Opinion
No. 1 CA-CR 13-0560
01-30-2014
STATE OF ARIZONA, Appellee, v. SARAH MARIA DISTEFANO, Appellant.
Arizona Attorney General's Office, Phoenix By Adele Ponce Counsel for Appellee Law Offices of Nicole Farnum, Phoenix By Nicole T. Farnum Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS
AUTHORIZED. ARIZ. R. SUP. CT. 111(c).
Appeal from the Superior Court in Yavapai County
No. V1300CR201180031
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Adele Ponce
Counsel for Appellee
Law Offices of Nicole Farnum, Phoenix
By Nicole T. Farnum
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined.
NORRIS, Judge:
¶1 Sarah Maria Distefano appeals from the superior court's order revoking her probation and imposing presumptive sentences for two counts of theft and two counts of forgery. On appeal, she argues the superior court should have specified the aggravating factors it considered in sentencing her to the presumptive sentences. Because Distefano did not raise this objection in the superior court, we review solely for fundamental error and find none. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) ("A defendant who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases that involve [fundamental error]." (citations omitted) (internal quotation marks omitted).
¶2 At the disposition hearing, Distefano asked the superior court to reinstate her on probation. The court denied her request stating:
Your abysmal performance on probation and the recommendations of the probation department say that we don't have anything else to offer you. We've sent you to inpatient treatment. We've provided you with increased supervision. We have tried to have you participate in drug court. And I understand you had some mental health issues, which I do find as a mitigating factor.
Your performance on probation, abysmal; however, I do find as mitigating factors, you are struggling from depression. You have a plethora of family support. When I weigh the mitigating and aggravating factors, I do find that a presumptive sentence in the Arizona Department of Corrections is appropriate.
¶3 As an initial matter, despite the court's general reference to "aggravating factors," Distefano has failed to demonstrate the court actually considered aggravating factors in imposing the sentences. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (defendant bears burden of persuasion in fundamental error review). When viewed in context, the reference to "aggravating factors" is more likely a reference to Distefano's "abysmal" performance on probation. As the court also noted, and the record reflects, Distefano had a "long line of failure to comply with the directives of probation." She was directed to attend a halfway house and left without permission from her probation officer, failed to attend substance abuse counseling, failed to submit to drug and alcohol testing, and consumed alcohol.
¶4 Moreover, aggravating factors are those factors which allow a court to impose a sentence that is greater than the presumptive. Ariz. Rev. Stat. § 13-702(A) (2010). Contrary to Distefano's argument on appeal, when, as here, the superior court imposes a presumptive sentence, it is not required to specify aggravating factors. State v. Johnson, 210 Ariz. 438, 441 n.1, ¶ 11, 111 P.3d 1038, 1041 n.1 (App. 2005) (citing State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980)).
¶5 Therefore, we affirm the superior court's order revoking Distefano's probation and imposing presumptive sentences for two counts of theft and two counts of forgery.