State v. King , 178 Ariz. 303 ( 1993 )

OPINION

MICHAEL J. O’MELIA, Judge,^*

Sitting by Designation.

The sole issue in this appeal is whether the trial court failed to comply with Ariz.Rev. StatAnn. (“A.R.S.”) § 13-702(C) when it articulated as an aggravating circumstance a stipulated sentence in the plea agreement.

FACTS

In March 1992, defendant pled guilty to manslaughter, a class 3 nondangerous felony. He agreed to a stipulated sentence of ten years in prison. The stipulated sentence exceeds the statutory presumptive sentence for a class 3 nondangerous felony.

At the sentencing hearing the trial judge articulated the following aggravating and mitigating circumstances:

I do find the following mitigating circumstances: Your youthful age and the fact that you have no prior felony convictions. The aggravating factors are the stipulation in the plea agreement, the injury to another person not the victim of the manslaughter in Count I, and also the emotional and financial harm caused to the [victim’s] family-

The trial judge then imposed the stipulated sentence of ten years in prison.

DISCUSSION

Defendant argues that the trial judge gave undue emphasis to the plea agreement at the expense of independent consideration of the aggravating and mitigating factors. He contends that the fact that he agreed to a particular sentence in the plea agreement should not vitiate the policy considerations of A.R.S. § 13-702(C) that require a judge to articulate the reasons for the sentence.

A.R.S. § 13-702(C) provides:

The upper or lower term imposed pursuant to section 13-604 or 13-710 or subsection A or B of this section may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.

Defendant cites to State v. Bever, 152 Ariz. 364, 732 P.2d 594 (App.1987), and State v. Holstun, 139 Ariz. 196, 677 P.2d 1304 (App.1983), for the proposition that failure to articulate reasons for imposing a sentence greater than the presumptive is not harmless error. Although we agree with the proposition set forth in those two cases, we find that it does not apply because the facts of this case are distinguishable.

In both Bever and Holstun, the trial judge imposed sentences that were stipulated in the plea agreement and that were in excess of the presumptive term. Bever, 152 Ariz. at 365, 732 P.2d at 595; Holstun, 139 Ariz. at 197, 677 P.2d at 1305. The difference is that in those cases the trial judge failed to articulate any reasons for imposing a sentence above the presumptive. Id. Here, the trial judge clearly articulated the reasons for imposing an aggravated sentence. The fact that he stated that the stipulation in the plea agreement was one of the aggravating factors does not alter our conclusion. While a stipulated sentence is not an aggravating factor, whenever the parties stipulate to a sentence the judge must necessarily take that fact into account in passing sentence. What occurred here appears to be a case of inartful expression, rather than the improper use of an aggravating factor. What the trial judge should have said was:

I am considering the fact that you have entered into a stipulated sentence. I believe the stipulation is appropriate because I find that the following aggravating factors exist: the injury to another person not the victim of the manslaughter in Count I, and also the emotional and financial harm caused to the Harris family.

We assume that this trial judge, well experienced in criminal matters, knows how to reject a stipulated sentence which he believes is too harsh. Since he articulated both mitigating and aggravating factors and did not reject the stipulated sentence, it seems clear to us, under all the factors which he was required to take into account, that he believed the sentence was appropriate. If we were to remand this case for resentencing and tell the judge that a stipulation for a particular sentence is not an aggravating factor, but is nonetheless something he must consider in passing sentence, surely the judge would not reduce the sentence imposed. See State v. Ojeda, 159 Ariz. 560, 769 P.2d 1006 (1989) (remand unnecessary where record clearly shows the trial court would have reached the same result even without consideration of the improper factors).

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

KLEINSCHMIDT, J., concurs.

* The Honorable Michael J. O’Melia, Maricopa County Superior Court Judge, was authorized to participate in the disposition of this matter by the Chief Justice of the Arizona Supreme Court pursuant to article 6, section 3 of the Arizona Constitution.