NOTICE: NOT FOR PUBLICATION.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).
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SARAH MARIA DISTEFANO, Appellant.
No. 1 CA-CR 13-0560
FILED 1-30-2014
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
STATE v. DISTEFANO
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.
N O R R I S, 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.
2
STATE v. DISTEFANO
Decision of the Court
¶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.
:mjt
3