NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KAREN DAGENAIS, Appellant.

No. 1 CA-CR 14-0204

Appeal from the Superior Court in Maricopa County

No. CR2013-002710-001

The Honorable Carolyn K. Passamonte, Judge Pro Tempore

REMANDED FOR RESENTENCING

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Myles A. Braccio

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant
STATE v. DAGENAIS

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge John C. Gemmill and Judge Kenton D. Jones joined.

K E S S L E R, Judge:

¶1 Karen Dagenais appeals from her convictions and resulting 

sentences. She challenges only the sentences imposed, arguing the trial 

court erroneously considered her lack of remorse as an aggravating factor. 

For the following reasons, we remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

¶2 Dagenais was indicted for one count of attempted fraudulent 

schemes and artifices, a class 3 felony, one count of computer tampering, a 

class 5 felony, one count of forgery, a class 4 felony, and five counts of theft 

by extortion, class 4 felonies. A jury found her guilty of all eight counts. 

¶3 At sentencing, the trial court ultimately found the mitigating 

factors outweighed the aggravating factors, and sentenced Dagenais to less 

than the presumptive:

In this matter, the Court finds that as to Count 1 probation is 

appropriate; that the defendant can benefit from the services 

available on probation.

As to Counts 2 through 8 that a prison term is 

appropriate. . . . There are multiple crimes committed. And 

when I weigh aggravating and mitigating circumstances as to 

the imposition of prison, the Court finds that mitigating 

circumstances include the fact that the defendant has a clean 

criminal history. This is her first -- these are her first felony 

convictions; that she has a very, very minimum contact with 

the law in the past. The Court also considers as a mitigating 

factor that the defendant has, through her presentation at the 

trial and through what I have seen in her presentence report, 

that the defendant presents with a need for therapy for 

emotional and other mental health problems; that those needs 

are a mitigating factor even though the Court does not believe

that they excuse her behavior or are a reason for the Court not 
STATE v. DAGENAIS

Decision of the Court

3

to find that she had the intent necessary for all these crimes. I 

do believe she had the intent.

Finally, as to mitigation, the defendant has community 

support, as demonstrated in the letters she has submitted.

Against those mitigating factors, the Court [weighs] 

the aggravating factors of the emotional harm to the victim as 

testified to in court; that these were committed for pecuniary 

gain. And also when I reviewed the defendant’s statements 

in the presentence report and her testimony at trial, there is a 

lack of remorse for the defendant.

In weighing the factors, the Court finds that the 

mitigating factors outweigh the aggravating factors and call 

for a prison sentence of less than the presumptive.

Dagenais was placed on two years’ supervised probation for her conviction 

of attempted fraudulent schemes and artifices, and was sentenced to .75 

years’ imprisonment for computer tampering and 1.5 years’ imprisonment 

for forgery and each count of theft by extortion. The prison terms were 

ordered to be served concurrently. 

¶4 Dagenais timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-

4033(A)(1) (2010).

ISSUE AND STANDARD OF REVIEW

¶5 Dagenais argues that the trial court erred in considering her 

lack of remorse as an aggravating factor. “A trial court has broad discretion 

to determine the appropriate penalty to impose upon conviction, and we 

will not disturb a sentence that is within statutory limits . . . unless it clearly 

appears that the court abused its discretion.” State v. Cazares, 205 Ariz. 425, 

427, ¶ 6, 72 P.3d 355, 357 (App. 2003). “We will find an abuse of discretion 

only if the court acted arbitrarily or capriciously or failed to adequately 

investigate the facts relevant to sentencing.” Id. 

¶6 The State argues that because Dagenais failed to object below, 

she has waived her objection absent a showing of fundamental error and 

prejudice. See State v. Trujillo, 227 Ariz. 314, 317, ¶ 9, 257 P.3d 1194, 1197 

(App. 2011) (reviewing the trial court’s consideration of lack of remorse for 

fundamental error because the appellant failed to raise the issue below); 
STATE v. DAGENAIS

Decision of the Court

4

State v. Avila, 217 Ariz. 97, 100, ¶ 12, 170 P.3d 706, 709 (App. 2007) (“[T]he 

burden of persuasion borne by a defendant in fundamental error review 

does not permit him to remain silent at trial and reserve the ‘hole card’ of a 

later appeal on a matter that was curable at trial, and then seek appellate 

reversal.”). “An objection is sufficiently made if it provides the judge with 

an opportunity to provide a remedy.” State v. Fulminante, 193 Ariz. 485, 

503, ¶ 64, 975 P.2d 75, 93 (1999). Here, at the end of sentencing, the 

prosecutor raised the issue with the court:

The only thing I want to say, Judge, is in the mitigating 

and aggravating factors that you noted lack of remorse as an 

aggravating factor, there could be some legal issues with 

that[.]

As a result, the court was given the chance to address the issue and provide 

relief. The court responded, stating that it believed remorse could be 

considered:

I understand what you are saying, but I don’t think 

there are. And once the defendant has presented mitigating 

factors, then I think remorse can be considered, and especially 

since in my weighing I find that it’s more -- weighs more 

towards mitigation than aggravation. But frankly, after 

hearing all of the evidence at trial and seeing what she said to 

the presentence writer,[1]there isn’t remorse, and I wanted 

that noted on the record.

Based on this record, because the trial court addressed the issue before 

Dagenais had a chance to join in the objection, “it would have been futile to 

make the same objection that had just been rejected.” People v. Gamache, 227 

P.3d 342, 370 (Cal. 2010). Accordingly, we review the issue for an abuse of 

discretion rather than for fundamental error.

DISCUSSION

¶7 The privilege against self-incrimination is guaranteed by 

Article 2, Section 10, of the Arizona Constitution and the Fifth and 

Fourteenth Amendments to the United States Constitution. Flagler v. 

Derickson, 134 Ariz. 229, 231, 655 P.2d 349, 351 (1982); see also U.S. Const. 

 

1 The presentence investigation report provides that Dagenais “stated she 

is innocent and plans on appealing her conviction. She would like no 

further action to be taken; however, she is willing to comply with probation 

if necessary.”
STATE v. DAGENAIS

Decision of the Court

5

amend. V (“No person shall . . . be compelled in any criminal case to be a 

witness against himself . . . .”); Ariz. Const. art. 2, § 10 (“No person shall be 

compelled in any criminal case to give evidence against himself . . . .”). “A 

defendant is guilty when convicted and if he chooses not to publicly admit 

his guilt, that is irrelevant to a sentencing determination.” State v. Carriger, 

143 Ariz. 142, 162, 692 P.2d 991, 1011 (1984). In contrast, “[i]f a defendant 

admits his guilt, this can be used as additional mitigating evidence, 

provided the defendant is truly remorseful for his crime.” Id.; see also State 

v. Hardwick, 183 Ariz. 649, 656, 905 P.2d 1384, 1391 (App. 1995) (“Remorse 

can be a mitigating factor with the defendant having the burden of proof by 

a preponderance of the evidence.”). However, “[a]s contrition or remorse 

necessarily imply guilt, it would be irrational or disingenuous to expect or 

require one who maintains his innocence to express contrition or remorse.” 

Hardwick, 183 Ariz. at 656, 905 P.2d at 1391. As a result, a trial court’s use 

of a defendant’s decision not to admit guilt to aggravate a sentence “offends 

the Fifth Amendment privilege against self-incrimination.” Id.; see also 

Trujillo, 227 Ariz. at 318, ¶ 15, 257 P.3d at 1198 (“[W]e conclude that in 

considering [the defendant’s] lack of remorse and his failure to admit guilt, 

the trial court deprived him of a right essential to his defense.”); State v. 

Tinajero, 188 Ariz. 350, 357, 935 P.2d 928, 935 (App. 1997) (remanding 

because trial court considered lack of remorse as aggravator), disapproved of 

on other grounds by State v. Powers, 200 Ariz. 363, 364, ¶ 10, 26 P.3d 1134, 1135

(2001). Based on the guidance provided by Hardwick, Tinajero, and Trujillo, 

we conclude that the trial court erred in considering Dagenais’ lack of 

remorse as an aggravating factor.

¶8 The State argues that although a court generally may not 

consider a defendant’s lack of remorse as an aggravating factor, Dagenais 

waived her Fifth Amendment privilege when she testified at trial. The State 

relies on several cases to support its assertion, but we find those cases 

distinguishable because they address a defendant’s truthfulness rather than 

an absence of remorse. See U.S. v. Dunnigan, 507 U.S. 87, 97 (1993) (“It is 

rational for a sentencing authority to conclude that a defendant who 

commits a crime and then perjures herself in an unlawful attempt to avoid 

responsibility is more threatening to society and less deserving of leniency 

than a defendant who does not so defy the trial process.”), abrogated on other 

grounds by U.S. v. Wells, 519 U.S. 482 (1997); U.S. v. Grayson, 438 U.S. 41, 50 

(1978) (“A defendant’s truthfulness or mendacity while testifying on his 

own behalf, almost without exception, has been deemed probative of his 

attitudes toward society and prospects for rehabilitation and hence relevant 

to sentencing.”), superseded by statute as stated in Barber v. Thomas, 560 U.S. 

474 (2010); State v. McDonald, 156 Ariz. 260, 263-64, 751 P.2d 576, 579-80

(App. 1987) (finding it permissible to aggravate a sentence based on 
STATE v. DAGENAIS

Decision of the Court

6

perjurious testimony); State v. Sungia, 145 Ariz. 389, 395, 701 P.2d 1197 

(App. 1985) (“The trial court . . . may consider all evidence and information 

presented at all stages of the trial, together with all probation and 

presentence reports, or factors like the general moral character of the 

defendant.” (internal citations omitted)). Here, during the sentencing 

hearing, the trial court specifically referred to Dagenais’ “lack of remorse” 

and not the truthfulness of her testimony. See supra ¶ 6.

¶9 The State further argues the sentence should be affirmed 

because the trial court did not, in fact, aggravate Dagenais’ sentence. 

However, as we noted in State v. Pena, even if the court had imposed a 

mitigated sentence, “that does not necessarily mean that the consideration 

of [an] improper aggravating factor[] was harmless error.” 209 Ariz. 503, 

509, ¶ 22, 104 P.3d 873, 879 (App. 2005). “For approximately a quarter of a 

century, Arizona’s statutory scheme has prescribed sentencing ranges for 

different classes of offenses, with multiple factors determining the range 

that applies.” State v. Brown, 205 Ariz. 325, 332-33, ¶ 25, 70 P.3d 454, 461-62

(App. 2003), vacated on other grounds, 209 Ariz. 200, 203, ¶ 13, 99 P.3d 15, 18 

(2004). The sentence imposed by the trial judge is selected “from a range of 

punishments . . . based on a balancing of various aggravating and 

mitigating factors of various weight.” Pena, 209 Ariz. at 509, ¶ 22, 104 P.3d 

at 879. “The reversal of a single aggravating factor may mean that ‘the 

sentencing calculus . . . has changed.’” Id. at ¶ 23 (quoting State v. Lehr, 205 

Ariz. 107, 109, ¶ 8, 67 P.3d 703, 705 (2003)). Unless it is clear that the same 

sentence would have been imposed regardless of the sentencing error, we 

cannot find that the error was harmless. Id. at ¶ 24. Because we cannot say 

with certainty that the sentencing judge would have mitigated the sentence 

to the same degree absent consideration of the improperly aggravated 

factor, the case must be remanded for resentencing. See id. at ¶¶ 24-25. 

“Our conclusion does not preclude the reimposition of [the same] sentences 

if the trial judge, in conscientiously balancing the factors [she] may properly 

consider, concludes that such sentences are indicated.” State v. Kerekes, 138 

Ariz. 235, 238, 673 P.2d 979, 982 (App. 1983); see also State v. Munninger, 213 

Ariz. 393, 400, ¶ 30, 142 P.3d 701, 708 (2006) (Lankford, J., dissenting in part) 

(“We should instead remand to allow the trial court to impose the sentence 

that it determines to be justified by the properly considered sentencing 

facts. If that sentence differs, we have done justice to the defendant and 

upheld the trial court’s discretion. If the sentence remains the same, we 
STATE v. DAGENAIS

Decision of the Court

7

have done no more mischief than require that the sentencing judge think 

twice about the severity of punishment.”).2

CONCLUSION

¶10 For the foregoing reasons, we remand for resentencing.

 

2 Relying on State v. Ruggiero, 211 Ariz. 262, 269 n.6, ¶ 29, 120 P.3d 690, 697 

n.6 (App. 2005), the State also argues that Dagenais failed to show any 

resulting prejudice. In Ruggiero, although the trial court erred in 

considering lack of remorse as an aggravating factor, the court found the 

defendant did not establish prejudice in light of the trial court’s 

consideration of additional proper aggravating factors. 211 Ariz. at 269 n.6, 

¶ 29, 120 P.3d at 697 n.6. We find Ruggiero to be distinguishable because 

the defendant failed to object below and the claim was reviewed for 

fundamental error. Id. Additionally, Ruggiero reached that conclusion 

relying only upon State v. Henderson, 210 Ariz. 561, 569, ¶ 28, 115 P.3d 601, 

609 (2005). 211 Ariz. at 268, ¶ 28, 120 P.3d at 696. In Henderson, the court 

explained that for purposes of fundamental error review, if a judge relies 

upon aggravating factors that only a jury could have found, then the 

defendant must show that a jury could have reached a different conclusion 

as to any or all aggravators than the judge. 210 Ariz. at 569, ¶ 28, 115 P.3d 

at 609. The defendant’s sentence can only be affirmed if there are remaining

aggravators appropriately found by the judge, or if it is shown that a jury 

could not have come to a different conclusion regarding the existence of the 

aggravators. Id. Here, as explained above, we are not dealing with 

fundamental error analysis nor an analysis to determine if a reasonable jury 

could have found an aggravator. Rather, unless it is clear that the same 

sentence would have been imposed regardless of the sentencing error, we 

cannot find that the error was harmless. See supra ¶ 9.