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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                         v.

                         SCOTT ST. PIERRE, Petitioner.

                          No. 1 CA-CR 16-0144 PRPC
                               FILED 11-21-2017


      Petition for Review from the Superior Court in Yavapai County
                          No. P1300CR201301197
                    The Honorable Tina R. Ainley, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Yavapai County Attorney’s Office, Prescott
By Michael P. McGill
Counsel for Respondent

C. Kenneth Ray II, P.L.L.C., Prescott
By C. Kenneth Ray, II
Counsel for Petitioner
                             STATE v. ST. PIERRE
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.


C R U Z, Judge:

¶1            Scott St. Pierre petitions this Court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2            St. Pierre was at a party attended by several people when he
shot a woman in the hand. The bullet pierced the victim’s hand and hit her
boyfriend in the head, killing him. St. Pierre fired more shots in the home
and outside as he fled through a residential area.

¶3            The State charged St. Pierre with one count of second degree
murder, one count of aggravated assault, and four counts of disorderly
conduct. It alleged the second degree murder charge was a dangerous
offense because St. Pierre used a firearm to commit the crime. The State
also alleged the following aggravating circumstances: (1) the infliction or
threatened infliction of serious physical injury; (2) the victim or, if the victim
has died as a result of St. Pierre’s conduct, the victim’s immediate family,
suffered physical, emotional, or financial harm; (3) any other factor that the
State alleges is relevant to St. Pierre’s character or background or to the
circumstances of the crime, to-wit: St. Pierre was using illegal drugs just
prior to the commission of the offense (methamphetamine). Finally, the
State alleged the charged offenses were violent crimes committed while St.
Pierre was under the influence of marijuana, a dangerous drug, or a narcotic
drug (“Allegation of Violent Crime Committed While Under the
Influence”). As the State explained, if this latter allegation was proven, the
court would be required to sentence St. Pierre to a flat time prison term and
St. Pierre would be ineligible to receive earned release credits.

¶4            St. Pierre subsequently pled guilty to an amended count of
manslaughter, one count of aggravated assault, and one consolidated count
of disorderly conduct, all dangerous felonies, based on St. Pierre’s use of a
firearm to commit the offenses. For the manslaughter offense, and pursuant
to the sentence enhancement provisions of Arizona Revised Statutes


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                            STATE v. ST. PIERRE
                            Decision of the Court

(“A.R.S.”) section 13-704(A), St. Pierre agreed that the sentencing range was
7 years to a maximum of 21 years with a presumptive sentence of 10.5 years.
As part of the plea agreement, the State dismissed the Allegation of Violent
Crime Committed While Under the Influence. At sentencing, the superior
court found and weighed mitigating and aggravating factors and imposed
an aggravated eighteen-year prison term for the manslaughter conviction.
As aggravating factors, the court found: use of a deadly weapon, St. Pierre
was under the influence of methamphetamine at the time the offense, the
number of potential victims, and extreme harm to the victim’s family.
Regarding the aggravated assault and disorderly conduct offenses, the
court imposed presumptive terms of imprisonment and ordered all
sentences to run concurrently.

¶5            St. Pierre thereafter initiated post-conviction relief
proceedings. In his petition, St. Pierre challenged the aggravated sentence,
arguing the court erred in considering use of a deadly weapon and his being
under the influence of methamphetamine as aggravating factors. The court
denied the petition, and St. Pierre timely sought review. We review the
denial of post-conviction relief for an abuse of discretion. State v. Gutierrez,
229 Ariz. 573, 577, ¶ 19 (2012).

¶6             A trial court may impose an aggravated prison term only if
one or more statutory aggravating circumstances are found or admitted.
A.R.S. § 13-701(C) (2013). Section 13-701(D) lists twenty-four aggravating
factors, including physical, emotional, or financial harm to the victim or, if
the victim died as a result of the defendant’s conduct, the victim’s
immediate family. A.R.S. § 13-701(D)(9). Section 13-701(D)(24) is the so-
called “catch-all” aggravator, which permits the trier of fact to consider
“[a]ny other factor that the state alleges is relevant to the defendant’s
character or background or to the nature or circumstances of the crime.”
State v. Bonfiglio, 231 Ariz. 371, 373, ¶ 8 (2013). Aggravating a sentence
based solely on the catch-all provision is improper, State v. Schmidt, 220
Ariz. 563, 566, ¶ 12 (2009), but after the court identifies one of the factors in
A.R.S. § 13-701(D)(1)-(24), the court may rely on the catch-all provision to
increase the sentence, Bonfiglio, 231 Ariz. at 372, ¶ 1. The court also may not
aggravate a sentence based on use of a deadly weapon if it “is an essential
element of the offense of conviction or has been utilized to enhance the
range of punishment under § 13-704.” A.R.S. § 13-701(D)(2); see State v.
Harvey, 193 Ariz. 472, 476, ¶ 16 (App. 1998) (when finding of dangerousness
is based on use of a deadly weapon, “[t]he trial judge [is] . . . foreclosed from
aggravating defendant’s sentence based on his use of a deadly weapon.”).




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                           STATE v. ST. PIERRE
                           Decision of the Court

¶7             Repeating the arguments he made in the superior court, St.
Pierre contends the court improperly relied on his use of a deadly weapon
and being under the influence of methamphetamine to aggravate his
sentence for manslaughter.1 Regarding his use of a deadly weapon, St.
Pierre contends the court was statutorily prohibited from considering it as
an aggravating factor because it was the predicate for finding the
manslaughter offense was dangerous, and the court subsequently used it to
impose an enhanced sentence under A.R.S. § 13-704(A). The State concedes
error on this point, and we agree that the court should not have considered
use of a deadly weapon as an aggravating circumstance at sentencing. See
A.R.S. § 13-701(D)(2); Harvey, 193 Ariz. at 475. However, as explained infra,
St. Pierre’s aggravated sentence was lawful and he is not entitled to relief.

¶8           St. Pierre argues that, because the State withdrew the
Allegation of Violent Crime Committed While Under the Influence, the
court erred in finding as an aggravating factor his impairment by
methamphetamine at the time of the offenses. The Allegation of Violent
Crime Committed While Under the Influence was based on A.R.S. § 41-
1604.15, which provides:

       Notwithstanding any law to the contrary, any person who is
       convicted of a violent crime . . . that is committed while the
       person is under the influence of marijuana, a dangerous drug
       or a narcotic drug as defined in § 13-3401 is not eligible for
       probation or release on any basis until the entire sentence has
       been served. Pursuant to § 41-1604.07, the director shall
       include any such person in a noneligible earned release credit

1       As he did in superior court, St. Pierre also challenges the court’s
finding the aggravating circumstance of use of a deadly weapon to impose
the aggravated assault and disorderly conduct sentences. However, the
court sentenced him to presumptive sentences for those convictions.
Accordingly, the court did not rely on use of a deadly weapon to increase
St. Pierre’s sentences, and no error occurred. See State v. Johnson, 210 Ariz.
438, 442, ¶ 13 (App. 2005) (no error when court considered aggravating
factor not found by jury but sentenced defendant to presumptive terms); see
also State v. Ramsey, 211 Ariz. 529, 543 n.7, ¶ 45 (App. 2005) (trial court’s
consideration of “lack of remorse” as aggravating factor did not warrant
resentencing in view of “additional aggravating factors” found by the court
and the presumptive sentence imposed). Thus, we limit our review to the
aggravated sentence imposed for the manslaughter offense.




                                      4
                           STATE v. ST. PIERRE
                           Decision of the Court

      class and the prisoner is not eligible for placement in an
      eligible earned release credit class.

¶9            Considering the language of A.R.S. § 41-1604.15, St. Pierre
misconstrues the Allegation of Violent Crime Committed While Under the
Influence and the State’s agreement to withdraw it. Section 41-1604.15 says
nothing about considering the commission of a violent crime while under
the influence of a dangerous drug as an aggravating factor to be used at
sentencing. Rather, by dismissing the allegation, the State apparently
intended St. Pierre to not be prohibited from obtaining earned release
credits based solely on his commission of a violent crime while under the
influence of methamphetamine.

¶10            Here, the superior court could properly consider the potential
number of victims and St. Pierre’s methamphetamine impairment as
aggravating factors under the catch-all provision because the court found
harm to the victim’s family under A.R.S. § 13-701(D)(9), an aggravating
factor St. Pierre admitted. Because the court relied on proper factors and
the improper factor of use of a deadly weapon in aggravating St. Pierre’s
sentence, we will affirm if the record clearly shows the court would have
reached the same decision without consideration of the improper factor.
See State v. Hardwick, 183 Ariz. 649, 656-57 (App. 1995).

¶11           Nothing in the record indicates the court—by relying on St.
Pierre’s methamphetamine impairment, harm to the victim’s family, and
the number of potential victims—would not have imposed an eighteen-
year prison term. Significantly, the court commented, “[W]ithout the
methamphetamine, . . . this would not have happened.” Further, the court
determined that the extreme harm to the deceased victim’s family, when
compared to the relatively lesser harm to the aggravated assault and
disorderly conduct victims, warranted an aggravated sentence for the
homicide offense and presumptive sentences for the other offenses. With
the record otherwise supporting the three aggravating factors properly
considered by the court, we cannot find the court abused its discretion in
imposing an eighteen-year prison term. See State v. Martinez, 210 Ariz. 578,
584, ¶ 21 (2005) (“Under Arizona’s sentencing scheme, once a jury implicitly
or explicitly finds one aggravating factor, a defendant is exposed to a
sentencing range that extends to the maximum punishment available under
section 13-702. Under those circumstances, a trial judge has discretion to
impose any sentence within the statutory sentencing range.”) (citations
omitted).




                                     5
                  STATE v. ST. PIERRE
                  Decision of the Court

¶12   For the foregoing reasons, we grant review and deny relief.




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




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