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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent, 

v.

KENDRICK BARROW, Petitioner. 

No. 1 CA-CR 16-0630 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2014-001644-001 

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 

Maricopa County Office of the Legal Advocate, Phoenix

By Frances J. Gray

Counsel for Petitioner

FILED 12-19-2017
STATE 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. 

FACTS AND PROCEDURAL BACKGROUND

¶2 After rejecting a few plea offers, Barrow pled guilty directly 

to the court to aggravated assault, a class 4 felony (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 

convictions. 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 purposes. Barrow also 

argued the consecutive sentence violated his due process rights because it 

was imposed to penalize him for rejecting the State’s final plea offer. The 

court summarily denied the Rule 32 petition, and this timely petition for 

review followed. 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 consecutive 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 

single 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. 

II. It Is Fundamental Error to Impose a Consecutive Sentence for a 

Lesser-Included Offense.

¶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 Jeopardy 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 Statutes (“A.R.S.”) section 13-116, 

which provides: “An act or omission which is made punishable in different 

ways by different sections of the laws may be punished 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 facts” 

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

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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 theft is a lesser-included 

offense of robbery. See State v. Wall, 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, 131 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 

relate 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, 314–15 (1931). Accordingly, the 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 The theft conviction was not a lesser offense of the assault. 

Therefore, we must apply the second part of the Gordon test: ascertaining 

whether the crimes are 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 the elements of the other crime.” Id. Second, a 

court “consider[s] whether, given the entire ‘transaction,’ it was factually

impossible to commit the ultimate crime without also committing the

secondary 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 inherent in the ultimate crime.” Id. If 

two of the three Gordon factors weigh in favor of viewing the crimes as 
STATE 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 because 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 The superior court found the aggravated assault was the 

ultimate charge. After applying the Gordon factors, the court concluded the 

theft and aggravated assault constituted separate criminal acts. We find no 

error. 

¶11 The record reflects Barrow approached the victim and 

physically assaulted him, breaking his nose and causing him to lose 

consciousness. Barrow then “went through [the victim’s] pockets” and took 

the victim’s cell phone and two necklaces. Over the next few days, Barrow 

“pawned” the necklaces on two separate occasions.

¶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 

intending 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 

without also committing the theft. Finally, Barrow’s conduct in committing 

the 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) (elements of aggravated 

assault). Accordingly, with all Gordon factors 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 Facts in Reaching Its 

Sentencing Determination.

¶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 followed by probation. The court recessed 
STATE 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 release 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 this 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] release 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 to 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 sentences imposed.