State v. Fagnant

839 P.2d 430, 173 Ariz. 10, 105 Ariz. Adv. Rep. 33, 1992 Ariz. App. LEXIS 19
CourtCourt of Appeals of Arizona
DecidedJanuary 30, 1992
DocketNos. 1 CA-CR 90-1117, 1 CA-CR 90-1118
StatusPublished
Cited by1 cases

This text of 839 P.2d 430 (State v. Fagnant) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fagnant, 839 P.2d 430, 173 Ariz. 10, 105 Ariz. Adv. Rep. 33, 1992 Ariz. App. LEXIS 19 (Ark. Ct. App. 1992).

Opinion

OPINION

GRANT, Presiding Judge.

Steven P. Fagnant (“defendant”) appeals from sentences imposed following his guilty pleas to charges of trafficking in [11]*11stolen property and fraudulent schemes and artifices, both class 2 felonies.

FACTS

The charges for trafficking in stolen property arose from the following facts. The defendant was employed at an art gallery in Scottsdale. During his employment, art materials and artwork were reported missing from the gallery. When the Scottsdale police investigated the report, they found several of the items in defendant’s possession. The police also discovered that a stolen painting had been sold by defendant to a third person. Most of the items were recovered, although many were in poor condition.

Defendant was originally indicted on four counts of theft, all class 3 felonies, and two counts of trafficking in stolen property, class 2 felonies. He agreed to plead guilty to one count of trafficking in stolen property. In return, the state agreed to drop the remaining five charges. The agreement further stipulated that defendant would not receive probation, and that he would pay restitution for losses stemming from all charges, not to exceed $10,000.

In an unrelated matter, defendant was charged with fraudulent schemes and artifices based on the following facts. Tempe police received a report from Valley National Bank regarding stolen credit cards. The cards were the property of James R. R. reported the cards stolen when he noticed that nearly $20,000 in unauthorized charges appeared on his monthly statement in September of 1988. Police investigations identified defendant as the person who had used the credit cards at several Phoenix-area hotels and restaurants.

Defendant was charged by indictment with one count of fraudulent schemes and artifices, a class 2 felony, one count of theft, a class 3 felony, and three counts of forgery, all class 4 felonies. Pursuant to a plea agreement, the latter four charges were dismissed, and defendant pled guilty to fraudulent schemes and artifices. He also agreed to pay restitution to Valley National Bank for its losses stemming from the unauthorized use of the credit cards. This agreement also stipulated that probation would not be available.

Defendant was sentenced to an aggravated term of nine years for the trafficking in stolen property charge, and an aggravated term of nine years for the fraudulent schemes charge. The sentences were to be served concurrently.

DISCUSSION OF ISSUES

Defendant challenges his sentences on four grounds:

1. at the time of sentencing, the circumstances used to aggravate defendant’s sentences were not adequately proven;
2. the trial court improperly used charges outstanding against defendant in the state of Washington as an aggravating circumstance;
3. the trial court improperly used a pri- or felony conviction in the state of Washington to aggravate defendant’s sentences;
4. the trial court improperly considered the fact that defendant’s crimes were for pecuniary gain.

Based on these arguments, defendant claims that the trial court improperly weighed the aggravating and mitigating circumstances, and therefore improperly imposed aggravated sentences. We review the sentence to determine whether the trial judge abused his discretion in imposing sentence. State v. Gannon, 130 Ariz. 592, 638 P.2d 206 (1982).

At the sentencing proceeding, the judge stated that he found aggravating circumstances in the following facts: multiple felonies were involved; defendant was previously convicted of a felony in the state of Washington; the victims suffered substantial economic losses as a result of the crimes; and the offenses were committed for pecuniary gain. The judge also stated that he had considered the mitigating circumstances presented by the defendant, including evidence that the defendant suffered from a significant substance abuse problem. The judge also considered, for mitigation purposes, the recommendations [12]*12of W.E. Fidlar, Ph.D., a psychologist who had examined the defendant.

The defendant claims that the aggravating circumstances were not properly established. Defendant argues that no “proof” of the aggravating circumstances was presented to the trial court, and therefore the court “had no basis in fact to support” the aggravating circumstances. The aggravation/mitigation statute contains no prerequisite standard of “proof.” The relevant statute, Ariz.Rev.Stat.Ann. (“A.R.S.”) section 13-702(C), states:

The upper or lower term ... may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.

The trial judge stated on the record the reasons for aggravation, and related the fact that he had considered all of the evidence produced, including the presentence report and other information provided to him prior to sentencing. The statute allows the judge to consider “any evidence or information” at his disposal. The sentencing judge has wide discretion to review a variety of sources and types of information in determining the extent of punishment. State v. Ross, 144 Ariz. 154, 157, 696 P.2d 706, 709 (App.1984). As to the aggravating circumstances that multiple felonies were involved and that the victims suffered substantial economic damage we find no abuse of discretion.

Defendant’s second claim is that during the change of plea hearing, and again at sentencing, reference was made by counsel to outstanding charges for a crime in Washington. Defendant claims that the outstanding charges were “on the mind” of the sentencing judge, concluding that “it would be contrary to common sense” to believe that the judge did not consider those charges when sentencing defendant. During the mitigation hearing, the judge told counsel the following: “While there was something in the presentence report that said the defendant has a pending warrant, and I know about it, in the State of Washington, I won’t consider anything about that case in the current sentencing because he hasn’t been convicted on that at all.” At the subsequent sentencing proceeding, the judge asked defendant’s counsel whether the disposition of those charges was known. Defense counsel answered that it was not. The judge did not mention the charges after that time. At the time of sentencing, the judge specifically stated the reasons for aggravation, and in doing so he did not mention the outstanding charges. Therefore, there is no basis whatsoever to find that the judge used the offenses alleged in the outstanding charges to impose the aggravated sentence. If an intervening conviction had occurred, that fact could have been considered by the judge. We find no error in the judge’s inquiry regarding those charges.

Defendant next argues that his prior felony conviction in the state of Washington was improperly used to aggravate his sentences.

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Related

State v. Fagnant
860 P.2d 485 (Arizona Supreme Court, 1993)

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Bluebook (online)
839 P.2d 430, 173 Ariz. 10, 105 Ariz. Adv. Rep. 33, 1992 Ariz. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fagnant-arizctapp-1992.