THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

GOULD, Judge.

¶ 1 Charles Herbert Brown ("Defendant") appeals the sentences imposed for his convictions of negligent homicide and aggravated assault. For the reasons that follow, we affirm.

Facts and Procedural Background

¶ 2 At rush hour, in a highly populated area, Defendant was speeding. Several of his friends were passengers in his vehicle. At the time of the collision, he was driving ninety-two miles-per-hour on a street where the speed limit was forty-five miles-per-hour. When Defendant first observed the victims' vehicle, it was making a left-hand turn across his lane of traffic. Defendant hit his brakes and skidded at least one hundred and forty feet, but his vehicle was still traveling over sixty miles-per-hour when it crashed into the victims' car.

¶ 3 The youngest victim, a three-year-old in her car seat, suffered serious physical injuries and brain damage; she died four days later as a result of the collision. Her grandmother, who had been driving, survived, but was seriously injured. Neither Defendant nor any of his passengers were seriously hurt.

¶ 4 The jury found Defendant guilty of negligent homicide, a class four felony, and aggravated assault, a class three felony; both dangerous offenses. It also found that the young age of the three-year-old was an aggravating circumstance as to the negligent homicide conviction.

¶ 5 Defendant was sentenced to an aggravated term of eight years for the negligent homicide conviction and a presumptive term of seven and a half years for the aggravated assault conviction. The court ordered the sentences to be served consecutively.1 Defendant timely appeals these sentences.

Discussion

¶ 6 Defendant argues that the trial court: (1) abused its discretion by failing to consider his proffered mitigation evidence at sentencing, and (2) violated his constitutional protection against cruel and unusual punishment by imposing a "disproportionately severe" sentence.

I. Mitigation Evidence

¶ 7 When the trial court pronounced Defendant's sentence, it listed the aggravating and mitigating circumstances it considered in determining the sentence. Defendant contends that because the court failed to specifically mention some of the mitigation evidence he presented at the mitigation hearing, the court did not consider this evidence. Defendant acknowledges that the court properly considered and discussed all of the statutory mitigating factors; however, he argues that the court abused its discretion by failing to consider his "non-statutory mitigation" before imposing his sentence.

¶ 8 There is no requirement that a court consider evidence that is not related to a statutorily-specified mitigating circumstance. State v. Long, 207 Ariz. 140, 148, ¶ 41, 83 P.3d 618, 626 (App. 2004) ("If evidence proffered in mitigation is not a specified mitigating circumstance set forth in A.R.S. § 13-702(D)(1)-(4), the trial court is not obligated to even consider the evidence, though, in its discretion, it may do so pursuant to A.R.S. § 13-702(D)(5).") (interpreting previous version of § 13-701); State v. Anderson, 199 Ariz. 187, 194, ¶ 40, 16 P.3d 214, 221 (App. 2000) (explaining that a trial court may consider non-statutory mitigating factors in its discretion, but is not required to do so).

¶ 9 Here, the court considered each of the statutory mitigating factors, including Defendant's age, his capacity to appreciate his conduct, whether he was under duress, whether his participation in the crime was minor, and whether he complied with traffic code statutes mandating participants remain at the scene of an accident and render assistance. A.R.S. § 13-701(E)(1)-(5) (West 2011).2 The court was not required to consider anything else when determining whether mitigating circumstances were present. Long, 207 Ariz. at 148, ¶ 41, 83 P.3d at 626; Anderson, 199 Ariz. at 194, ¶ 40, 16 P.3d at 221.

¶ 10 Moreover, the mere fact that the court did not specifically mention Defendant's proffered mitigation evidence when it pronounced Defendant's sentence does not mean the court failed to consider it. A trial court "is not required to find that mitigating circumstances exist merely because mitigating evidence is presented; the court is only required to give the evidence due consideration." State v. Cazares, 205 Ariz. 425, 427, ¶ 8, 72 P.3d 355, 357 (App. 2003).

¶ 11 Although it was not required to do so, the court heard Defendant's arguments and evidence regarding the non-statutory mitigating factors; it is therefore presumed to have considered these arguments and evidence. See id. at ¶ 7 (explaining that "we presume the court considered any evidence relevant to sentencing that was before it").

¶ 12 Defendant identifies two types of non-statutory mitigating factors that he argues the court should have considered: (1) the victims' lawsuit against the City of Phoenix and (2) the testimony of a mitigation specialist who testified that Defendant was "remorseful, had a `bumpy' childhood, minimal criminal history, and a will to achieve and improve his circumstances while incarcerated."

¶ 13 The court heard argument regarding the City of Phoenix lawsuit and admitted the proffered complaint and disclosure statement into evidence. The court specifically stated that it would consider the City of Phoenix pleadings. It further explained, "I don't want to preclude any possible mitigation from coming in, . . . the whole purpose of the sentence[ing] is to get the full picture." These comments show that the court considered the evidence, but merely found the allegedly mitigating evidence unpersuasive. The court's questions to Defendant's counsel during argument regarding these pleadings further demonstrate that the court was considering this evidence.

¶ 14 In addition, the court heard Defendant's mitigation specialist's testimony that Defendant "did not have — a really great childhood," that his criminal history was minimal, that he was "extremely remorseful," and that he had been trying to improve his circumstances while in prison by getting his GED and taking all available classes. The court reviewed the specialist's report during the lunch break.

¶ 15 The mere fact that the court did not summarize all of the mitigation evidence presented by Defendant in pronouncing its sentence does not mean the court failed to consider this evidence. See State v. Winans, 124 Ariz. 502, 505, 605 P.2d 904, 907 (App. 1979) (explicitly rejecting the requirement that trial judges "specifically state what information will not be used in the sentencing decision"). But even assuming for the sake of argument that the court did not "consider" this evidence, there would still be no abuse of discretion, because as explained above, all that is required is that the court consider the statutory mitigating circumstances if they are presented.

¶ 16 Defendant does not argue that the court failed to allow him to present any evidence or arguments. The court considered the statutory mitigating circumstances as well as the non-statutory mitigating circumstances proffered by Defendant; the court was not required to find that mitigating circumstances existed merely because this evidence was presented. Cazares, 205 Ariz. at 427, ¶ 8, 72 P.3d at 357. Thus, it was no abuse of discretion for the court to impose an aggravated sentence for the negligent homicide charge; the jury had already found that the young age of the grand-daughter was an aggravating circumstance. See id. at ¶ 6 ("Provided the trial court fully considers the factors relevant to imposing sentence, we will generally find no abuse of discretion.") (citing State v. Webb, 164 Ariz. 348, 793 P.2d 105 (App. 1990)).

II. Sentence Imposed

¶ 17 Whether a sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment receives de novo review. State v. Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011). However, "courts are extremely circumspect in their Eighth Amendment review of prison terms." State v. Berger, 212 Ariz. 473, 475, ¶ 10, 134 P.3d 378, 380 (2006). "[O]nly in `exceedingly rare' cases will a sentence to a term of years violate the Eighth Amendment's prohibition on cruel and unusual punishment." Id. at 477, ¶ 17, 134 P.3d at 382 (2006).

¶ 18 When evaluating whether a sentence is grossly disproportionate, we consider each conviction and sentence individually, not cumulatively. Id. at 479, ¶ 28, 134 P.3d at 384 ("`Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.'") (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988)). Thus, "if the sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate." Berger, 212 Ariz. at 479, ¶ 28, 134 P.3d at 384.

¶ 19 Defendant did not argue that either of his two sentences was "grossly disproportionate" standing alone until his reply brief. Normally, we would deem such arguments waived. State v. Edmisten, 220 Ariz. 517, 522 n.2, ¶ 10, 207 P.3d 770, 775 n.2 (App. 2009) ("An argument first raised on appeal in the reply brief is waived, and we will not address it."). However, even if this argument had not been waived, Defendant's claim lacks merit for the reasons discussed below.

¶ 20 When evaluating Eighth Amendment challenges, we first determine whether there is a threshold showing of gross disproportionality by comparing "the gravity of the offense [and] the harshness of the penalty." Berger, 212 Ariz. at 476, ¶ 12, 134 P.3d at 381. We do not compare the sentence with the sentences imposed for other crimes within the same state or the sentences imposed for the same crime in other states unless we first find such a threshold showing. Id.

¶ 21 Here, we find no such threshold showing. Defendant received an eight-year aggravated sentence for the negligent homicide conviction, a class four dangerous felony pursuant to A.R.S. § 13-1101, 1104, 710, 702, 702.01, 801 and 704. The presumptive sentence for a class four dangerous felony without any historical priors is six years pursuant to A.R.S. 13-704(A). The maximum sentence for such a felony is eight years. Id. The jury found the aggravating circumstance of the victim's young age, and the court determined that no mitigating circumstances were present. Eight years for negligently operating a dangerous instrument in a manner that caused the death of a young child is not "grossly disproportionate" given our legislature's decision to sentence more harshly offenses involving dangerous instruments or weapons. State v. Olsen, 157 Ariz. 603, 608, 760 P.2d 603, 608 (App. 1998) ("Arizona Supreme Court decisions have recognized that offenses involving dangerous instruments or weapons have consistently been treated more severely than offenses considered as nondangerous.").

¶ 22 The presumptive sentence for an aggravated assault, a class three felony, is seven and a half years. A.R.S. § 13-704. Defendant received this sentence for the aggravated assault of the grandmother. For reasons similar to those discussed above, a sentence of seven and a half years for operating a dangerous instrument in a criminally negligent manner that results in severe injuries to another is not disproportionate, let alone "grossly disproportionate," such that this sentence qualifies as cruel and unusual punishment.

¶ 23 We thus find that neither of Defendant's sentences constitutes cruel and unusual punishment.

Conclusion

¶ 24 For the foregoing reasons, we affirm.

JOHN C. GEMMILL, Presiding Judge, PETER B. SWANN, Judge, concurring.