illegal sentence is fundamental error in Arizona

2023State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). 1 In our review, we identified an evidentiary issue not raised by the parties: the DOC records contain no information about the CR2000–003971 marijuana case.

2020State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). ¶5 “An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.” A.R.S. § 13-116.

2026State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007); see State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 (App. 2005) (“The imposition of an illegal sentence is fundamental error.”). ¶29 The record confirms the jury convicted Welfenberg for two convictions based on one act and is serving identical 14-year concurrent sentences for two counts of manslaughter, despite an offense to one victim.

2008See State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 , 126 P.3d 159, 163 (App.2005) (holding that the "imposition of an illegal sentence is fundamental error") (citation omitted).

2024State v. Cox, 201 Ariz. 464 , 468 ¶ 13 (App. 2002).

2021State v. Cox, 201 Ariz. 464, 468, ¶ 13 (App. 2002). ¶32 Because § 13-707(A) prohibits a court from ordering a misdemeanor sentence to be served in the department of corrections, Tejeda’s concurrent misdemeanor sentence on Count 6 constitutes fundamental error.

2026Because a defendant who murders a single victim may only receive a single conviction and sentence for the homicide, State v. Williams, 232 Ariz. 158, 161, ¶ 10 (App. 2013) (“[T]he crime of murder of a single victim necessarily results in one conviction and one sentence”), Welfenberg’s dual convictions and sentences for manslaughter of the same victim are inconsistent with Arizona law. ¶30 Therefore, pursuant to A.R.S. § 13-4036, this Court modifies Welfenberg’s manslaughter convictions, merging them into a single conviction and vacating one of the 14-year concurrent sentences.

2026State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007); see State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 (App. 2005) (“The imposition of an illegal sentence is fundamental error.”). ¶29 The record confirms the jury convicted Welfenberg for two convictions based on one act and is serving identical 14-year concurrent sentences for two counts of manslaughter, despite an offense to one victim.

2025Although the imposition of an illegal sentence is fundamental error, see State v. Munninger, 213 Ariz. 393, 397, ¶ 11 (App. 2006), Tapia-Munoz did not receive an illegal sentence.

2019State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). ¶6 Under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

2019Davis bears the burden of establishing that “(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.” State v. Smith, 219 Ariz. 132, 136, ¶ 21 (2008); State v. Escalante, 245 Ariz. 135 , 142, ¶ 21 (2018). ¶5 The imposition of an illegal sentence is fundamental error.

2019State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). ¶6 Under the Sixth Amendment, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

2019State v. Pesqueira, 235 Ariz. 470, 478, ¶ 29 (App. 2014); State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002).

2018See State v. Martinez, 226 Ariz. 221, 224, ¶ 17 (App. 2011) (imposition of an illegal sentence is fundamental error). ¶14 Smith argues that because the court imposed minimum enhanced sentences for his child-prostitution offenses, the court must resentence him to seven years on each child-prostitution offense – the 5 STATE v. SMITH Decision of the Court minimum term of incarceration for a first-time child-prostitution offender under the older version of the statute.

2016See State v. Alvarez, 205 Ariz. 110, 116, ¶ 18 , 67 P.3d 706, 712 (App. 2003) (recognizing that an illegal sentence is fundamental error, which is not waived by the failure to raise it below (citation omitted)). ¶9 The “specification of punishment for crime is peculiarly a question of legislative policy.” State v. Arnett, 119 Ariz. 38, 47 , 579 P.2d 542, 551 (1978) (citations omitted).

2016See State v. Alvarez, 205 Ariz. 110, 116, ¶ 18 , 67 P.3d 706, 712 (App. 2003) (recognizing that an illegal sentence is fundamental error, which is not waived by the failure to raise it below (citation omitted)). ¶9 The “specification of punishment for crime is peculiarly a question of legislative policy.” State v. Arnett, 119 Ariz. 38, 47 , 579 P.2d 542, 551 (1978) (citations omitted).

2016See State v. Alvarez, 205 Ariz. 110, 116, ¶ 18 , 67 P.3d 706, 712 (App. 2003) (recognizing that an illegal sentence is fundamental error, which is not waived by the failure to raise it below (citation omitted)). ¶9 The “specification of punishment for crime is peculiarly a question of legislative policy.” State v. Arnett, 119 Ariz. 38, 47 , 579 P.2d 542, 551 (1978) (citations omitted).

2016See State v. Alvarez, 205 Ariz. 110, 116, ¶ 18 , 67 P.3d 706, 712 (App. 2003) (recognizing that an illegal sentence is fundamental error, which is not waived by the failure to raise it below (citation omitted)). ¶9 The “specification of punishment for crime is peculiarly a question of legislative policy.” State v. Arnett, 119 Ariz. 38, 47 , 579 P.2d 542, 551 (1978) (citations omitted).

2005County of Maricopa, 207 Ariz. 409, 411, ¶ 3 , 87 P.3d 97, 99 (App.2004) (“An illegal sentence is fundamental error that we must correct.”).

2005County of Maricopa, 207 Ariz. 409, 411, ¶ 3 , 87 P.3d 97, 99 (App.2004) (“An illegal sentence is fundamental error that we must correct.”).