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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 CHARLES WILSON COFFELT, Appellant.

                             No. 1 CA-CR 17-0303
                               FILED 6-14-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201500452
            The Honorable Steven F. Conn, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.


B E E N E, Judge:

¶1            Charles Wilson Coffelt (“Coffelt”) appeals his sentences for
possession of methamphetamine for sale, possession of drug paraphernalia,
and possession of marijuana.1 He claims the superior court vindictively
considered a harsher range of sentences at resentencing and the prosecutor
vindictively recommended a more severe sentence after his successful
appeal. For the following reasons, we affirm.

                FACTS2 AND PROCEDURAL HISTORY

¶2            In 2016, a jury convicted Coffelt of possession of
methamphetamine for sale. The State proved Coffelt had two prior felony
convictions on the same occasion, one of which the superior court
determined to be a historical prior. At the initial sentencing hearing, the
State did not recommend sentencing Coffelt under the methamphetamine
sentencing statute, Arizona Revised Statutes (“A.R.S.”) section 13-3407(E).
Instead, the State argued Coffelt should be sentenced under the repetitive
offender sentencing statute, A.R.S. § 13-703(B), to the presumptive term of
9.25 years in prison. The court sentenced him as a category-two repetitive
offender to the slightly mitigated term of 9 years.

¶3           Coffelt appealed, and we vacated his sentence. State v. Coffelt,
1 CA-CR 16-0272, 2017 WL 1031138, at * 1, ¶ 1 (Ariz. App. Mar. 16, 2017)
(mem. decision). We found that Coffelt did not have a historical prior, thus,


1      Regarding the drug paraphernalia and marijuana sentences, the
superior court sentenced Coffelt to 9 months in prison for each count to run
concurrently, with 436 days of incarceration credit for each sentence.
Because Coffelt has already served the entirety of both sentences, the
propriety of those sentences are moot questions. See State v. Hartford, 145
Ariz. 403, 405 (App. 1985).

2      We view the facts in a light most favorable to upholding the superior
court’s actions. State v. Rowe, 116 Ariz. 283, 284 (1977).


                                     2
                           STATE v. COFFELT
                           Decision of the Court

the superior court could not sentence him as a category-two offender. Id. at
* 3, ¶ 11. At resentencing, the State, for the first time, pursued a sentence
under the methamphetamine statute, § 13-3407(E). A sentence under this
statute ranged from 5 to 15 years imprisonment without the possibility of
earning early release credit. The State recommended the presumptive 10-
year sentence, but the court sentenced Coffelt to a mitigated term of 7.5
years in prison.

¶4            Coffelt timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1).

                              DISCUSSION

¶5            Coffelt first argues the superior court violated due process
and the Arizona Rules of Criminal Procedure by vindictively considering a
harsher range of sentences after his appeal. He also argues the State
violated due process by vindictively recommending a more severe sentence
after his appeal. We review claims of vindictiveness for an abuse of
discretion. State v. Brun, 190 Ariz. 505, 506 (App. 1997).

    I.    Judicial Vindictiveness

¶6            Due process prohibits courts from vindictively sentencing
defendants to lengthier terms after seeking a successful appeal. North
Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled in part by Alabama v.
Smith, 490 U.S. 794 (1989). The Arizona Rules of Criminal Procedure also
shield a defendant from the court vindictively imposing a harsher sentence
after appeal. Ariz. R. Crim. P. 26.14. Here, the court did not impose a
lengthier sentence. Coffelt was initially sentenced as a repetitive offender
to 9 years of “soft-time,”3 meaning he would have actually served 7.65
years. The court, explicitly intending not to punish Coffelt for his appeal,
sentenced him to 7.5 calendar4 years. Because Coffelt did not receive a



3     An offender sentenced pursuant to the repetitive offender
sentencing statute may be released after serving approximately 85% of his
sentence. See Ariz. Rev. Stat. § 13-703(O); Ariz. Rev. Stat. § 41-1604.07(A).

4       The methamphetamine sentencing statute requires sentences to be
served in calendar years. See Ariz. Rev. Stat. § 13-3407(E). A calendar year
means 365 days actual time without the possibility of release. Ariz. Rev.
Stat. § 13-105(4).


                                     3
                            STATE v. COFFELT
                            Decision of the Court

harsher sentence, the court did not violate his due process rights at
resentencing.

   II.     Prosecutorial Vindictiveness

¶7            Due process also protects defendants from vindictiveness at
the hands of the State. Blackledge v. Perry, 417 U.S. 21, 28-29 (1974). A
defendant may establish prosecutorial vindictiveness by showing, with
objective evidence, the prosecutor intended to punish him for exercising his
right. State v. Tsosie, 171 Ariz. 683, 685 (App. 1992). Because actual
vindictiveness is difficult to prove, defendants may also rely on the
presumption of vindictiveness. Id. (internal citation omitted). The
presumption arises when the facts demonstrate “a realistic likelihood of
vindictiveness.” Id. (internal quotations and citation omitted). The State
may rebut the presumption with “objective information . . . justifying the
increased sentence.” United States v. Goodwin, 457 U.S. 368, 374 (1982).

¶8           At the first sentencing, the superior court asked the State if it
wanted to opt out of the methamphetamine sentencing statute and
recommend sentencing Coffelt as a repetitive offender. The prosecutor
answered affirmatively and recommended Coffelt serve 9.25 years of soft-
time, meaning he could serve approximately 7.85 years.

¶9             After Coffelt’s successful appeal, the State sought a sentence
under the methamphetamine sentencing statute and argued for the
presumptive 10-year term in prison. The court stated, “if we are no longer
alleging a prior conviction, I don’t see how you get around the fact that if
you possess methamphetamine for sale, it’s subject to the
methamphetamine sentencing statute.” In response, defense counsel
equivocated, stating, “I think there’s an issue that, essentially now, that they
would be trying to punish him for basically being successful on appeal and
basically get close to the vindictive prosecution type of argument that could
possibly be made.”

¶10            Assuming without deciding that Coffelt’s objection to the
State’s request for a lengthier sentence under the methamphetamine statute
was properly raised and preserved for appeal, a presumption of
vindictiveness arose when the State recommended Coffelt be sentenced to
more time in prison without providing objective reasons. See Tsosie, 171
Ariz. at 685; Goodwin, 457 U.S. at 374. Typically, at this point the burden
would shift to the State to offer a justification for its new position. The State
did not offer justification. But here the court rejected the State’s request and
imposed a sentence of 7.5 years. This new sentence was not only lawful



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                            STATE v. COFFELT
                            Decision of the Court

under the methamphetamine sentencing statute, but also netted Coffelt less
prison time than his original sentence. Because Coffelt received no net
increase in his resulting sentence, we need not engage in the analysis of
prosecutorial vindictiveness. See, e.g., United States v. Kinsey, 994 F.2d 699,
701-02 (9th Cir. 1993) (finding state’s correction of illegal sentence based on
defendant’s appeal that resulted in no net increase in sentence “does not
suggest a vengeful or retaliatory motive, as connoted by vindictive
prosecution.”). There is no due process violation by the court’s failure to
hold the State to its burden to justify its new sentencing recommendation
because the court did not impose the State’s request, and the sentence
ultimately imposed was lawful. See State v. Thomas, 142 Ariz. 201, 204 (App.
1984) (resentencing once original sentence vacated was “sentencing anew”
and, in absence of constitutional prohibitions, trial court was free to impose
any sentence legally allowed). Because Coffelt received a more lenient
sentence at his resentencing, he cannot show that he was punished for
exercising his right to appeal and consequently has failed to show a
violation of his due process rights.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm Coffelt’s sentence for
possession of methamphetamine for sale.




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




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