and that such error caused him prejudice. State v. Smith, 219
Ariz. 132, 136, ¶ 21 (2008).

¶7             We review the superior court’s decision to impose
consecutive sentences under A.R.S. § 13-116 using the test set forth in State
v. Gordon, 161 Ariz. 308, 315 (1989). Under Gordon, the court first considers
“the facts of each crime separately, subtracting from the factual transaction
the evidence necessary to convict on the ultimate charge[.]” Id. If, after
doing so, there remains evidence to satisfy each element of the secondary
crime, consecutive sentences may be imposed. Id. The court then looks to
the transaction as a whole, to determine whether “it was factually
impossible to commit the ultimate crime without also committing the
secondary crime.” Id. Finally, the court considers whether “the defendant’s
conduct in committing the lesser crime caused the victim to suffer an
additional risk of harm beyond that inherent in the ultimate crime.” Id. If
so, the court should ordinarily find the defendant committed multiple acts
and may receive consecutive sentences. Id.

¶8            The State argues the two crimes were separate. The State
argues that the proof for count 5 required the State to show that Carnochan
possessed a deadly weapon while being a prohibited possessor, see A.R.S.
§ 13-3102(A)(4), whereas the proof for count 6 required the State to show
that Carnochan possessed a defaced deadly weapon knowing the deadly
weapon was defaced, see A.R.S. § 13-3102(A)(7). Carnochan argues the
crimes cannot be separated, as removal of the evidence of weapon
possession results in no remaining evidence to satisfy the elements of the
other count. We agree; the proofs for both require a finding of possession,
and thus cannot be separated by the elements.

¶9            Failing the identical elements test, however, does not end the
analysis. State v. Price, 218 Ariz. 311, 316 n.5, ¶ 16 (App. 2008). The second



                                      3
                          STATE v. CARNOCHAN
                            Decision of the Court

and third factors also indicate that Carnochan committed a single act.
Carnochan could not factually have possessed a defaced weapon without
also having possessed a weapon in general, and thus the second factor
supports concurrent sentences.

¶10            The State argues the third factor can solely support
consecutive sentences, and that the harm of the second charge was beyond
that of the first. See State v. Cotten, 228 Ariz. 105, 109, ¶ 9 (App. 2011) (“If
the victim suffered an additional risk of harm, then it is permissible to
impose consecutive sentences because the defendant committed multiple
acts.”). In Cotten, the charged crimes were theft and misconduct involving
a weapon, and the court found the type of harm presented by possession of
the weapon (physical harm) was distinct from the type of harm presented
by the theft charge (property harm). Id. at ¶ 13. Here, Carnochan’s weapon
bore a defaced serial number, presenting the additional harm that use of the
weapon for an illicit purpose would be untraceable and could therefore
subvert the community’s interest in investigating and prosecuting crimes.
See United States v. Seesing, 234 F.3d 456, 460 (9th Cir. 2000) (recognizing that
the purpose of sentencing enhancement for possessing firearm with altered
or obliterated serial number was to “discourag[e] the use of untraceable
weaponry”).

¶11            We find the third factor merely represents a higher level of
harm that results from possession of the defaced weapon, but not
necessarily a different harm to the public than mere possession. Given the
act involved is the possession of a singular .380 handgun, the type of harm
is the same, and the fact the first two Gordon factors indicate the crimes were
a single act, we hold the court erred in sentencing Carnochan to consecutive
sentences for counts 5 and 6.

¶12          Given this error, and the fact Carnochan was sentenced
concurrently as to counts 1-5, and then consecutively for count 6, we hold
the error prejudiced Carnochan, as his sentence was increased by the
imposition of consecutive sentences.

¶13           Additionally, Carnochan argues the court sentenced him
improperly on count 6, as a Class 4 felony instead of a Class 6, and argues
his sentence should be modified accordingly. The State agrees the sentence
was improper, but argues the proper remedy is not modification but
remand to the superior court for resentencing. We agree, because it is
unclear what the sentence would have been had the superior court properly
sentenced Carnochan for count 6. See State v. Fillmore, 187 Ariz. 174, 185
(App. 1996) (stating that while this Court may modify a sentence, its


                                       4
                          STATE v. CARNOCHAN
                            Decision of the Court

discretion to do so should be exercised with great caution). We will not
presume that the superior court would have sentenced Carnochan for a
Class 6 felony with the same level of mitigation as it did for a Class 4 felony.
See A.R.S. §§ 13-701(E), -703(I). We remand to allow the superior court to
resentence Carnochan for his Class 6 conviction accordingly.

                               CONCLUSION

¶14          For the foregoing reasons, we affirm Carnochan’s convictions
and sentences except that we remand for a resentencing hearing as to count
6.




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




                                        5
