State v. Cline

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KRISTA MARIE CLINE, Appellant.
No. 1 CA-CR 22-0230
FILED 6-29-2023
Appeal from the Superior Court in Yavapai County
No. V1300CR201880022
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee
Krista Marie Cline, Goodyear
Appellant
STATE v. CLINE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.
M c M U R D I E, Judge:
¶1 Krista Marie Cline appeals from her convictions and
sentences for theft and fraudulent schemes and artifices. We find no
reversible error and affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Cline managed the assets of several trusts, all signed and
executed in Yavapai County. Between 2014 and 2017, Cline served as the
trustee of the Nelson Trust.2 During this time, Cline failed to provide an
annual accounting or distribute proceeds to the beneficiaries. Cline entered
a 30-year “owner-carry” contract for the trust’s residential property with
“extremely unfavorable terms” and never distributed the proceeds to
beneficiaries. Cline sold assets belonging to the trust’s commercial property
without depositing the proceeds in the trust account, informing
beneficiaries, or making distributions. When Cline began her tenure with
the Nelson Trust, the trust account had around $60,000 in assets. In the end,
the trust account had less than $500 remaining.
¶3 In 2017, the probate court ordered Cline to provide an
accounting for the Nelson Trust. When Cline eventually disclosed the
accounting, it lacked a detailed itemization of expenses, fees, and service
dates. Trust account records showed over $50,000 in transfers and
withdrawals were made without documentation. Cline’s banking records
revealed that she transferred $35,065 from the trust to her fiduciary account,
1 We view the facts in the light most favorable to upholding the
verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
2 We use pseudonyms to protect the privacy of the trusts and
beneficiaries.
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$22,950 to her checking account, $6,250 to another business account, and
$600 to pay her credit card bill.
¶4 Between 2014 and 2018, Cline served as the trustee of the
Porter Trust. Although the trust’s executor had personally “taken care of
most of his affairs,” Cline removed $32,758 of the trust’s $45,000 cash assets
throughout her time as a trustee. Her banking records showed that she
transferred $11,592 from the trust account to her fiduciary account, $14,700
to her checking account, $2,550 to another business account, and $3,916 to
pay her credit card bill. Cline also sold vehicles belonging to the trust for
about $6,600 without depositing the proceeds into the trust account.
¶5 For nine months in 2017, Cline served as the trustee of the
Kennedy Special Needs Trust. When first executed, the trust had over
$15,000 to help Kennedy live independently. Cline’s banking records
showed she transferred $5,103 from the trust account to her fiduciary
account, $560 to her checking account, and $1,412 to pay her credit card
accounts. At the end of her tenure as trustee, only around $3,000 remained.
¶6 With an investigation into Cline’s trust management looming,
she provided additional invoices to authorities. For the Nelson and Porter
Trusts, the invoices did not list specific dates for services rendered, and the
time spent on routine services appeared heavily inflated, consistently
rounded up to “large even hours.” Some invoices showed Cline billed for
services she had not completed. For the Kennedy Trust, the formatting of
the invoices differed from those of the other trusts, with dates specified next
to the services rendered. The invoices, however, contained inflated hours
for routine services, discrepancies in expenses, and creation dates after
Cline stopped acting as trustee. When Cline eventually spoke with the lead
detective, she could not recall making any “improper transfers” and denied
transferring money to anything but her fiduciary account.
¶7 The State charged Cline with three counts of fraudulent
schemes and artifices, Class 2 felonies (Counts 1, 3, and 5), two counts of
theft, Class 2 felonies (Counts 2 and 4), and one count of theft, a Class 6
felony (Count 6). Counts 1 and 2 applied to offenses committed against the
Nelson Trust, Counts 3 and 4 applied to crimes against the Porter Trust, and
Counts 5 and 6 applied to crimes against the Kennedy Trust.
¶8 In an unrelated criminal case, Cline was tried and convicted
for mismanaging another trust between January 2016 and March 2017. See
State v. Cline (the 2017 case), 1 CA-CR 20-0257, 2021 WL 871756, at *1–2,
¶¶ 2–3, 9 (Ariz. App. Mar. 9, 2021) (mem. decision). In the 2017 case, the
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superior court sentenced Cline to multiple concurrent terms of
imprisonment. Id. at *2, ¶ 9. We affirmed Cline’s convictions but corrected
an error in the sentencing minute entry. Id. at *6, ¶¶ 35–36.
¶9 As the trial approached in this case, Cline waived her right to
counsel and elected to represent herself. In this capacity, Cline filed several
pretrial motions, including a motion to dismiss for lack of subject matter
jurisdiction. She argued that the criminal court lacked jurisdiction because
trusts fall within the domain of the probate court. The superior court
granted some of Cline’s motions but denied the motion to dismiss.
¶10 In the six-day jury trial, the State presented testimony from
(1) the lead detective about the relevant trusts; (2) beneficiaries, counsel for
the successor trustee, and other interested parties associated with the
Nelson Trust; (3) family members associated with the Porter Trust; (4) the
successor trustee for the Kennedy Trust; (5) a fiduciary expert; and (6) a
forensic accountant.
¶11 At the close of the State’s case, Cline moved for a judgment of
acquittal under Arizona Rule of Criminal Procedure (“Rule”) 20(a)(1),
arguing the evidence showed she acted within her lawful authority as
trustee. The superior court denied the motion. Although Cline chose not to
testify on her behalf, she called witnesses associated with the Kennedy
Trust. Cline presented evidence of legitimate, documented purchases she
made for Kennedy while acting as trustee.
¶12 In its closing argument, the State focused on the sparse,
nonspecific, and hurried nature of the accounting Cline provided
authorities. The State contended that compared to Cline’s personal and
business accounts, the jury could reasonably infer that she created the
invoices “after the fact using bank records as a guide.” In Cline’s closing
argument, she attacked the investigation, claiming authorities should have
uncovered more details about her banking records, income, and online
scheduling. Before its rebuttal argument, the State informed the court that
it intended to comment on Cline’s failure to provide any additional,
possibly exculpating, documents. Cline did not object, and the court found
it an appropriate rebuttal argument. The State then argued to the jury that
authorities gave Cline a chance to provide additional documentation, but
she chose not to do so.
¶13 The jury convicted Cline on Counts 1 through 4 but could not
reach a unanimous verdict on Counts 5 and 6. The court granted the State’s
motion to dismiss Counts 5 and 6 with prejudice. The jury found one
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aggravating factor applied to Counts 1 and 3, and two aggravating factors
involved Counts 2 and 4. After the jury rendered its verdict, Cline renewed
her motion for judgment of acquittal under Rule 20(b)(1). She argued
insufficient evidence supported her convictions, and she acted within her
lawful authority in managing the trusts. The court denied the motion,
finding sufficient evidence that Cline exceeded her role as a fiduciary in
controlling and depriving the beneficiaries of the trust assets.
¶14 As sentencing approached, Cline submitted a sentencing
memorandum and letters of support from friends and family. Cline asked
for leniency and requested presentence incarceration credit for her time in
custody in the 2017 case. She moved to preclude portions of the adult
probation department’s presentence report, arguing it included false and
inaccurate statements. The court conducted a two-day presentence hearing,
where Cline called the presentence report writer to testify about her
findings and challenged the nature of the report. Cline’s family and friends
testified, further countering the recommendations made in the report. The
court sustained Cline’s objections to technical errors but declined to
preclude the “investigative narrative.”
¶15 At the sentencing, the State argued that the offenses in Cline’s
2017 case constituted two prior felony convictions. The State also argued
that consecutive sentences would be appropriate because Cline harmed
multiple victims. Acknowledging the disposition in the 2017 case, Cline
contended that the offenses, in that case, represented only one prior felony
conviction and should run concurrently with her sentences in this case.
¶16 Noting that the 2017 case involved one victim, the superior
court agreed with Cline and found the 2017 case constituted one prior
felony conviction, or the equivalent of the first felony offense, under A.R.S.
§ 13-703(A).3 The court balanced the aggravating and mitigating factors,
including the jury’s findings and Cline’s family and community support.
Based on these factors, the court sentenced Cline as a category one
repetitive offender on Counts 1 and 2, imposing slightly mitigated terms of
4.5 years’ imprisonment, and as a category two repetitive offender on
Counts 3 and 4, imposing slightly mitigated terms of 7 years’ imprisonment.
See A.R.S. § 13-703(A), (H)–(I). The court ordered the sentences to be served
3 We cite versions of the sentencing statutes in effect at the time of the
offenses. See A.R.S. § 1-246 (“[T]he offender shall be punished under the law
in force when the offense was committed.”).
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concurrently to each other but consecutively to her sentences in the 2017
case. The court awarded two days of presentence incarceration credit.
¶17 After sentencing, Cline moved to modify the sentence,
arguing that the court erred by (1) failing to conduct a trial on her prior
convictions before imposing sentence enhancements; (2) running her
sentences consecutively to those in the 2017 case; (3) failing to calculate her
presentence incarceration credit accurately; (4) considering false
information in the presentence report; and (5) denying her the right to
allocution. The court found the motion entitled Cline to a priors trial with
oral argument.
¶18 After the priors trial, the court found sufficient evidence of
Cline’s prior felony conviction in the 2017 case. In reaching its decision, the
court reviewed the State’s pretrial allegation of Cline’s prior felony
conviction and the certified copies of the felony convictions and booking
information. The court also noted that it presided over the 2017 case. The
court found consecutive sentences in the current and 2017 cases appropriate
because they involved separate victims. As a result, Cline was only entitled
to presentence incarceration credit for two days spent in custody for this
case. The court found no merit to Cline’s claims about the presentence
report and right to allocution, noting that she fully litigated all perceived
sentencing issues. Thus, the court denied Cline’s motion to modify the
sentence.
¶19 Cline timely appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
A. The Superior Court Had Subject Matter Jurisdiction.
¶20 Cline argues the superior court erred by denying her motion
to dismiss for lack of subject matter jurisdiction, claiming the indictment
did not confer jurisdiction on the “criminal court.” She contends
jurisdiction vested solely in the probate court. We review challenges to a
court’s jurisdiction de novo. Lay v. Nelson, 246 Ariz. 173, 175, ¶ 8 (App. 2019).
¶21 “‘[S]ubject matter jurisdiction’ refers to a court’s statutory or
constitutional power to hear and determine a particular type of case.” State
v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010). The Arizona constitution grants
the superior court jurisdiction over all “[c]riminal cases amounting to
felony.” Ariz. Const. art. 6, § 14(4); see also A.R.S. § 12-123(A). As outlined
in A.R.S. § 13-108(A)(1), jurisdiction is established if the “[c]onduct
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constituting any element of the offense or a result of such conduct occurs
within this state.” That a defendant may have a parallel civil case involving
the same conduct does not divest the court of jurisdiction. See State v. Ott,
167 Ariz. 420, 428 (App. 1990) (“No federal or state constitutional rule
prohibits parallel civil and criminal proceedings.”); see also Acolla v. Peralta,
150 Ariz. 35, 38 (App. 1986) (There are many “instances in which civil
remedies are permitted for acts which also carry criminal penalties.”).
¶22 Contrary to Cline’s assertion, the indictment invoked the
subject matter jurisdiction of the superior court. See State v. Buckley, 153
Ariz. 91, 93 (App. 1987) (filing of indictment confers jurisdiction on the
court). The State filed criminal charges against Cline for fraudulent schemes
and artifices and theft, both of which are felony offenses. A.R.S.
§§ 13-2310(A), 13-1802(A), (G). The indictment for those charges triggered
the court’s jurisdiction to try and sentence Cline. See State v. Rodriguez, 205
Ariz. 392, 395, ¶ 7, n.1 (App. 2003) (The court generally has “jurisdiction
over any criminal case in which the defendant is charged by indictment or
information with a felony.”). Cline’s involvement in the parallel probate
case did not strip the court of jurisdiction in her criminal case. See Ott, 167
Ariz. at 428. The court correctly exercised its jurisdiction under A.R.S.
§ 13-108(A)(1).
B. The Superior Court Did Not Err by Denying Cline’s Motion for
Judgment of Acquittal.
¶23 Cline challenges the sufficiency of the evidence supporting all
counts, arguing the superior court erred by denying her motion for
judgment of acquittal under Rule 20(a)(1) and (b)(1). We review the court’s
ruling on Cline’s motion for judgment of acquittal de novo. State v. West, 226
Ariz. 559, 562, ¶ 15 (2011).
¶24 Rule 20 allows a defendant to move for a judgment of
acquittal before or after the verdict “if there is no substantial evidence to
support a conviction.” Ariz. R. Crim. P. 20(a)(1), (b)(1). Substantial evidence
“is such proof that ‘reasonable persons could accept as adequate and
sufficient to support a conclusion of defendant’s guilt beyond a reasonable
doubt.’” State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125
Ariz. 417, 419 (1980)). The critical inquiry is whether “any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This inquiry
does not permit the reviewing court to reweigh conflicting evidence or
assess witness credibility. State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38
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(App. 2013). Cline argues the superior court misapplied the law in making
its determination and later in instructing the jury.
¶25 To secure a conviction for fraudulent schemes and artifices,
the State must prove the defendant “knowingly obtain[ed] any benefit by
means of false or fraudulent pretenses, representations, promises or
material omissions.” A.R.S. § 13-2310(A). The Arizona Supreme Court has
adopted a broad view of the statute. It concluded that fraudulent schemes
and artifices can be “accomplished either by active misrepresentations, or
omitting material facts which defendant knew were being misunderstood,
or by stating half-truths, or by any combination of these methods.” State v.
Haas, 138 Ariz. 413, 423–24 (1983). The evidence at trial showed that,
through misrepresentation and omission, Cline misled those associated
with the Nelson and Porter Trusts to gain a benefit. Cline represented
herself as a fiduciary, promising to function within that role ethically and
in the best interest of the trusts. Cline then used her authority as trustee to
sell trust property and transfer funds from the trust to her accounts. Cline
made material omissions in her accounting, using vague and inflated
numbers to conceal her misuse of trust assets. Even if some of the
accounting contained “half-truths,” the elements of A.R.S. § 13-2310(A)
would still be satisfied. See id. at 423.
¶26 To secure a conviction for theft, the State had to prove that,
without lawful authority, the defendant knowingly controlled the
“property of another with the intent to deprive the other person of such
property.” A.R.S. § 13-1802(A)(1). Theft of property valued at $25,000 or
more is a Class 2 felony. A.R.S. § 13-1802(G). The statute applies to any
“unlawful ‘acquisition’ of property belonging to others.” State v. Tramble,
144 Ariz. 48, 52 (1985). The evidence at trial showed that Cline transferred
most of the funds from the Nelson and Porter Trusts to her accounts,
intending to deprive beneficiaries of trust assets. Cline’s role as trustee did
not give her lawful authority, as she contends, to drain the trust accounts of
assets or sell trust property without distributing the proceeds to the
beneficiaries. The evidence satisfied the elements of A.R.S. § 13-1802(A)(1).
¶27 The court reached a legally correct decision by denying the
motion for judgment of acquittal and provided jury instructions consistent
with the relevant statutes and Revised Arizona Jury Instructions (“RAJI”).
See RAJI Stat. Crim. 18.02.01, 23.10 (5th ed. 2019); see also State v. Noriega, 187
Ariz. 282, 284 (App. 1996) (“The purpose of jury instructions is to inform
the jury of the applicable law in understandable terms.”). The superior
court did not err by denying Cline’s motion for judgment of acquittal under
Rule 20(a)(1) and (b)(1).
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C. The Superior Court Did Not Commit Misconduct.
¶28 Cline argues the superior court displayed a pattern of
hostility toward her, “systematically” denying her motions, applying the
law incorrectly, and considering facts outside the scope of the case. She also
contends that the court acted “in the ‘absence of jurisdiction,’” and all
rulings made after learning of the jurisdictional defect constituted
misconduct. Because Cline did not raise these issues below, she is not
entitled to relief absent fundamental, prejudicial error. State v. Escalante, 245
Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).
¶29 The right to a fair trial necessarily includes “the right to have
the trial presided over by a judge who is completely impartial and free of
bias or prejudice.” State v. Neil, 102 Ariz. 110, 112 (1967). “Bias and prejudice
mean a hostile feeling or spirit of ill will, or undue friendship or favoritism,
toward one of the litigants.” State v. Hill, 174 Ariz. 313, 322 (1993). “Judicial
rulings alone do not support a finding of bias or partiality without a
showing of an extrajudicial source of bias or deep-seated favoritism.” State
v. Macias, 249 Ariz. 335, 342, ¶ 22 (App. 2020). Judges are presumptively
impartial, and overcoming that presumption requires proof of actual, not
speculative, bias. Id.¶30 Cline has failed to overcome the presumption. The court gave
Cline ample time to litigate evidentiary and procedural issues. The court
allowed her to file untimely pretrial motions and granted some. The court
correctly ruled on the motion to dismiss for lack of subject matter
jurisdiction, acting within its authority to try and sentence Cline. The court
heard multiple post-verdict and post-sentencing motions, allowing Cline to
litigate issues, present mitigation, and challenge her sentences’ legality. The
court did not appear partial, biased, or hostile, giving Cline leeway to
present her chosen defense and litigate perceived issues. We find no error,
fundamental or otherwise.
D. The State Did Not Commit Prosecutorial Error.
¶31 Cline contends that the cumulative effect of multiple
instances of prosecutorial error prevented her from receiving a fair trial.
Although Cline asserted claims of prosecutorial error in post-verdict
pleadings, she did not raise the issues before or during the trial. We review
solely for fundamental error because she failed to object to the alleged
prosecutorial error. State v. Vargas, 251 Ariz. 157, 163, ¶ 10 (App. 2021)
(citing Escalante, 245 Ariz. at 140, ¶ 12). We assess each allegation
independently and consider whether they cumulatively led to an unfair
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trial. State v. Arias, 248 Ariz. 546, 556, ¶ 32 (App. 2020). A defendant will not
prevail on such a claim without first showing that an error occurred. See id.
at 555, ¶ 31.
1. The State’s Closing Arguments Were Not Improper.
¶32 Cline argues that the State shifted the burden of proof in
closing arguments by commenting on her failure to present evidence and
referred to facts not in evidence by discussing how the sparse nature of her
accounting demonstrated culpability.
¶33 Counsel is given “wide latitude” in closing arguments to the
jury. State v. Comer, 165 Ariz. 413, 426 (1990). Counsel may summarize
properly admitted evidence, ask the jury to draw reasonable inferences, and
suggest conclusions. State v. Bible, 175 Ariz. 549, 602 (1993). Although the
State must not shift the burden of persuasion to the defense, Sandstrom v.
Montana, 442 U.S. 510, 523–24 (1979), the State may “comment on the
defendant’s failure to present exculpatory evidence,” State ex rel. McDougall
v. Corcoran, 153 Ariz. 157, 160 (1987). In determining whether the State’s
closing arguments created an error, we consider “the context in which the
statements were made as well as ‘the entire record and . . . the totality of the
circumstances.’” State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012) (quoting State
v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003)).
¶34 The State’s comments fell within the latitude afforded to
counsel in closing arguments. The State’s suggestion that Cline created the
accounting “after the fact” to conceal the offenses aligned with the admitted
documents, which contained gaps, omissions, and non-specific dates. See
State v. Corona, 188 Ariz. 85, 91 (App. 1997) (Argument of counsel is
permitted if it is “sufficiently linked to the evidence.”). The jury could have
drawn reasonable inferences that the accounting demonstrated culpability
and showed Cline’s attempt to make large transfers of funds appear
legitimate. Nor did the State commit error by pointing out that Cline could
have provided the authorities with exculpatory documentation. As the
superior court noted, the argument constituted proper rebuttal. See State v.
Edmisten, 220 Ariz. 517, 525, ¶ 25 (App. 2009) (The court found the
prosecutor’s rebuttal argument appropriate when the defendant “opened
the door to such argument, and the prosecutor was entitled to respond.”).
The State did not argue facts not in evidence and did not engage in
burden-shifting.
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2. The State Did Not Present False Testimony.
¶35 Cline contends that the State introduced perjured testimony
in the grand jury proceedings and at the trial, claiming the State’s witnesses
gave false statements about the location of the offenses and conduct related
to the Kennedy Trust. While the State must not knowingly use false or
perjured testimony to obtain a conviction, an inconsistency in witness
testimony does not constitute perjury. State v. Ferrari, 112 Ariz. 324, 334
(1975). Such testimony is simply fodder for cross-examination or
impeachment, to be considered by the jury in assessing witness credibility.
See id. Even so, the prejudicial impact of materially false testimony can be
cured if corrected through further witness examination. See State v.
Holsinger, 115 Ariz. 89, 92–93 (1977).
¶36 The State did not present false testimony at any stage of the
proceedings. The lead detective testified to the grand jury that the offenses
occurred in Yavapai County. This proved true at trial when the State
presented evidence that trust property, beneficiaries, and the execution of
trusts fell within Yavapai County. The detective did not commit perjury.
See A.R.S. § 13-109(A) (“Criminal prosecutions shall be tried in the county
in which conduct constituting any element of the offense or a result of such
conduct occurred.”).
¶37 At trial, parties associated with the Kennedy Trust gave
conflicting testimony about Cline’s purported misuse of funds. Cline
impeached the witnesses with evidence showing she made legitimate
purchases for Kennedy’s benefit. As Cline concedes, she cured
inconsistencies in this testimony and later obtained dismissals for all counts
associated with the Kennedy Trust. Cline has shown no error.
¶38 Having addressed each instance in turn, we find no error.
Without such a finding, Cline has failed to show the cumulative effect of
the alleged conduct so infected her trial with unfairness that she was denied
due process.
E. The Superior Court Did Not Commit Reversible Sentencing Error.
¶39 Cline raises several alleged sentencing errors. We generally
review sentencing claims for an abuse of discretion, State v. Jenkins, 193
Ariz. 115, 121, ¶ 25 (App. 1998), but we review un-objected sentencing
orders for fundamental error, see Escalante, 245 Ariz. at 140, ¶ 12. We review
the superior court’s application of sentencing statutes and issues of
statutory interpretation de novo. State v. Lambright, 243 Ariz. 244, 249, ¶ 9
(App. 2017). We will not remand for resentencing if the sentences fall within
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the prescribed statutory range. State v. Munninger, 213 Ariz. 393, 397, ¶ 12
(App. 2006).
1. The Record Establishes Cline’s Prior Felony Conviction.
¶40 Cline argues the superior court erred by finding she had one
non-historical prior felony conviction, incorrectly sentencing her as a
repetitive offender under A.R.S. § 13-703(A) and conducting a priors trial
after sentencing. Cline does not explicitly challenge the accuracy of the
conviction records presented at the priors trial, nor does she argue the State
would be unable to prove the conviction if remanded for resentencing.
¶41 To enhance a defendant’s sentence with a prior conviction,
the defendant must admit, or the State must prove, the existence of the
conviction. State v. Morales, 215 Ariz. 59, 61, ¶¶ 6–7 (2007). Without such
evidence, the imposition of an enhanced sentence is fundamental error. See
id. at 61–62, ¶ 10. The typical remedy for such error would be to remand for
“a resentencing hearing at which the state will be put to its burden of
proving the prior conviction.” Id. at 62, ¶ 13. But we need not remand for
resentencing when the record proves the existence of the prior felony
conviction. See id. Even without a priors trial, resentencing is not required
if “there would be no point in remanding for a hearing” to admit the
conviction records again. Id.¶42 First, Cline’s prior can be sufficiently gleaned from the
presentencing report and sentencing record. The superior court presided
over the trial in the 2017 case, the parties acknowledged the disposition of
the case several times, and Cline only argued that the offenses in the case
constituted one non-historical prior felony conviction. Agreeing with Cline,
the court found the non-historical prior felony conviction represented the
first offense, Counts 1 and 2 represented the second, category one repetitive
offense, and Counts 3 and 4 represented the third, category two repetitive
offense. These sentences comply with the versions of A.R.S. § 13-703 in
effect during the offenses. See 2016 Ariz. Sess. Laws, ch. 43, § 2; 2015 Ariz.
Sess. Laws, ch. 74, § 2; 2013 Ariz. Sess. Laws, ch. 55, § 3. We need not
remand for resentencing when the record establishes the prior conviction.
See Morales, 215 Ariz. at 62, ¶ 13.
¶43 Second, the superior court’s decision to conduct a
post-sentencing priors trial does not warrant resentencing. Allowing
further testimony and correcting potential errors is the remedy afforded a
motion for new sentencing. Cline does not deny that the jury found her
guilty in the 2017 case, and she does not claim the State would be unable to
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prove the existence of her conviction. See State v. Miller, 215 Ariz. 40, 44, ¶ 13
(App. 2007) (Remand was unnecessary when the defendant failed to
“suggest that he was not convicted of the felonies at issue or that the state
would have been unable to produce the necessary documentary
evidence.”).
2. Remand Is Not Required Under the Applicable Version of
A.R.S. § 13-711(A).
¶44 Cline argues the superior court failed to provide an adequate
reason for running her sentences consecutively to those in the 2017 case, as
required by A.R.S. § 13-711(A).
¶45 Under the version of A.R.S. § 13-711(A) in effect at the time of
the offenses, “if multiple sentences of imprisonment are imposed on a
person at the same time, the sentence or sentences imposed by the court shall
run consecutively unless the court expressly directs otherwise, in which
case the court shall set forth on the record the reason for its sentence.” 2008
Ariz. Sess. Laws, ch. 301, § 27 (emphasis added). The language of this
statute is triggered only when multiple sentences are imposed “at the same
time.” Id. Not when, as here, the superior court orders the sentences to be
served consecutively to sentences imposed in another case. Nothing in
A.R.S. § 13-711(A) required the court to impose concurrent sentences in
both cases or to articulate its reasons. Moreover, even if the statute required
a basis for imposing a sentence consecutively to another case, the court
stated its reasons: multiple victims. No more explanation was needed.
3. The Superior Court Did Not Err When Awarding
Presentence Incarceration Credit.
¶46 Cline contends that she is entitled to presentence
incarceration credit for all time spent in custody before and after sentencing
in the 2017 case. A defendant sentenced to consecutive sentences has a right
to credit on just one sentence, “even if the defendant was in custody
pursuant to all of the underlying charges prior to trial.” State v. McClure, 189
Ariz. 55, 57 (App. 1997). A defendant is not entitled to “double credit” for
time served. State v. Cuen, 158 Ariz. 86, 88 (App. 1988). Because the superior
court ran Cline’s sentences consecutively to those in the 2017 case, she is not
entitled to “double credit” for time applied to her sentences in that case. We
find no error in the court’s award of two days’ credit.
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4. Cline Failed to Raise Additional Claims of Sentencing Error
Adequately.
¶47 Finally, Cline raises several other alleged sentencing issues
without sufficient argument or citation to the record, including claims the
superior court used false information in the presentence report, denied her
the right to allocution, and incorrectly interpreted sentencing statutes.
¶48 “Failure to argue a claim usually constitutes abandonment
and waiver of that claim.” State v. Carver, 160 Ariz. 167, 175 (1989); see also
Ariz. R. Crim. P. 31.10(a)(7)(A) (Arguments must contain “supporting
reasons for each contention” and “citations of legal authorities and
appropriate references to the portions of the record on which the appellant
relies.”). Waiver aside, the record does not suggest any defects at sentencing
requiring reversal. Cline had the chance to litigate any perceived pre- and
post-sentencing issues fully. The superior court considered proper factors
when imposing sentences within the prescribed statutory range and gave
Cline considerable leeway in pleading for leniency. See Munninger, 213 Ariz.
at 397, ¶¶ 11–12. None of the alleged errors require remand for
resentencing.
CONCLUSION
¶49 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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