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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

STATE OF ARIZONA , Appellee
,

v.

GEROME Q. LANG , Appellant

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No. 1 CA

- CR 17

- 0358

Appeal from the Superior Court in Maricopa County

No. CR2016

- 106599

- 001 The Honorable Lauren R. Guyton , Judge Pro Tempore

CONVICTIONS AND SENT ENCES AFFIRMED;

RESTITUTION REDUCED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Joseph T. Maziarz Counsel for Appellee
Maricopa County Public Defender’s Office
, Phoenix By Edward F. McGee C ounsel for Appellant FILED 3-15-2018STATE v. LANG Decision of the Court

2 MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

T H U M M A , Chief Judge:

¶1 After a jury trial, and a showing of his substantial criminal history, Gerome Q. Lang was sentenced to concurrent prison terms, the longest of which was 10.5 years, for five non

- dang erous but repetitive offenses: (1) one count of trafficking in stolen property in the second d egree, a Class 3 felony; (2) three counts of organized retail theft ( committed on three different dates ) , Class 4 felonies and (3) one count of fraudulent schemes and artifices, a Class 2 felony. Lang was given 468 days of presentence incarceration credit and, based on a restitution ledger, ordered to pay victim Lowe’s Home Improvement $3,693 in restitution for the fraudulent schemes and artifices conviction . This court has jurisdiction over Lang’s timely appeal, challenging the restitution award, pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12

- 120.21(A)(1)
, 13

- 4031 and 13

- 4033(A) (20 18 )

. ¶2 Lang argues the $3,693 restitution award was error, because the “full amount of the economic loss” for restitution totaled $2,127.03. See A.R.S. § 13

- 603(C)(2018). Recognizing he did not object in superior court, Lang argues the restitution imposed was fundamental error resulting in prejud ice. See State v. James , 231 Ariz. 490, 493 ¶ 11 (2013) (noting that, when no timely objection is made, “the review on appeal is for fundamental error,” meaning the defendant “ bears the burden to establish that (1) error exists, (2) the error is fundamenta l, and (3) the error caused him prejudice.” ) (citations and internal punctuation omitted).

¶3 The State confesses error, noting that when a defendant shows on the appellate record that the restitution ordered exceeds a lawful award, the error is fundamental r esulting in prejudice and the appellate court may reduce the award to a lawful amount . The State also notes that, on appeal, Lang detailed the total losses attributable to him at $2,127.03 and the State “agrees with Lang’s calculations.” Accordingly, the S tate “agrees that this Court should order that Lang’s restit ution be reduced to $2,127.03.”STATE v. LANG Decision of the Court

3 ¶4 This court accept s the State’s confession of error, and reduces the restitution award from $3,693 to $2,127.03. In all other respects, Lang’s convictions and sente nces (including resulting consequences) are affirmed

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