State v. Harrison

NOYES, Judge,

Concurring in part and Dissenting in part.

¶ 40 Because it makes no sense to vacate a manifestly lenient sentence on grounds that the trial court failed to state aggravating factors, I respectfully dissent from the remand order.

¶41 The 71-page sentencing transcript shows that the trial court knew this case well and that many aggravating and few mitigating factors existed. Defendant’s criminal history was very bad, and the conduct that resulted in these convictions was outrageous. But Defendant was a proud individual with good potential and good support from those who knew him best. The trial court discussed Defendant’s background and beliefs, his inability to control his anger, his role in turning a routine traffic stop into a chaotic confrontation, his attempts to beat up officers, and, in general, how his behavior went beyond the bounds of what is acceptable in a “civilized society.” The court then imposed an aggravated sentence that was actually a very lenient sentence.

¶ 42 The State requested consecutive aggravated sentences totalling 9.75 years; the probation officer recommended consecutive presumptive sentences totalling 7.5 years; the trial court gave Defendant a huge break and imposed aggravated concurrent sentences totalling 3 years. Yet we remand for resentencing because the trial court did not sufficiently state aggravating factors. Ironically, we would readily affirm if the court had stated no reasons while imposing presumptive, consecutive sentences totalling 7.5 years. See State v. Dowd, 139 Ariz. 542, 543, 679 P.2d 565, 566 (App.1984) (noting that court must state reasons for imposing other than presumptive sentence); A.R.S. § 13-708 (1989) (mandating that court state reasons for imposing other than consecutive sentences).

¶ 43 Defendant’s appellate counsel had to raise this “factors” issue because State v. Holstun, 139 Ariz. 196, 197, 677 P.2d 1304, 1305 (App.1983), held that the failure to sufficiently state aggravating factors cannot be harmless error. The present case is a good example of why we should modify the Hol-stun rule and adopt the reasoning of the Holstun dissent, which noted that an error in stating aggravating factors can be harmless and that a judicial decree that it can never be harmless is an “elevation of this type of error to a status not enjoyed even where error of constitutional dimension is involved.” Id. at 199, 677 P.2d at 1307.

¶ 44 Any errors made by the trial court while explaining its sentences were harmless beyond a reasonable doubt as to Defendant and were waived by the State (which did not appeal the court’s failure to state reasons for imposing concurrent sentences). The convictions and sentences should be affirmed.