IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA

Respondent,

v.

BENNETT LAQUAN WILLIAMS,

Petitioner.

No. CR-23-0068-PR

Filed August 6, 2024

Appeal from the Superior Court in Maricopa County

The Honorable Rosa Mroz, Judge (Deceased)

No. CR2016-002220-001

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One

254 Ariz. 516 (App. 2023)

VACATED IN PART

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Quinton S. Gregory

(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Randal McDonald (argued), Robert J. Dormady, Supervising Attorneys; 

Andi Humphreys; Hayley Worrell, Victoria Sturdy, Rule 39(c) Certified 

Law Students, Sandra Day O’Connor College of Law Post-Conviction 

Clinic, Phoenix, Attorneys for Bennett Laquan Williams

Daniel Fenzel, Deputy Legal Advocate, Maricopa County Office of the 

Legal Advocate, Phoenix, Attorneys for Amicus Curiae Maricopa County 

Office of the Legal Advocate 
 STATE V. WILLIAMS

Opinion of the Court

2

JUSTICE BRUTINEL authored the Opinion of the Court, in which CHIEF

JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ, and JUSTICES BOLICK, 

BEENE, KING, and PELANDER (Ret.) joined.*

JUSTICE BRUTINEL, Opinion of the Court:

¶1 A defendant’s plea agreement must have a factual basis to be

accepted by the trial court. Ariz. R. Crim. P. 17.3(b). Here, the State 

concedes that the passage of Proposition 207, the Smart and Safe Arizona 

Act, constituted a change in the law allowing the defendant, Bennett

Laquan Williams, to expunge his prior marijuana conviction, which served 

as part of the factual basis for his subsequent guilty plea. We hold that 

when a defendant successfully attacks a previously accepted guilty plea 

based on a change in the plea’s factual basis, the underlying plea agreement

is voidable if the defendant is subsequently resentenced to a term different

than what was agreed to in the plea agreement.

I. BACKGROUND

¶2 In 2016, the State of Arizona charged Williams with fourteen

felonies, including sex trafficking, pandering, transporting persons for 

prostitution purposes, and various classes of misdemeanor assault. The 

State alleged that he was on probation when he committed the crimes. The 

State also alleged Williams had seven historical felony convictions. These 

convictions included California convictions for theft and possession of an 

assault weapon, Kansas convictions for possession with intent to distribute 

cocaine, a Texas conviction for possession of a controlled substance,

and—pertinent here—an Arizona use or possession of marijuana 

conviction from 2004.

¶3 In return for his guilty plea as a repeat offender to two counts 

of sex trafficking, and his avowal that he had “no more than seven prior 

felony convictions in any jurisdiction,” the State agreed to dismiss the other 



 Justice William G. Montgomery has recused himself from this case. 

Pursuant to article 6, section 3 of the Arizona Constitution, Justice John 

Pelander (Retired) of the Arizona Supreme Court was designated to sit in 

this matter.
 STATE V. WILLIAMS

Opinion of the Court

3

twelve counts of Williams’s indictment as well as the allegation that he

committed the crimes while on probation. The State further agreed to 

dismiss any allegations of prior felonies, except the Arizona use or 

possession of marijuana conviction from 2004.

¶4 Subsequently, in 2017, the superior court accepted Williams’s 

guilty plea to two counts of felony sex trafficking as a repeat offender. Each 

count was a Class 2, non-dangerous offense, which was made repetitive by, 

i.e., enhanced by—and exclusively by—the 2004 marijuana conviction. 

State v. Williams, 254 Ariz. 516, 518 ¶ 1 (App. 2023). In the plea agreement, 

the parties stipulated to two, concurrent, twelve-year sentences.

¶5 After accepting the plea agreement and finding one 

mitigating factor and four aggravating factors, pursuant to that agreement 

and A.R.S. § 13-703, the superior court sentenced Williams as a prior 

offender “with a slightly aggravated term” to twelve years total of 

incarceration. See Williams, 254 Ariz. at 518 ¶ 1; § 13-703(B), (I) (providing 

that, for a class two offense, “[a] category two repetitive offender shall be 

sentenced” to a minimum of 6 years, presumptive sentence of 9.25 years, 

maximum of 18.5 years, and up to 23 years for aggravated offenses).

¶6 In 2020, Arizona voters adopted Proposition 207 (the “Act”), 

which authorizes expungement of adult convictions for the possession or 

use of small amounts of marijuana. Williams, 254 Ariz. at 518 ¶ 2; see also

A.R.S. § 36-2862 (codifying the Act). In November 2021, Williams 

successfully obtained a court order vacating and expunging his 2004 

marijuana conviction pursuant to the Act. Williams, 254 Ariz. at 518 ¶ 2. 

Subsequently, Williams petitioned for post-conviction relief (“PCR”) under 

Arizona Rule of Criminal Procedure 33.1(g), claiming that his convictions 

and resulting sentences were invalid because there was no longer a valid 

prior offense to enhance his sentence under the plea agreement. Williams, 

254 Ariz. at 518 ¶ 2. The superior court dismissed the petition, ruling that

the Act did not “provide relief for prior convictions [or] the resulting 

sentencing that occurred” based on those convictions following their

expungement. Id.

¶7 The court of appeals reversed, vacated Williams’s plea 

agreement, reinstated the original charges against him, and remanded. Id.

at 521 ¶¶ 16–17. First, the court of appeals reasoned that the Act applied 

retroactively and allowed Williams to attack his conviction, under Rule 
 STATE V. WILLIAMS

Opinion of the Court

4

33.1(g), based on his plea to a sentence that was enhanced by a crime that 

no longer existed. Id. at 519–20 ¶¶ 11, 13. Then, the court applied contract 

law principles to find that the plea agreement’s terms were materially 

altered, thereby frustrating the agreement’s purpose. Id. at 520–21 ¶ 15. 

And then the court did something neither party requested: it found the plea 

agreement void, based on its belief that when the agreement’s purpose has 

been frustrated by the lack of a factual basis underlying the plea, the court 

“lacks authority to order Williams to be resentenced [under that agreement]

pursuant to a modified plea.” Id. ¶¶ 14–17.

¶8 The State petitioned for review, and Williams agreed that the 

court of appeals erred in vacating the plea agreement. In fact, the State and 

Williams disagreed only on whether the State can allege a new prior 

conviction under the plea agreement, which the agreement’s terms 

precluded.

¶9 This Court granted review to address two issues. First, 

whether the court of appeals erred by finding Williams’s plea agreement 

void because of the expungement of his sentence-enhancing marijuana 

conviction pursuant to A.R.S. § 36-2862. Second, whether the State may 

unilaterally allege a different prior conviction to enhance Williams’s 

sentence under the existing plea agreement. We have jurisdiction under

article 6, section 5(3) of the Arizona Constitution.

II. DISCUSSION

A. The Act And The PCR Petition

¶10 “We review a trial court’s ruling on a PCR petition for an 

abuse of discretion, which occurs if the court makes an error of law . . . .” 

State v. Bigger, 251 Ariz. 402, 407 ¶ 6 (2021). “We review legal conclusions 

de novo.” Id.

¶11 Both in this Court and in the court of appeals, the State 

conceded that Williams was entitled to relief under Rule 33.1(g). Like the 

court of appeals, we analyze Williams’s claim under Rule 33.1(g) based on 

that concession. Under Rule 33.1(g), the court of appeals did not abuse its 

discretion in reversing the superior court’s denial of Williams’s PCR

petition because, following the marijuana conviction’s expungement, the 

factual basis for the crimes that Williams pleaded guilty to—two counts of 
 STATE V. WILLIAMS

Opinion of the Court

5

sex trafficking as a repeat offender—no longer existed. See Ariz. R. Crim. P. 

33.1(g) (providing that PCR is appropriate when “there has been a 

significant change in the law that, if applicable to the defendant’s case, 

would probably overturn the defendant’s judgment or sentence”).

¶12 By its plain terms, the Act allowed Williams to expunge his 

2004 marijuana conviction. See A.R.S. § 36-2862(C)(1)(a)–(b) (“If the court 

grants a petition for expungement the signed order . . . shall . . . vacate the 

judgment of adjudication or conviction [and] [s]tate that it expunges any 

record of the petitioner’s arrest, charge, conviction, adjudication and 

sentence.” (cleaned up)); § 36-2862(E) (“An individual whose record 

of . . . conviction or sentence is expunged pursuant to this section may state 

that [he or she] has never been . . . convicted of, or sentenced for the crime 

that is the subject of the expungement.”); see also Garcia v. Butler, 251 Ariz. 

191, 194 ¶ 12 (2021) (“A statute’s plain language best indicates legislative 

intent . . . .” (quoting Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, 

195 ¶ 9 (2016))).

¶13 Before the Act, knowing use or possession of marijuana was 

a felony and, even if set aside, the conviction could be alleged as a prior 

offense. A.R.S. § 13-3405(A)(1), (B)(1)–(3) (2019); A.R.S. § 13-905(E)(3) 

(2019) (stating that a conviction that has been set aside may still be “[u]sed 

as a prior conviction”). However, after the Act, use or possession of 

marijuana became legal within certain limits, A.R.S. § 36-2852, and prior 

convictions arising from such use or possession must be vacated and 

expunged on request and cannot be used as prior convictions, 

§ 36-2862(C)(1)–(2), (E). The State concedes in this case that the Act 

significantly changed the law and marks a clear break with prior law

because it allowed Williams to expunge the marijuana conviction, making 

his enhanced sentence retroactively illegal. See State v. Shrum, 220 Ariz. 115, 

118–19 ¶¶ 15–17 (2009) (noting that, for a Rule 32 PCR petition to be granted 

on the basis of “a significant change in the law,” the new law must: (1) 

clearly break from past law and (2) have retroactive application); see also 

State v. Towery, 204 Ariz. 386, 389 ¶ 5 (2003) (noting that for purposes of a 

Rule 32 PCR petition, the court must determine whether the new law 

“applies retroactively to the [defendant’s] sentences).
 STATE V. WILLIAMS

Opinion of the Court

6

B. Frustration Of Purpose

¶14 Although the court of appeals did not err in concluding that

Williams was entitled to post-conviction relief, it erred in vacating the plea 

agreement. Specifically, the court misapplied contract law’s frustration of 

purpose doctrine to void Williams’s plea agreement. See Williams, 254 Ariz. 

at 520–21 ¶¶ 14–17.

¶15 “[P]rinciples of contract law typically govern plea 

agreements,” State v. Robertson, 249 Ariz. 256, 262 ¶ 24 (2020), because, like 

commercial contracts, plea agreements represent “bargained-for quid pro 

quo[s],” United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988). 

Therefore, “[p]lea agreements are contractual in nature and subject to 

contract interpretation.” Coy v. Fields, 200 Ariz. 442, 445 ¶ 9 (App. 2001). 

Issues of law arising out of contract are subject to de novo review. JTF 

Aviation Holdings Inc. v. CliftonLarsonAllen LLP, 249 Ariz. 510, 513 ¶ 14 

(2020).

¶16 We conclude that if a party’s principal purpose in entering a 

plea agreement—in this case, the agreed-upon sentence—is frustrated, the 

agreement is voidable at the frustrated party’s election. See Restatement 

(Second) of Contracts § 265 cmt. a (Am. L. Inst. 1981) (identifying a principal 

purpose as one that “so completely [forms] the basis of [a] contract that, as 

both parties understand, without it the transaction would make little 

sense”); see, e.g., United States v. Bunner, 134 F.3d 1000, 1005 (10th Cir. 1998) 

(noting that after the government’s purpose in entering a plea agreement 

was frustrated, “[i]t could perform according to the letter of the plea 

agreement or it could seek discharge of its duties”).

¶17 Just as in commercial contracts, there are purposes 

underlying bargained-for plea agreements “absent which neither 

[defendants nor governments] would consent to be bound.” Bunner, 134 

F.3d at 1004. Defendants enter into plea agreements to avoid the 

uncertainty of a jury trial and the concomitant potential lengthy sentences

that could result from a conviction at trial. Id. at 1004–05. The government

may also want to avoid the uncertainty of a jury trial and obtain certainty 

in imposing a minimum level of criminal liability. See id. at 1005. To 

achieve their purposes, each party makes promises to induce the other to 

enter into the agreement and each party’s promises are consideration for 
 STATE V. WILLIAMS

Opinion of the Court

7

the agreement. See Carroll v. Lee, 148 Ariz. 10, 13 (1986) (“[A] promise for a 

promise constitutes adequate consideration . . . .”).

¶18 Here, Williams promised to plead guilty to two sex trafficking 

charges as a repeat offender with the guarantee that he would be sentenced 

to twelve years in prison. For the State, twelve years was the minimum 

level of criminal liability it wanted to impose on Williams. During 

sentencing, for example, the prosecutor told the sentencing judge that,

despite the agreement to a twelve-year sentence, “I don’t think 12 years is 

enough.” For both parties, the stipulated twelve-year sentence was a 

principal purpose of the agreement. Because Williams’s expungement and 

subsequent grant of post-conviction relief requires that he be resentenced,

that term of the plea agreement is now uncertain.

¶19 Under the agreement, Williams can no longer be resentenced 

as a repeat offender. Instead, he must “be sentenced as a first time felony

offender pursuant to [A.R.S.] § 13-702 for the first” sex trafficking offense 

“and as a category one repetitive offender for the second” offense because

those acts “were not committed on the same occasion.” § 13-703(A). But 

the twelve-year sentence agreed to in the plea agreement still falls within 

the sentencing range to which he is now subject. See § 13-702(D) (providing 

that a class 2 first-time felony offender may be sentenced to a minimum of 

4 years, presumptive sentence of 5 years, maximum of 10 years, and 12.5 

years for an aggravated sentence); § 13-703(H) (prescribing the same 

sentencing range for a class 2, category one offender as a class 2 offender 

sentenced under § 13-702(D)). And even if Williams is sentenced to less 

than twelve years for either count, the sentencing court may impose 

consecutive sentences so that Williams’s sentence could remain twelve total 

years. See A.R.S. § 13-711(A) (“[S]entences imposed by the court may run 

consecutively or concurrently . . . .”).

¶20 Thus, it is possible that Williams could be resentenced to the 

agreed-upon twelve years. If, however, Williams is sentenced to less than 

twelve years, one of the State’s primary purposes in entering the agreement 

will be frustrated.

¶21 Arizona courts recognize the frustration of purpose doctrine 

as “a justification for nonperformance of a contract,” Mobile Home Ests., Inc. 

v. Levitt Mobile Home Sys., Inc., 118 Ariz. 219, 222 (1978), “when a change in 

circumstances makes one party’s performance virtually worthless to the 
 STATE V. WILLIAMS

Opinion of the Court

8

other,” 7200 Scottsdale Rd. Gen. Partners v. Kuhn Farm Mach., Inc., 184 Ariz. 

341, 345 (App. 1995) (quoting Restatement § 265 cmt. a). Frustration of 

purpose, which allows the frustrated party to avoid performing their 

obligations under a contract, is merely a justification for nonperformance 

because “there is no [actual] impediment to performance by either party.” 

Restatement § 265 cmt. a. Therefore, an event that frustrates a party’s 

contractual purpose makes a contract voidable; that party can still affirm 

the agreement notwithstanding the occurrence of the frustrating event.

¶22 We adopt the four-part frustration of purpose test from the 

Restatement § 265 comments a and b. See 7200 Scottsdale Rd. Gen. Partners, 

184 Ariz. at 348. Under that test, a party claiming frustration of purpose 

must show: (1) that the principal purpose of the party in making the 

contract was frustrated and that both parties understood that purpose to be 

a principal one, (2) the frustration of purpose is “so severe that it is not” 

merely an assumed risk “under the contract,” (3) “the nonoccurrence of the 

frustrating event [was] a basic assumption” when the contract was formed,

and (4) the risk of the frustrating event was not placed on the party seeking 

relief. VEREIT Real Est., LP v. Fitness Int’l, LLC, 255 Ariz. 147, 154 ¶ 20 (App. 

2023) (quoting 7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 348).

¶23 Applying this test, the first element is clearly met. As noted 

above, the stipulated twelve-year sentence was a primary purpose for the 

State and Williams in entering into the plea agreement.

¶24 Second, if, upon resentencing, Williams receives less time 

than agreed upon because the Act allowed him to expunge his prior felony 

marijuana conviction, the passage of the Act would be a substantial risk 

beyond what the State ordinarily assumes when it offers a plea agreement. 

Indeed, Williams’s plea agreement was structured around the 2004 

marijuana conviction, and the State could easily have chosen a different 

prior conviction if the validity of the marijuana prior conviction was 

uncertain. In other words, any less time than what was agreed upon would 

severely frustrate the State’s purpose in imposing the minimum level of 

criminal liability it sought. Conversely, if Williams is sentenced to more 

time than agreed upon, his purpose in entering the agreement would be 

frustrated as a consequence of unforeseeable legislation.

¶25 Third, we agree with the State that the existing legal effect of 

the prior conviction was a basic assumption on which the plea agreement 
 STATE V. WILLIAMS

Opinion of the Court

9

was based. The State could not have reasonably foreseen that the Act 

would have been enacted by the electorate nor that the Act would provide

for expungements of prior convictions. Neither the State nor Williams was 

in a better position to know that a future change in the law would allow 

Williams to vacate the 2004 marijuana conviction.

¶26 And fourth, there is nothing in the agreement or the 

surrounding circumstances indicating that the risk of expungement of 

Williams’s prior conviction should be borne by the State. Although this 

Court has explained that the state “‘bears the risk’ of mistake should [a] 

plea result in an illegal sentence,” we have only said so when a plea 

agreement contained a legal error at the time the agreement was entered 

into. See Robertson, 249 Ariz. at 262 ¶ 24 (quoting Coy, 200 Ariz. 

at 446 ¶ 13)); see also Coy, 200 Ariz. at 446 ¶ 12 (quoting State v. Patience, 944 

P.2d 381, 387–88 (Utah App. 1997) (noting that the state “bears the risk” of 

a “mistake as to the law in effect at the time the parties entered into [a] plea 

agreement” (emphasis added))). Here, there was no legal error underlying 

the plea agreement at the time it was entered into.

¶27 The court of appeals correctly invoked the frustration of 

purpose doctrine but stopped short of properly applying it. Instead, the 

court found that voiding the plea agreement is mandatory whenever a prior 

conviction, upon which a plea is based, is expunged. Williams, 254 Ariz. 

at 520–21 ¶¶ 14–17 (applying State v. Szpyrka, 223 Ariz. 390, 393 ¶ 9 (App. 

2010), which voided a plea agreement in similar circumstances 

when—crucially—the State sought rescission from the agreement).

¶28 A guilty plea is void and vacating the plea is mandatory when 

there is no factual basis for the plea at the time the trial court accepts the 

agreement. Arizona Rule of Criminal Procedure 17.3(b) “provides that the 

trial court must determine that there is a factual basis for the entry of a 

guilty plea.” See State v. Johnson, 142 Ariz. 223, 224–25 (1984) (vacating a 

plea and order accepting the plea agreement when the “allegation of prior 

convictions” could not be sustained due to a lack of “a factual basis to 

support the allegation[s] . . . use[d] as enhancement” at the time the trial 

court accepted the plea);

1 Ariz. R. Crim. P. 17.3(b) (“The court must find a 

1 Johnson overruled State v. Lopez, 120 Ariz. 607 (1978), to the extent Lopez 

arguably precluded the state from reinstating the original charges or 
 STATE V. WILLIAMS

Opinion of the Court

10

factual basis for all guilty or no contest pleas. . . . The court may make this 

finding at the time of the plea, or . . . [when] judgment is entered.”).

¶29 But here, Williams’s prior conviction was valid at the time it 

was entered and the trial court properly accepted Williams’s plea and 

sentenced him according to the parties’ plea agreement. Rule 17.3(b) was 

satisfied because a factual basis existed for Williams’s plea agreement “at 

the time of the plea.”

¶30 As a result of the expungement and its retroactive application, 

Williams’s guilty plea as a repeat offender is void, but that does not 

necessarily invalidate the plea agreement. Rather, under the frustration of 

purpose doctrine, the plea agreement is voidable if the trial court fails to 

impose the originally agreed-upon twelve-year prison sentence. Thus, if 

Williams is sentenced to less than twelve years, the State, as the frustrated 

party, may withdraw from the plea agreement, the original charges will be 

reinstated, and plea negotiations can begin anew.

¶31 Similarly, if Williams is sentenced to more than twelve years, 

he may withdraw his plea and void the plea agreement because Arizona 

Rule of Criminal Procedure 17.4(e) would require the sentencing court to 

“give [him] an opportunity to withdraw the plea.” Ariz. R. Crim. P. 17.4(e); 

see Smith v. Superior Court, 130 Ariz. 210, 212 (1981) (noting that, pursuant 

alleging a different prior offense when the Court set aside the defendant’s 

guilty plea and remanded. Compare Johnson, 142 Ariz. at 224–25 (vacating a 

plea and reinstating charges against a defendant after finding a lack of a 

factual basis for the defendant’s guilty plea as a prior offender at the time 

the trial court accepted that plea), with Lopez, 120 Ariz. at 607–09 (sustaining 

a plea of guilty and remanding for entry of judgment and resentencing of a 

defendant as a first-time offender when the defendant erroneously pleaded

guilty as a repeat offender); see also State v. Draper, 123 Ariz. 399, 401 & n.1

(App. 1979) (reinstating charges against a defendant so the State could 

allege another prior conviction when the original prior conviction used as 

an enhancement was invalid, and noting that Lopez was silent as to whether 

there were other valid prior convictions which could have been used as

enhancements in that case). Moreover, neither Johnson nor Draper permits

the State in this case to allege a different prior conviction for sentence 

enhancement purposes if neither party withdraws from the plea agreement

because the State expressly agreed in the plea agreement to not do so.
 STATE V. WILLIAMS

Opinion of the Court

11

to Rule 17.4(e), a trial judge properly “advised [a defendant] that he was 

not accepting the sentence proposed in [an already accepted] plea 

agreement” and “offered the [defendant] the opportunity to withdraw his 

plea because the sentence would [have] be[en] more severe than that 

proposed in the plea agreement”); accord Williams v. Superior Court, 130 

Ariz. 209, 210 (1981).

C. Other Prior Felonies

¶32 The State asks us to deviate from contract law principles to 

allow it to unilaterally allege another one of Williams’s prior felony 

convictions, in place of the marijuana conviction, under the same plea 

agreement. But the plea agreement provides that no “allegation of 

[Williams’s] six other felony convictions” will “be brought against” him.

¶33 Certainly, the analogy between commercial contracts and 

plea agreements may not hold in every situation because “plea agreements 

must be construed in light of [other] rights and obligations created by the 

Constitution.” Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J., 

dissenting); see also Coy, 200 Ariz. at 445 ¶ 9 (“[W]e are not always obligated 

to apply a contract analysis to plea agreements because contract law may 

not [always] provide a sufficient analogy.”). But here, there is no reason to 

depart from contract principles.

¶34 We hold that the State is precluded from alleging another of 

Williams’s prior felonies under the existing plea agreement because doing 

so would unilaterally change a material term of the agreement. See 

Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any 

significant degree on a promise or agreement of the prosecutor, so that it 

can be said to be part of the inducement or consideration, such promise 

must be fulfilled.”).

¶35 Therefore, on remand, the State is left with the promises it 

made in the original plea agreement should the trial court resentence 

Williams to twelve years as originally agreed. But should the trial court 

resentence Williams to anything less than the agreed-upon twelve-year

sentence, the State can withdraw from the agreement. Likewise, should

Williams be resentenced to more than twelve years, he may withdraw his 

plea and withdraw from the plea agreement pursuant to Arizona Rule of 

Criminal Procedure 17.4(e). And if either party withdraws from the plea 
 STATE V. WILLIAMS

Opinion of the Court

12

agreement, the State may reinstate the original charges and allege 

Williams’s prior convictions. See Johnson, 142 Ariz. at 224–25; Draper, 123 

Ariz. at 401 & n. 1.

III. CONCLUSION

¶36 We vacate paragraphs 14 through 17 of the court of appeals’ 

opinion, affirm the remainder of the opinion, reverse the trial court’s PCR 

order, and remand the case to that court for re-sentencing.