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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   CARLOS LEAUDRE WEBB, Appellant.

                             No. 1 CA-CR 14-0546
                               FILED 3-31-2016


           Appeal from the Superior Court in Maricopa County
              No. CR2012-121749-001, CR2013-002132-001
               The Honorable Warren J. Granville, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                             STATE v. WEBB
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1            Webb was convicted and sentenced for attempted second
degree murder, kidnapping, and two counts of aggravated assault. He
appeals the trial court’s sentences. We affirm Webb’s sentence for the
second count of aggravated assault. We vacate Webb’s sentences for
attempted second degree murder, kidnapping, and the first count of
aggravated assault and remand to the trial court for resentencing consistent
with this decision.

                FACTS AND PROCEDURAL HISTORY

¶2            In 2010, Webb met with an educational recruiter at ITT
Technical Institute (ITT) to enroll in classes. After enrolling, Webb pursued
a romantic relationship with the recruiter. The recruiter refused Webb’s
advances, stating it was “against policy.” Consistent with her job
responsibilities however, the recruiter re-enrolled Webb for classes in 2011.

¶3             In April 2012, Webb located an ex-girlfriend in a classroom at
ITT and asked her to talk with him outside. She refused, even after he lifted
his shirt to show her he had a gun tucked into his waistband.

¶4           That evening, the recruiter noticed Webb staring at her while
she spoke with another student in the campus internet café. She saw Webb
leave after about ten minutes, and soon thereafter exited the campus
building to go home. As she stepped outside the building, Webb
approached her and said he needed to talk. The recruiter told him she could
not speak with him at that time because she was no longer working. Webb
demanded she go to her car, and, not understanding why, she refused.
Webb again insisted, stating, “I’m going to do something crazy, go to your
car.” The recruiter again refused and began backing away from Webb.
Webb suddenly pulled the gun from his waistband, put it to the recruiter’s
neck, and said, “you knew I liked you, you should have been with me.”




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                           Decision of the Court

¶5            The recruiter struggled with Webb, attempting to pull the gun
away from him as he forcibly led her to an open field adjacent to the ITT
parking lot. Once there, Webb threw her to the ground, lay on top of her,
and told her he would kill her if she screamed or tried to run. She said she
would do whatever he wanted, and he instructed her to go to her car. She
got up from the ground while Webb held the gun to her side. She
immediately noticed a man on a motorcycle nearby and yelled for help. The
motorcyclist, hearing her screams and seeing her struggle, shined his
motorcycle’s headlight toward her and yelled, “hey, what are you doing,
let her go.”

¶6            The recruiter broke free and began moving back toward the
school. As she did so, Webb fired the gun. The bullet struck the recruiter
in the back, but she continued to run back to ITT and, once inside, was
tended to by two ITT employees who called 9-1-1.

¶7           Police were informed Webb was the assailant, and later that
evening, Webb surrendered to police. While en route to the police station,
Webb admitted shooting the recruiter, who, following emergency surgery
and several days in a coma, eventually recovered.

¶8            Webb was convicted of attempted second degree murder
(count one), kidnapping (count two), and two counts of aggravated assault
(counts three and five).1 Because Webb used a gun while committing all of
these offenses, he was sentenced as a dangerous offender under Arizona
Revised Statutes (A.R.S.) section 13-704(A).2 After considering the
aggravating and mitigating factors, the trial court sentenced Webb to
aggravated terms of twenty years’ imprisonment on count one, eighteen
years’ imprisonment on count two, and ten years’ imprisonment on count
three, as well as a presumptive term of seven and a half years’
imprisonment on count five. See id. The court ordered the sentences on
counts two, three, and five to run concurrently but consecutive to the
sentence imposed on count one. Webb timely appealed. We have




1      Webb was also indicted for one count each of attempted sexual
assault, misconduct involving weapons, disorderly conduct, and
threatening and intimidating. None of these charges resulted in a
conviction.

2     Absent material changes from the relevant date, we cite a statute’s
current version.

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                              STATE v. WEBB
                            Decision of the Court

jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1),
(4).

                               DISCUSSION

I.     Consecutive Sentences on Counts One and Three

¶9             Webb argues the trial court erred in ordering his sentence for
count three (aggravated assault) to run consecutive to his sentence for count
one (attempted second degree murder) because both arose from a single act
— shooting the gun. Because Webb did not object at the sentencing hearing,
we review for fundamental, prejudicial error. State v. Provenzino, 221 Ariz.
364, 369, ¶ 18 (App. 2009) (citing State v. Henderson, 210 Ariz. 561, 567, ¶¶
19-20 (2005)). Generally, “[i]mposition of an illegal sentence constitutes
fundamental error.” State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002) (citing
State v. Cox, 201 Ariz. 464, 468, ¶ 13 (App. 2002)).

¶10           Arizona law provides “[a]n act or omission which is made
punishable in different ways by different sections of the laws may be
punished under both, but in no event may [the] sentences be other than
concurrent.” A.R.S. § 13-116. The State concedes Webb’s convictions on
counts one and three arose from a single act and the trial court’s consecutive
sentences constitute fundamental, prejudicial error. Therefore, pursuant to
A.R.S. § 13-116, we order that count three, which is subject to resentencing
on remand as addressed below, infra Part II, run concurrently with count
one.

II.    Aggravating Factors Considered at Sentencing

¶11           Webb also argues the trial court improperly considered (1) the
use of a gun in the commission of the offenses and (2) injury to the victim
when it imposed aggravated sentences for counts one through three.
Again, because Webb failed to object to the sentences at the time they were
imposed, we review for fundamental, prejudicial error. See supra ¶ 9.

¶12              At the aggravation hearing, the jury found the offenses in
counts one and two “w[ere] committed while the defendant was on
probation for another offense, . . . involved the use or threatened use of a
gun, . . . involved the infliction or threatened infliction of serious physical
injury, . . . [and] caused physical or emotional harm to the victim.” As to
count three, the jury found the offense “was committed while the defendant
was on probation for another offense, . . . involved the use or threatened use
of a gun, . . . [and] caused emotional harm to the victim.”



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                              STATE v. WEBB
                            Decision of the Court

¶13           At the sentencing hearing, the trial court stated:

       Based upon the Jury’s determination, the Court finds as
       applicable to Counts 1, 2, 3 and 5, the aggravating factor that
       you committed the offense on probation, the aggravating
       factor of the use of a deadly weapon, the aggravating factor
       of serious physical injury, the aggravating factor of physical
       and emotional harm suffered by the victim.

The court further stated:

       I do know as proven that you were on probation at the time.
       I do know beyond a reasonable doubt that you used a
       weapon. I do know beyond a reasonable doubt that you
       caused serious physical injury, both with a fractured
       collarbone and abdominal wound that almost killed [the
       victim]. I do know beyond a reasonable doubt the physical
       and emotional harm. I do accept as true your mother’s
       support, the family background and PTSD, as reflected in the
       doctor’s report, the mental health issues.

After advising it had “balance[d] all those factors out,” the court then
sentenced Webb to aggravated prison terms for counts one through
three and a presumptive term for count five.

       A.     Use of a Gun

¶14           Webb argues the use of a gun elevated the offenses in counts
one through three to dangerous offenses, see A.R.S. § 13-105(13) (defining
“dangerous offense” as one “involving the discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument”), and that the trial
court therefore could not also use that factor to aggravate his sentences.
Indeed, A.R.S. § 13-701(D)(2) mandates that the court “consider . . . [the]
[u]se, threatened use or possession of a deadly weapon” as an aggravating
factor at sentencing, “except if this circumstance . . . has been utilized to
enhance the range of punishment under [A.R.S.] § 13-704.” (Emphasis
added).

¶15           The State concedes that the use of a gun could not be used to
aggravate any of Webb’s sentences, see State v. Glassel, 211 Ariz. 33, 57 n.17,
¶ 101 (2005), but contends the trial court used this factor only to enhance
Webb’s sentence as a dangerous offender rather than aggravate his sentence
within the applicable range, see State v. Alvarez, 205 Ariz. 110, 116 n.1 (App.
2003) (“Sentence enhancement elevates the entire range of permissible


                                      5
                               STATE v. WEBB
                             Decision of the Court

punishment while aggravation and mitigation raise or lower a sentence
within that range.”). The State’s argument is not supported by the record.

¶16            At sentencing, the trial court specifically acknowledged
Webb’s use of a gun was one of the aggravating factors found by the jury,
stated it knew Webb “used a weapon,” and sentenced Webb to aggravated
prison terms for counts one through three after “balancing all those factors
out.” (Emphasis added). The record therefore does not definitively
indicate that the presence of a gun was used only to enhance Webb’s
sentence — that is, to apply the more stringent sentencing range under
A.R.S. § 13-704(A) — and not also to aggravate Webb’s sentence within that
range. And, if the court did consider the use of a gun in imposing an
aggravated sentence, the sentence would violate A.R.S. § 13-701(D)(2) and
constitute fundamental error. See Thues, 203 Ariz. at 340, ¶ 4 (citing Cox,
201 Ariz. at 468, ¶ 13); see also State v. Trujillo, 227 Ariz. 314, 318, ¶ 15 (App.
2011) (holding consideration of prohibited aggravating factors deprives the
defendant of a right essential to his defense and constitutes fundamental
error) (citations omitted).

¶17           In addition to showing fundamental error, Webb must also
demonstrate the error was prejudicial. See State v. Smith, 219 Ariz. 132, 136,
¶ 21 (2008) (citing Henderson, 210 Ariz. at 568, ¶ 22). “A sentencing error
involving the improper consideration of aggravating factors is harmless
only if we can be certain that, absent the error, the court would have
reached the same result.” State v. Munninger, 213 Ariz. 393, 396, ¶ 9 (App.
2006) (quotation and citation omitted). In Munninger, we concluded the
defendant was not prejudiced where it was clear from the trial court’s
comments it would have imposed an aggravated sentence based upon
“each of the aggravating factors alone.” Id. at 397, ¶ 12. Here, however, the
court engaged in no such explicit delineation during sentencing; instead, it
listed the aggravating factors found by the jury, including the use of a gun,
and imposed aggravated sentences after “balancing all those factors out.”
Under A.R.S. §§ 13-704(A) and -708(A), the court had the discretion to
impose sentences of 10.5 to 21 years for counts one and two, and 7.5 to 15
years for count three. Had the court not included the use of a gun in
“balancing all those factors,” Webb’s sentence may well have been less than
what it imposed. Furthermore, as Webb’s brief recognizes, the court
sentenced Webb to the presumptive term on count five despite considering
the same aggravating factors on all counts.




                                        6
                             STATE v. WEBB
                           Decision of the Court

¶18          Because we cannot conclude the trial court would have
imposed the same sentence absent its consideration of the use of a gun as
an aggravating factor on counts one and three, we remand for resentencing.
See Munninger, 213 Ariz. at 396, ¶ 9.

       B.     Serious Physical Injury

¶19             Webb likewise asserts the trial court erroneously considered
infliction of serious physical injury — an essential element of the offense of
aggravated assault — when it imposed an aggravated sentence for count
three.3 Under A.R.S. § 13-701(D)(1), the trial court is prohibited from
considering the infliction or threatened infliction of serious physical injury
as an aggravating factor in imposing sentence if the factor “is an essential
element of the offense of conviction.” The parties agree that infliction of
serious physical injury constituted an essential element of the aggravated
assault offense for which Webb was charged and convicted here.4

¶20            At sentencing, the trial court specifically acknowledged that
infliction of serious physical injury was one of the aggravating factors
found by the jury, stated it knew Webb “caused serious physical injury” to
the victim, and sentenced Webb to an aggravated prison term for count
three after “balancing all those factors out.” The record therefore does not
definitively indicate whether infliction of serious physical injury was
considered an aggravating factor of Webb’s sentence for count three. If the
court did consider infliction of serious physical injury in imposing an
aggravated sentence for count three, it violated the law, which constitutes
fundamental error. See supra ¶ 16. Therefore, on remand, the trial court is
prohibited from considering infliction of serious physical injury as an
aggravating factor in resentencing Webb for count three.




3      Webb also argues the court erred in considering infliction of serious
injury as an aggravating factor because the jury did not find this factor as
to count three. But, “once a jury finds or a defendant admits a single
aggravating factor, the Sixth Amendment permits the sentencing judge to
find and consider additional factors relevant to the imposition of a sentence
up to the maximum prescribed in that statute.” State v. Martinez, 210 Ariz.
578, 585, ¶ 26 (2005) (citing A.R.S. § 13-702).

4      As the jury was instructed, a person commits aggravated assault by
intentionally, knowingly, or recklessly causing serious physical injury to
another person. A.R.S. §§ 13-1203(A)(1), -1204(A)(1).

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                           STATE v. WEBB
                         Decision of the Court

                           CONCLUSION

¶21          We affirm Webb’s convictions on all counts and sentence on
count five. We vacate his sentences for counts one through three and
remand for resentencing consistent with this decision.




                               :ama




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