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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      RICHARD MORAGA, Appellant.

                             No. 1 CA-CR 15-0441
                               FILED 9-8-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-124601-001
             The Honorable Roland J. Steinle, Judge Retired

   AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant


                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
                            STATE v. MORAGA
                            Decision of the Court

C A T T A N I, Judge:

¶1            Richard Daniel Moraga appeals his convictions and sentences
for three counts of aggravated assault. For reasons that follow, we affirm
the convictions, and we affirm the sentences imposed for two of the
convictions, but vacate the third sentence and remand for resentencing.

             FACTS AND PROCEDURAL BACKGROUND

¶2            A jury found Moraga guilty of three aggravated assaults
stemming from an incident in which Moraga leaned out of a moving car,
pointed a gun at three acquaintances, and shouted that he was going to
shoot them. The three victims testified that they were upset and frightened
to various degrees by Moraga’s actions, and they indicated that, because
Moraga had previously lived with them, his actions were particularly
upsetting. During the aggravation phase, the jury found that the crimes
were dangerous, and found emotional harm as to the victims in Counts 1
and 2, but not as to the victim in Count 3. The court sentenced Moraga to
three concurrent, aggravated 9.5-year terms of imprisonment. Moraga
timely appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 13-4033.1

                               DISCUSSION

¶3            Moraga argues that the superior court wrongfully imposed
aggravated sentences because the State did not properly allege the
emotional harm aggravating circumstance before trial. Because Moraga did
not raise this objection before the superior court, we review only for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶
19–20 (2005). Fundamental error goes “to the foundation of the case,” takes
away “a right essential to [the] defense,” and is “of such magnitude that the
defendant could not possibly have received a fair trial.” Id. at ¶ 19 (citation
omitted). To show reversible error, a defendant must establish not only
fundamental error, but also resulting prejudice. Id. at ¶ 20.

¶4           Under A.R.S. § 13-701(C), an aggravated sentence “may be
imposed only if one or more of the circumstances alleged to be in
aggravation of the crime are found to be true by the trier of fact beyond a
reasonable doubt [or by the court in the case of prior convictions] or are
admitted by the defendant.” Moraga argues that the court erred by


1     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                      2
                            STATE v. MORAGA
                            Decision of the Court

imposing aggravated sentences for all three counts because the word
“alleged” in § 13-701(C) implies that the State must allege the aggravating
circumstances before trial, and he claims that the State failed to do so in this
case. His argument fails, however, because the State specifically alleged
harm to the victims as an aggravating circumstance in the joint pretrial
management statement. Moreover, defense counsel offered no objection
and expressed no surprise at trial while discussing aggravation phase
procedures, including submission of emotional harm to the jury, and
defense counsel presented argument on the emotional harm factor that
same day. Because Moraga was clearly on notice regarding the alleged
aggravating circumstance of harm to the victims, he has not established
error, fundamental or otherwise. Cf. State v. Cropper, 205 Ariz. 181, 184–85,
¶ 16 (2003) (holding that the failure to provide written notice of aggravating
circumstances, as required in capital cases, was not reversible error when
the defendant had actual notice).

¶5            Although the superior court properly considered emotional
harm as an aggravating factor for Counts 1 and 2, the court erred by
imposing an aggravated sentence as to Count 3 because the jury did not
find emotional harm for that count. During sentencing, the court noted that
emotional harm was a “substantial” aggravating factor, and stated that it
found “one substantial aggravating factor” as the basis for aggravated
sentences on all counts. Because the jury did not find emotional harm as to
Count 3, the court improperly used that factor as the basis for an aggravated
term for Count 3. See State v. Bonfiglio, 231 Ariz. 371, 374, ¶ 14 (2013) (noting
that superior court should “clearly articulate at sentencing the factors the
judge considered to be aggravating or mitigating and explain how those
factors led to the sentence imposed”). “An illegal sentence constitutes
fundamental error.” State v. Forde, 233 Ariz. 543, 574, ¶ 137 (2014).

¶6            The State posits that another felony conviction—which
Moraga committed before the instant offenses, but to which he pleaded
guilty after conviction in this case—could be considered as an alternative
aggravating factor to justify the aggravated sentence for Count 3. But under
A.R.S. § 13-701(D)(11), a prior conviction can only be used as an aggravating
circumstance if “[t]he defendant was previously convicted of a felony within
the ten years immediately preceding the date of the offense.” (Emphasis
added.) Here, because Moraga was not convicted of the “prior” felony until
after the date of the instant offenses, it cannot be used in this case as an
aggravating circumstance under § 13-701(D)(11). Although the other felony
conviction and emotional harm could be considered under the “catch-all”
provision in A.R.S. § 13-701(D)(25), the catch-all provision cannot be used
as a basis to impose an aggravated sentence absent another statutory


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                           STATE v. MORAGA
                           Decision of the Court

aggravating circumstance. See State v. Schmidt, 220 Ariz. 563, 566, ¶ 10
(2009) (holding that use of the catch-all provision as the sole factor to
increase a defendant’s statutory maximum sentence violates due process).
Accordingly, the court erred by imposing an aggravated sentence for Count
3.

¶7            The State correctly notes our authority to correct an illegal
sentence without a remand. See State v. Contreras, 180 Ariz. 450, 453 n.2
(App. 1994). But we will do so only if we can determine the sentencing
court’s intention from the record. See id. Although the superior court
rejected the presentence report’s recommendation that Moraga be given a
mitigated sentence, the court did so in the context of weighing Moraga’s
mitigation evidence against an improperly considered aggravating
circumstance.     Accordingly, we remand to the superior court for
resentencing on Count 3, leaving to the court the determination whether to
impose the presumptive sentence or a mitigated sentence. See State v. Price,
217 Ariz. 182, 186, ¶¶ 17–18 (2007) (remanding case after finding that the
trial court improperly relied on an aggravating factor).

¶8           Moraga’s convictions and sentences are affirmed in all other
respects.

                              CONCLUSION

¶9            For the foregoing reasons, we affirm Moraga’s three
convictions and the sentences imposed on the first two counts, but vacate
the sentence on Count 3 and remand for resentencing.




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




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