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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

S TATE OF ARIZONA , Respondent
,

v.

K ENDRICK BARROW , Petitioner

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No. 1 CA- CR 16-0630 PRPC

P etition for Review from the Superior Court in Maricopa County No. CR 2014-001644-001 The Honorable Erin Otis , Judge

REVIEW GRANTED; RELIEF GRANTED IN PART

COUNSEL
Maricopa County Attorney’ s Office , Phoenix By Andrea L. Kever Counsel for Respondent

Ma ricopa County Office of the Legal Advocate
, Phoenix By France s J. Gray C ounsel for Petitioner FILED 12-19-2017STATE v. BARROW Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Peter B. Swann and Judge James B. Morse Jr. joined.

M c M U R D I E , Judge :

¶1 Kendrick Barrow petitions this court to review the superior court’s order dismissing his of

- right post

- conviction relief proceeding
, commenced pursuant to Arizona Rule of Criminal Procedure 32. We have considered the petition for review and, for the reasons stated, grant review and grant relief in part

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FACTS AND PROCEDURAL BACKGROUND

¶2 A fter rejecting a few plea offers, Barrow pled guilty directly to the court to aggravated assault, a class 4 fel ony (Count 1) ; robbery, a class 4 felony (Count 2) ; theft
, a class 6 felony (Count 3) ; and two counts of trafficking in stolen property in the second degree, both class 3 felonies (Counts 4 and 5)

. Barrow also admitted to having two prior felony conviction s. The court imposed the following prison sentences: Counts 1 and 2, 4.5 years ’ imprisonment , concurrent with each other and with Counts 4 and 5 ; Count 3 , 1.75 years ’ imprisonment , consecutive to the other counts ; and Counts 4 and 5, 6.5 years ’ imprisonment , concurrent with each other and with Counts 1 and 2

. ¶3 Barrow timely sought post

- conviction relief. He argued the court erred by imposing a consecutive sentence for Count 3 because Counts 1 through 3 constituted a “single act” for sentencing pur poses. Barrow also argued the consecutive sentence violated his due process rights because it was imposed to penalize him for rejectin g the State’s final plea offer. The court summarily denied the Rule 32 petition , and this timely petition for review follo wed

. We review for an abuse of discretion. State v. Gutierrez
, 229 Ariz. 573, 577, ¶ 19 (2012).

DISCUSSION ¶4 Barrow argues the superior court erred as a matter of law by determining the theft was an act separate from the assault and robbery, thus justifying a c onsecutive sentence for Count 3

. Specifically, Barrow contends the court misapplied the test , as set forth in State v. Gordon , 161 Ariz. 308 ,STATE v. BARROW Decision of the Court

3 312 (1989), for determining “ whether a constellation of facts constitutes a si ngle act . . . or multiple acts. . . .” The State maintains that the issue was waived , and if not waived it is meritless. 1

I. The Alleged Error Invokes Double Jeopardy Concerns and Therefore Is Not Subject to Waiver Under Rule 32.2.

¶5 Arizona Rule of Criminal Procedure 32.2 precludes relief based on any ground that has been waived. Because Barrow’s claim invokes double jeopardy analysis, it is not subject to waiver. “[T]he prohibition against double jeopardy is a fundamental right that is not waived by the failure to raise it in the trial court.” State v. Millanes , 180 Ariz. 418, 421 (App. 1994); see also State v. Dickinson , 242 Ariz. 120, 123, ¶ 9 (App. 2017)

. Therefore, we will review the merits of the claim

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II. It Is Fundamental Error to I mpose a Consecutive Sentence for a Lesser

- Included O ffense.

¶6 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple prosecutions and punishments for the same offense. U.S. Const. amend. V; Ariz . Const. art. 2, § 10; see also State v. Eagle
, 196 Ariz. 188, 190 , ¶ 5 (2000) (federal and Arizona Double Jeopardy Clauses generally provide same protections). Because greater and lesser

- included offenses are considered the “same offense,” the Double Jeop ardy Clauses forbid the imposition of a separate punishment for a lesser offense when a defendant has been convicted and sentenced for the greater offense. See Illinois v. Vitale
, 447 U.S. 410, 421 (1980); State v. Garcia , 235 Ariz. 627, 629, ¶ 5 (App. 2014) ; State v. Chabolla

– Hinojosa , 192 Ariz. 360, 362–63, ¶¶ 10–13 (App. 1998).

¶7 Statutorily, the prohibition of multiple punishments for the same act is codified in Arizona Revised Statute s (“ A.R.S.”) section 13-116, which provides: “ An act or omiss ion which is made punishable in different ways by different sections of the laws may be punis hed under both, but in no event may sentences be other than concurrent. ” Arizona Courts use the identical elements test to determine whether a “ constellation of fa cts ” constitutes a single act, which requires concurrent sentences, or multiple acts, which permit consecutive sentences. Gordon , 161 Ariz. at 312 ; State v. Tinghitella , 108 Ariz. 1, 3 (1971).

1 Barrow makes no argument that there was error in running the theft conviction consecutive to the convictions for trafficking in stolen property.STATE v. BARROW Decision of the Court

4 ¶8 Unless there is evidence in the record supporting both robbery and a separate
, unrelated theft, the imposition of a consecutive sentence for a theft conviction to the sentence imposed for a greater charge of robbery violates double jeopardy protections, as t heft is a lesser

- included offense of robbery

. See State v. W all
, 212 Ariz. 1, 3 –4 , ¶ 15 (2006) (theft is a lesser

- included offense of robbery) ; State v. McNair
, 141 Ariz. 475, 482 (1984) (same) ; State v. Celaya
, 135 Ariz. 248, 252 (1983) (same) ; State v. Dugan , 125 Ariz. 194, 195 (1980) (same) ; State v. Yarbrough , 1 31 Ariz. 70, 72

– 73 (App. 1981) (same). There is no evidence in the record to support separate robbery and theft convictions. There was only one alleged taking of property and that occurred after the assault. The taking of the victim’s property had to rel ate to the force necessary for the robbery conviction, or there would not have been a factual basis for robbery

. See A.R.S. § 13- 1902(A) ( “ A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property .”); State v. Bishop , 144 Ariz. 521, 524 (1985); Lear v. State , 39 Ariz. 313, 3 14– 15 (1931). Accordingly, t he order that Barrow’s sentence for the theft conviction run consecutive to the sentence imposed on the robbery conviction must be changed to reflect concurrent sentences. See A.R.S. § 13-4037(A) (appellate court authorized to modify an illegal sentence imposed upon a lawful finding of guilt by the trial court ); State v. Gourdin
, 156 Ariz. 337, 339 (App. 1988).

III. Under Gordon , the Superior Court Did Not Abuse Its Discretion by Ordering the Sentence for the Theft Conviction to Run Consecutive to the Sentence for the Assault.

¶9 T he theft conviction wa s not a lesser offense of the assault. Therefore
, we must apply the second part of the Gordon test : a scertaining whether the crimes a re one act permitting only concurrent sentences, or multiple acts permitting consecutive sentences

. Gordon , 161 Ariz. at 315. This analysis involves three factors

. Id. A court first “consider[ s] the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge,” and determine whether “the remaining evidence satisfies th e elements of the other crime.” Id

. Second, a court “consider[s] whether, given the entire ‘transaction,’ it was factua lly impossible to commit the ultimate crime without also committing the

s econdary crime.” Id

. Finally, a court “consider[s] whether the defendant’s conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that in herent in the ultimate crime.” Id

. If two of the three Gordon factors weigh in favor of viewing the crimes asSTATE v. BARROW Decision of the Court

5 separate acts, then consecutive sentences may be permissible under § 13- 116. See State v. Urquidez
, 213 Ariz. 50, 53, ¶ 10 (App. 2006) ( the trial court was not required to impose concurrent sentences “[b]ecause two of the three Gordon factors weigh in favor of viewing the two crimes as multiple acts”); State v. Siddle
, 202 Ariz. 512, 518, ¶ 18 (App. 2002) ( consecutive
sentences were permissible beca use two factors strongly suggested the defendant committed multiple acts). We review de novo a trial court’ s decision to impose consecutive sentences in accordance with § 13–116. Urquidez , 213 Ariz. at 52, ¶ 6; Siddle , 202 Ariz. at 517, ¶ 16.

¶10 T he superior court found the aggravated assault was the ultimate charge. After applying the Gordon factors, the court concluded the theft and aggravated assault cons tituted separate criminal acts. We find no

error.
¶11 The record reflects Barrow approached the victim and physically assaulted him
, breaking his nose and cau sing him to lose consciousness. Barrow then “went through [the victim’s] pockets” and took the victim’s cell phone and two nec klaces. O ver the next few days, Barrow “pawned” the necklaces on two separate o ccasions.

¶12 Leaving aside the evidence of the aggravated assault , the remaining evidence satisfies the elements of theft, namely that Barrow
, without lawful authority, knowingly controlled the victim’s property intendi ng to deprive the victim of it. See A.R.S. § 13- 1802(A)(1) (elements of theft). Secondly, had Barrow not proceeded to take the victim’s property after he beat him, Barrow could have committed the aggravated assault wi thout also committing the theft

. Finally, Barrow’s conduct in committing
t he theft caused the victim an additional risk of harm

— loss of property

— beyond the broken nose the victim suffered because of the aggravated assault. See A.R.S. §§ 13-1203(A)(1), - 1204(A)(3) (e lements of aggravated assault). Accordingly, with all Gordon fac tors weighing in favor of concluding the theft and aggravated assault were separate acts, the court did not err by ordering the sentences for those offenses be served consecutively.

IV. The Court Did Not Improperly Consider F ac ts in Reaching Its Sentencing D e termination.

¶13 On the day set for trial, Barrow appeared at a settlement conference where the court engaged him and the prosecutor in a lengthy discussion of the State’s possible plea offer that included a stipulation to a six to seven

- year prison sentence f ollowed by probation. The court recessedSTATE v. BARROW Decision of the Court

6 until the afternoon so the prosecutor could draft the plea agreement and so Barrow could get his “ducks in a row.” Barrow failed to return
, thereby rejecting the offer

. Consequently, the court revoked Barrow’s relea se and
set a status conference
, where Barrow subsequently pled to the court.

¶14 Barrow contends the court ordered the sentence for theft to be served consecutively as retribution for Barrow’s refusal of the State’ s final plea offer

. We reject t his argument because the record is to the contrary. The court expressly informed the parties that the sentence was not a response to Barrow’s failure to appear

. The court explained the consequence for Barrow’s failure to appear was “revoking [Barrow’s] rel ease and beyond that, that incident was not going to in any way impact what [the court] thought was going to be an appropriate sentence in this case.” No error occurred.

CONCLUSION

¶15 We grant review and grant relief in part. We modify the sentencing order t o reflect that the sentence on Count 3 (theft) shall be served concurrent with the sentence on Count 2 (robbery). We affirm the remainder of the sentence s imposed

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