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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

KEVIN MARTIN, Appellant.

No. 1 CA-CR 22-0140 

Appeal from the Superior Court in Maricopa County

No. CR2020-105324-001

The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael T. O’Toole

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Aaron J. Moskowitz

Counsel for Appellant

FILED 11-21-2023
STATE v. MARTIN

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in 

which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined. 

H O W E, Judge:

¶1 Kevin Martin appeals his sentences for fraudulent schemes 

and artifices, forgery, theft, and theft of means of transportation. He argues 

that the trial court erred by considering his lack of remorse at sentencing. 

We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2019, Martin used fraudulent checks to purchase gold 

coins from two separate gold sellers, X Brokerage and Y Brokerage,

1 for

$29,300 and $29,240. When the checks did not clear, the sellers refused to 

provide Martin with the coins. That same month, Martin used two

fraudulent checks to purchase gold coins from a third gold seller, Z 

Brokerage, for a total of $93,600. Martin had already left with the coins

when the checks came back as fraudulent.

¶3 A Z Brokerage representative contacted the police, who set up 

an undercover operation, asking Martin to come back and buy more gold 

coins. Martin returned and attempted to purchase coins using another 

fraudulent check for $47,580. After officers arrested Martin, they searched 

his vehicle and home. Officers found journals, checkbooks, and documents

consistent with fraudulent activity. They never located the stolen coins.

¶4 After Martin had been arrested and released, he attempted to

purchase gold coins and bars from Y Brokerage in December 2019 using a 

fraudulent check for $226,451. He later went to its store and left documents 

stating his intent to buy additional coins, submitting another fraudulent 

check for $230,000 to replace the initial check. Suspecting fraudulent 

activity, a Y Brokerage representative declined Martin’s offer and contacted 

police officers.

¶5 During the same period, Martin used a fraudulent check to 

purchase a luxury vehicle from a dealership for $416,971.42. The dealership 

1 We use pseudonyms to protect the privacy of the victims.
STATE v. MARTIN

Decision of the Court

3

shipped the vehicle to Martin before processing the check. When the check 

did not clear, a dealership representative contacted police and attempted to

retrieve the vehicle from Martin’s home. Martin refused to speak, and shut 

the door. Later, officers observed Martin attempting to abandon the vehicle

a few blocks from his home. Officers recovered the vehicle and searched 

Martin’s home, finding additional notes, checkbooks, and documents 

consistent with fraudulent activity.

¶6 The State charged Martin with one count of fraudulent 

schemes and artifices, a class 2 felony, seven counts of forgery, class 4 

felonies, two counts of theft, class 2 felonies, and one count of theft of means 

of transportation, a class 3 felony.

2 The jury found Martin guilty of all 

counts, and found aggravating factors applied. As relevant here, for one 

count of theft and the count of theft of means of transportation, the jury 

found Martin took property worth an amount sufficient to be an 

aggravating factor and he committed the offenses for pecuniary gain. See

A.R.S. § 13–701(D)(3), (7). For the same count of theft, the jury also found 

Martin’s conduct caused Z Brokerage to suffer harm. See A.R.S. 

§ 13–701(D)(9).

¶7 Before sentencing, the probation department submitted a 

presentence report that recommended “an extensive prison term,”

including consecutive sentences, based on Martin’s history of committing

financial crimes, multiple dates of offense, and the risk he poses to the 

community. The report noted that a Z Brokerage representative 

recommended consecutive sentences be imposed because Martin “thinks 

he is above the law” and caused the business significant harm.

¶8 At sentencing, the trial court found that Martin’s prior felony 

convictions, all of which involved fraud or forgery-related offenses, 

exposed him to the category-two repetitive offender sentencing range. See

A.R.S. § 13–703(B). The State recommended the court impose presumptive 

sentences with two counts run consecutively based on Martin’s criminal 

history and the repetitive nature of the offenses. The State asked the court 

to consider Martin’s demeanor, arguing that “[h]e has shown no remorse 

for anything that has happened in this case.” Without objecting to the 

State’s remarks, Martin argued his mental health issues constituted a

mitigating factor. He did not point to a specific diagnosis or present

documentation from a mental health provider. Martin added that he had

“some support” from a girlfriend and the offenses did not involve violent 

2 The trial court granted the State’s motion to dismiss two additional 

counts of forgery, class 4 felonies.
STATE v. MARTIN

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conduct. A Z Brokerage representative gave a victim impact statement, 

characterizing Martin as a “professional con man” who “knew full well

what he was doing.” The representative asked that Martin be harshly 

punished for the “devastating” harm he inflicted on the business.

¶9 In pronouncing sentence, the trial court stated that it 

considered the aggravating factors the jury found. The court addressed 

Martin’s proposed mitigation, declining to consider his mental health 

issues as a mitigating factor. The court noted that Martin “may have mental 

health issues, but his conduct is egregious” and he committed the offenses 

“with knowledge of his behavior.” The court pointed to the “methodical” 

and intentional nature of the offenses, finding that Martin still harmed the 

community even though he did not engage in violent conduct. The court 

noted that Martin’s prior felony convictions were “similar in nature in

terms of defrauding people or agenc[ies]. He knows exactly what he’s 

doing. He intended to, and his behavior is unacceptable. He clearly has no 

remorse.” After making this comment, the court clarified that Martin “had 

every right to go to trial. He chose to do that. That’s perfectly fine. The 

[c]ourt would never [hold] that against any defendant [for] a choice to go 

to trial, but his behavior as evidenced through the trial, just shows his 

willing intentional participation in this kind of conduct.”

¶10 The trial court found a “lengthy period” of imprisonment 

appropriate based on Martin’s criminal history, the seriousness of the

offenses, and the harm to victims. The court imposed a term of 

imprisonment slightly “greater than the presumptive” for one count of 

theft, and presumptive terms of imprisonment for all remaining counts. The 

court ordered the sentences in all counts to run concurrently except the 

sentence for the count of theft of means of transportation, which the court 

ran consecutively, for a total of 16.5 years’ imprisonment. Martin timely 

appealed.

DISCUSSION

¶11 Martin argues that the trial court erred by considering his lack 

of remorse at sentencing. In particular, he contends that the court

improperly used his lack of remorse to impose a “partially aggravated” 

sentence for one count of theft and a consecutive sentence for the count of 

theft of means of transportation. Relying on State v. Vermuele, Martin 

concedes that he did not object at sentencing but argues the issue should be 

reviewed de novo. 226 Ariz. 399 (App. 2011). We disagree. Unlike Vermuele, 

in which the defendant had no “clear procedural opportunity” to challenge 

his sentences below, Martin had the opportunity to object at any point after 
STATE v. MARTIN

Decision of the Court

5

the State commented on his lack of remorse in its sentencing 

recommendation. Id. at 402 ¶ 9. He could have raised this objection before, 

during, or after the court’s pronouncement of sentence. Because Martin 

failed to raise this issue below, we review only for fundamental, prejudicial 

error. See State v. Escalante, 245 Ariz. 135, 140, 142 ¶¶ 12, 21 (2018); State v. 

Trujillo, 227 Ariz. 314, 317 ¶ 9 (App. 2011) (reviewing the court’s 

unobjected-to consideration of lack of remorse at sentencing for 

fundamental error).

¶12 Generally, a criminal defendant’s choice “not to publicly 

admit guilt is irrelevant to a sentencing determination” because “it would 

be irrational or disingenuous to expect or require one who maintains his

innocence to express contrition or remorse.” State v. Hardwick, 183 Ariz. 649, 

656 (App. 1995). Absent the defendant’s admitting guilt and raising the 

issue of remorse, the trial court must not consider lack of remorse as an 

aggravating factor. Trujillo, 227 Ariz. at 317–18 ¶¶ 12–15. This court will not, 

however, remand for resentencing when the record shows the “court would 

have reached the same result even without consideration of the factor.” Id.

at 318 ¶ 13 (citation and internal quotation marks omitted). Mere 

speculation that an improper factor may have affected the court’s 

imposition of sentence is not enough to establish prejudice. State v. 

Munninger, 213 Ariz. 393, 397 ¶ 14 (App. 2006). Moreover, the trial court is

allowed to “consider all evidence and information presented at all stages of 

the trial,” including “the general moral character of the defendant,” for the 

purpose of weighing the aggravating and mitigating factors. State v. Suniga, 

145 Ariz. 389, 395 (App. 1985). 

¶13 The record does not show that the trial court used Martin’s 

lack of remorse to impose consecutive or aggravated sentences. The court 

addressed the aggravating factors found by the jury, all of which were 

proper, before considering Martin’s proposed mitigation. The court 

declined to view Martin’s mental health issues as a mitigating factor based 

on evidence that he methodically defrauded others for his own financial 

benefit. The court concluded that, given the complex and egregious nature 

of the offenses, Martin’s potential mental health issues could not overcome 

the significant aggravating factors in this case. The court mentioned 

Martin’s lack of remorse within the context of this discussion. Immediately 

after, the court clarified that this comment should not be interpreted as 

punishing Martin for exercising his right to trial. The court then referred to 

Martin’s criminal history, the seriousness of the offenses, victim harm, and 

the risk he posed to the community, all of which were the focus of the 

sentencing recommendations from the probation department, the State, 

and a victim’s representative.
STATE v. MARTIN

Decision of the Court

6

¶14 The trial court’s isolated comment did not become the focus 

of sentencing. See Trujillo, 227 Ariz. at 316, 318 ¶¶ 6, 14 (finding error when

the court “repeatedly admonished” the defendant for his lack of remorse 

and failure to admit responsibility). The brief reference to Martin’s lack of 

remorse did not extend past the court’s rationale for rejecting the proposed 

mitigation. The court properly considered Martin’s “general moral 

character,” namely the gravity and frequency of his fraudulent activity, in 

discounting his mental health issues as a mitigating factor. See Suniga, 145 

Ariz. at 395. We find no support in the record to suggest that the court

would have imposed more lenient sentences absent the alleged error. See 

Trujillo, 227 Ariz. at 318 ¶ 13. Martin has thus failed to establish 

fundamental error requiring remand.

¶15 To the extent Martin asks that we overrule or disapprove of 

the holding in State v. Dominguez, 236 Ariz. 226 (App. 2014), we decline to 

do so here. That case involved the trial court’s express consideration of the 

defendant’s lack of remorse under the catch-all provision of A.R.S. 

§ 13–701(D)(27). Id. at 231 ¶ 16. Nothing about our decision in the current 

case diverges from or conflicts with the holding in Dominguez.

¶16 Martin also argues that the State’s comment on his lack of 

remorse constituted “prosecutorial misconduct.” This argument is not 

meaningfully developed and is therefore waived. See Ariz. R. Crim. P. 

31.10(a)(7)(A); State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a 

claim usually constitutes abandonment and waiver of that claim.”).

CONCLUSION

¶17 We affirm.