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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

JASON LANARD MEEKS

, Appellant

.

No. 1 CA

- CR 16

- 0121

Appeal from the Superior Court in Maricopa County

No. CR2014

- 150750

- 002
The Honorable Dean M. Fink

, Judge

CONVICTION AFFIRMED; SENTENCE V AC A TED AND

REMANDED FOR RESENTENCING

COUNSEL

Arizona Attorney General ’s Office , Phoenix By Gracynthia Claw Counsel for Appellee

Maricopa County Public Defender’s Office

, Phoenix By Kevin D. Heade
C ounsel for AppellantSTATE v. MEEKS
Decision of the Court

2 MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.

B E E N E

, Judge:

¶1 Jason Lanard Meeks appeals his 17

- year sentence res ulting from his conviction for armed robbery, a class 2, dangerous f elony. For the reasons that follow, we affirm Meeks’ conviction, vacate the sentence , and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

¶2 On October 16, 201 4, the victim, M

. S

. , attempted to purchase prescription drugs from Meeks. M.S. and Meeks met at a Mesa apartment complex to exchange cash for drugs. Meeks held M.S. up with a knife, and robbed him of two cell phones, a wallet, gym shoes, and approximately $6,000. An accomplice assisted Meeks during the armed robbery

.
¶3 The j ury c onvicted Meeks of one count of armed r obbery

. The j ury also found that three aggravating c ircumstances were present

— the use of a deadly weapon during the commission of the crime, the presence of an accomplice, and Meeks committed this offense while on community supervision

.
¶4 At sentencing, the superior court found th at Meeks had five prior felon y convictions

— four non

- dangerous felonies and a class 4 dangerous f elony. T he superior court considered the aggravating factors found by the jury, Meeks’ five prior felony convictions, and three mitigating
factors when sentencing Meeks. I n its sentencing order, the superior court found that Meeks was a dangerous, repetitive offender purs uant to Arizona Revised Statute (“ A.R.S. ”) § 13

- 704

. 1 Because Meeks committed this offense while on community supervision, the superior court determined that he could be sentenced to no less than the presumptive prison sentence of 15.75 years. A .R.S. § 13

- 708(A) (2017)

. After the superior court found “that the aggravating circumstances are sufficiently substantial to warrant a

1 Absent material revisions after the date of an alleged offense , we cite a statute’s current version.STATE v. MEEKS
Decision of the Court

3 somewhat aggravated sentence, ” Meeks was sentenced to a slightly aggravated 17

- year prison sentence.

¶5 Mee ks timely appealed his sentence. W e have jurisdiction pursuant to A.R.S. §§ 12

- 120.21(A)(1) (2017) , 13

- 4031 (2017) , 13

- 4033(A)(1) (2017) and Article VI, § 9 of the Arizona Constitution.

DISCUSSION

¶6 On appeal, Meeks argues that the superior court er red when it considered the use of a deadly weapon as an aggravating factor because the use of a deadly wea pon is an essential element of armed r obbery

. 2
Meeks additiona lly asserts that the superior court err ed when it sentenced
him as a dangerous, repetitive offender pursuant to A.R.S. § 13

- 704(D) (2017) . M eeks contends that the superior court’s consideration of the improper aggravating factor and its erroneous determin ation that he was a dangerous, repetitive offender resulted in an illegal sentence that was fundamentally prejudicial.

¶7 Meeks’ claim, which is raised for the first time on appeal, is subject to fundamental error review only. State v. Henderson , 210 Ariz. 561, 567, ¶ 19 (2005). Fundamental error occurs only “in those rare cases that involve error going to the foundation of the case, error that takes [ away ] from the defendant a right that is essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.”
Id . (internal quotations and citations omitted). The defendant has the
burden to show that fundamental error occurred and such error caused prejudice. Id . at 56 7 , ¶ 20. When the superior court considers an improper aggravating factor in imposing sentence, w e will affirm the sentence “ only where the record clearly shows the [superior] court would have reached the same result even without consideration of the improper factors. ” Sta te v. Ojeda , 159 Ariz. 560, 562 ( 1989).

A. Fundamental Error

¶8 “The failure to impose a sentence in conformity with mandatory sentencing statutes makes the resulting sentence illegal.” State v. Carbajal , 184 Ariz. 117, 118 ( App. 1995). And we have held that t he “[i]mposition of an illegal sentence constitutes fundamental error.” State v.
Thues , 203 Ariz. 339, 340, ¶ 4 (Ap p . 2002). As previously stated, the superior

2 The State concedes that the superior court erred when it considered the use of a dangerous weapon as an aggravat ing factor when sent encing Meeks for armed robbery. S ee A.R.S. § 13

- 1904 (2017).STATE v. MEEKS
Decision of the Court

4 court sentenced Meeks as a dangerous, repetitive offender. I n order to be
classified as a dan gerous, repetitive offender, the defendant must be convicted of a class 2 or 3 dangerous felony and have one historical prior felony conviction that is a class 1, 2, or 3 dangerous felony. A.R.S. § 13

- 704(D). Although Meeks was convicted of a class 2 dan gerous felony at trial, he did not possess the requisite prior felony convictions necessary to classify him as a dangerous, repetitive offender pursuant to A.R.S. § 13

- 704(D). The superior court’s failure to impose a sentence in conformity with
the senten cing statutes , in addition to the use of an improper aggravating factor, makes Meeks’ sentence illegal and therefore constitutes fundamental

error.

B. Prejudice

¶9 In addition to showing fundamental error, Meeks “must demonstrate that the error caused him prejud ice.” See Henderson , 210 Ariz. at 568, ¶ 26. Determining whether prejudice exists “involves a fact

intensive inquiry, and the showing required to establish prejudice there fore differs from case to case.” Id

. Meeks bears the burden of showing that if
the superior court had not improperly considered the use of a deadly weapon in the commission of the offense and that he was a dangerous, repetitive offender, the superior court could have reasonably imposed a lig hter sentence. See id

.
¶10 At sentencing, the superior court erroneously found that
Meeks was a dangerous, repetitive offender. A dditionally, the superior court improperly considered Meeks’ use of a deadly weapon in the
commission of the armed ro bbery as an aggravating factor. H owever, the superior court did properly consider that Meeks employed an accomplice during the armed robbery as an aggravating factor. See A.R.S. § 13

- 701(D)(4). T he superior court then found the following mitigating
circumstances

— Me eks’ difficult childhood, his history of substance abuse, and his strong family support. A fter considering these aggravating and mitigating circumstances, the superior court found that the aggravating circumstances were sufficiently substantial to warrant a “somewhat aggravated sentence.” M eeks has demonstrated that absent the errors, the superior court could have imposed a lighter sentence

. When it is “unclear whether the judge would have imposed the same sentences absent the inappropriate factor, the c ase must be remanded for resentencing.” State v.
Alvarez , 205 Ariz. 110, 116, ¶ 19 (App. 2003).STATE v. MEEKS
Decision of the Court

5 CONCLUSION

¶11 For the foregoing reasons, we affirm Meeks’ conviction,

vacate the sentence and remand for resentencing consistent with this
decision.