NOT FOR PUBLICATION

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

MEMORANDUM DECISION

KELLY, Presiding Judge.

¶1 Abel Hinojosa was convicted of two counts of aggravated assault with a deadly weapon and sentenced to concurrent presumptive terms, the longer of which is 11.25 years. He appeals from his sentence for count two, claiming the trial court may have mitigated the sentence had it not considered improper aggravating factors. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Hinojosa's sentences. See State v. Delgado, 232 Ariz. 182, ¶ 2, 303 P.3d 76, 79 (App. 2013). In December 2008, Hinojosa was watching a boxing match while attending a birthday party at J.A.'s house. Disappointed that his fighter lost, Hinojosa challenged others at the party to a fight. He then started fighting with a number of people, including J.A. and B.B. Hinojosa stabbed both of them, puncturing one of J.A.'s lungs. Hinojosa left the party after B.B. subdued him.

¶3 Hinojosa was convicted following a jury trial of two counts of aggravated assault with a deadly weapon, to wit: a knife. The jury found count one, involving J.A., to be a dangerous offense, and count two, involving B.B., to be nondangerous but repetitive. Hinojosa was sentenced to concurrent terms of imprisonment. After he appealed his convictions and sentences, this court affirmed his convictions in a memorandum decision but vacated his sentences and remanded for resentencing. State v. Hinojosa, No. 2 CA-CR 2012-0026 (memorandum decision filed Feb. 6, 2013).

¶4 At the resentencing hearing, the trial court allowed Hinojosa to present new mitigation evidence that had arisen since the first sentencing hearing. After considering both mitigating and aggravating factors, however, the court did not find that "a mitigated sentence on either of the[] Counts [was] appropriate." It sentenced Hinojosa to a presumptive, 7.5-year prison term for count one and a concurrent, presumptive term of 11.25 years for count two. Hinojosa timely appealed.

Discussion

¶5 Hinojosa claims the trial court improperly applied aggravating factors when sentencing him on count two and that this may have affected its weighing of mitigating and aggravating factors and its decision to sentence him to the presumptive term.1 The court applied two aggravating factors to count two: Hinojosa's "use, threatened use, or possession of a deadly weapon or dangerous instrument during the commission of the crime"; and his two prior felony convictions within the past ten years. As mitigating factors, the court found Hinojosa had remorse and "tremendous family support" and had made rehabilitative efforts while in prison. After weighing these factors, however, the court found no "reason to give [Hinojosa] a mitigated sentence on either of the[] Counts."

¶6 Hinojosa argues the trial court improperly used his prior felony convictions both to enhance the range of his sentence and as an aggravating factor. He further argues it was improper for the court to consider his use of a deadly weapon or dangerous instrument as an aggravating factor because it was an element of the crime for which he was convicted. He then claims that because neither factor "could . . . legitimately be used in aggravation on Count 2," this court should remand for resentencing on that count. He states that "[h]ad the court recognized there were only mitigating factors and no aggravating factors in Count 2, it may well have felt compelled to impose a mitigated sentence on that count."

¶7 We generally review for an abuse of discretion a trial court's imposition of a sentence that is within the prescribed sentencing range. State v. Jenkins, 193 Ariz. 115, ¶ 25, 970 P.2d 947, 953 (App. 1998). Whether the court may employ a given factor to aggravate a sentence presents a question of law we review de novo. State v. Tschilar, 200 Ariz. 427, ¶ 32, 27 P.3d 331, 339 (App. 2001). However, because Hinojosa did not present these issues to the court or object to its use of either aggravating factor, we review only for fundamental error.2 See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Cañez, 202 Ariz. 133, ¶ 32, 42 P.3d 564, 578 (2002). Hinojosa bears the burden of demonstrating both that fundamental error exists and that it caused him prejudice. See State v. Munninger, 213 Ariz. 393, ¶ 10, 142 P.3d 701, 704-05 (App. 2006).

Prior Felony Convictions3

¶8 Hinojosa first argues that the trial court's use of his "two prior convictions for both enhancement and aggravation was illegal." Because these convictions already had been used to enhance his sentencing range as a repetitive offender, he maintains they could not then be considered as aggravating factors.4 Hinojosa urges that "even though the court did not impose an aggravated sentence, it declined to impose a mitigated sentence because it considered the two prior convictions as aggravating factors." Although he admits that "Arizona's sentencing scheme provides separately for enhancement of a sentence with prior convictions and aggravation of a sentence based on prior convictions," he claims that "generally" the same convictions are not used to both enhance and aggravate a sentence, which he claims is "unfair."5

¶9 Hinojosa was charged with and convicted of aggravated assault using a deadly weapon or dangerous instrument, a class three felony. The trial court found he had been convicted of two prior class six felonies in 2004 and 2006 and sentenced him on count two as a repetitive offender pursuant to A.R.S. § 13-604(D). See 2007 Ariz. Sess. Laws, ch. 248, § 1. That section prescribes a presumptive term of 11.25 years when the defendant has two or more historical prior felony convictions. The presumptive term may be aggravated under § 13-702(C)(11),6 which provides that the court shall determine and consider as an aggravating circumstance whether "[t]he defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense."

¶10 A trial court may use a defendant's prior felony convictions both to enhance his sentencing range and as an aggravating factor. State v. Bonfiglio, 228 Ariz. 349, ¶ 21, 266 P.3d 375, 380 (App. 2011); State v. Ritacca, 169 Ariz. 401, 403, 819 P.2d 987, 989 (App. 1991) ("Double jeopardy or double punishment principles do not preclude the trial court from using prior convictions to impose an enhanced sentence under the recidivist statute, A.R.S. § 13-604, and to find aggravating circumstances under A.R.S. § 13-702."). The trial court here did not err by considering Hinojosa's prior felony convictions as aggravating factors for purposes of sentencing.

Use, Threatened Use, or Possession of a Deadly Weapon or Dangerous Instrument

¶11 Hinojosa next claims the trial court improperly considered as an aggravating factor his use, threatened use, or possession of a deadly weapon or dangerous instrument. Because the use of a deadly weapon was "an essential and irreducible element of the offense" of which he was convicted, he claims it cannot also be used to aggravate his sentence.

¶12 Hinojosa was charged with and convicted of aggravated assault using a deadly weapon or dangerous instrument in violation of A.R.S. §§ 13-1204(A)(2) and 13-1203(A).7 As we noted above, during sentencing the trial court found as an aggravating factor Hinojosa's use, threatened use, or possession of a deadly weapon or dangerous instrument during the commission of the assault. An element of an offense may be considered as an aggravating factor if the legislature has specified that it may be so used. State v. Lara, 171 Ariz. 282, 284-85, 830 P.2d 803, 805-06 (1992); State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980); Tschilar, 200 Ariz. 427, ¶ 33, 27 P.3d at 339. Here, however, the legislature has specifically prohibited trial courts from considering the use of a deadly weapon or dangerous instrument to both enhance and aggravate a sentence when such use is an essential element of the crime. As § 13-702(C)(2) states:

(Emphasis added.) We therefore conclude—and the state concedes—the trial court erred by considering the use of a deadly weapon or dangerous instrument as an aggravating factor.

Request for Remand

¶13 Hinojosa argues that in light of the trial court's improper consideration of an aggravating factor, this court should remand for resentencing on count two, because he believes the court may now impose a mitigated sentence. He claims that because the court "found only two aggravating factors, both of which could not legitimately be used in aggravation on Count 2," "[t]here were . . . only mitigating factors." Therefore, he urges, had the court been aware there were only mitigating factors as to count two, "it may well have felt compelled to impose a mitigated sentence on that count." Because we have concluded the court erred by considering the use of a deadly weapon as an aggravating factor, we must determine whether the court's use of an improper aggravating factor amounts to fundamental, prejudicial error.

¶14 When a trial court relies on inappropriate factors when imposing a sentence, an appellate court "should affirm without remand only where the record clearly shows the trial court would have reached the same result even without consideration of the improper factors." State v. Ojeda, 159 Ariz. 560, 561-62, 769 P.2d 1006, 1007-08 (1989). However, when a defendant fails to object to the use of the aggravating factors at sentencing, the appellate court will remand only if the defendant shows the trial court likely would have reached a different result had it not considered the improper aggravating factor. See Henderson, 210 Ariz. 561, ¶¶ 26-27, 115 P.3d at 608-09.

¶15 Hinojosa does not allege he was prejudiced by the trial court's reliance on the improper aggravating factor, and identifies nothing in the record suggesting the court would have imposed a mitigated sentence but for its reliance on the improper factor. Rather, he claims that "had the court recognized there were only mitigating factors and no aggravating factors in Count 2, it may well have felt compelled to impose a mitigated sentence on that count." Alleging the possibility of a different outcome does not satisfy the defendant's burden to show prejudice under fundamental error review. See Henderson, 210 Ariz. 561, ¶¶ 26-27, 115 P.3d at 608-09.

¶16 Moreover, the portions of the record Hinojosa relies on do not demonstrate the trial court likely would have reached a different result had it not found the improper factor. When determining Hinojosa's sentence, the court considered three mitigating factors: Hinojosa's remorse, his rehabilitative efforts while in custody, and his family support.8 As we have explained above, it properly found as an aggravating factor Hinojosa's two prior felony convictions. At the time of sentencing, the court stated that the offense was "terribly violent" and "caused tremendous harm." The court told Hinojosa: "I can't find any reason to give you a mitigated sentence on either of these Counts." After stating: "I have not been presented with anything that is . . . sufficient for me to find that a mitigated sentence on either of these Counts is appropriate," the court found that "the aggravating and mitigating circumstances outweigh each other."

¶17 Hinojosa claims the trial court's discussion of the violent nature of the offense pertained only to count one, as opposed to count two, which was adjudicated nondangerous. But both offenses involved the same conduct: Hinojosa, while at a party, instigated a fight with two men and injured them both with a knife. The court's statements that these actions were "terribly violent" and "caused tremendous harm" were not limited to either victim, and Hinojosa does not point to any part of the record to show the court gave particular weight to the use of a deadly weapon or dangerous instrument as an aggravating factor or that it would have sentenced him to a mitigated sentence had it not considered that factor. He has thus failed to carry his burden under fundamental error review. See Munninger, 213 Ariz. 393, ¶¶ 9-15, 142 P.3d at 703-06 (no fundamental error where sentencing judge relied on one improper aggravating factor but explicitly found each aggravating factor alone would outweigh the mitigating factors); State v. Ruggiero, 211 Ariz. 262, n.6, 120 P.3d 690, 697 n.6 (App. 2005) (no reversal where trial court relied on invalid aggravating factor but defendant did not demonstrate prejudice); see also Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶18 Because the trial court imposed a presumptive sentence after weighing mitigating and aggravating circumstances, we affirm Hinojosa's sentence. See State v. Risco, 147 Ariz. 607, 610, 712 P.2d 454, 457 (App. 1985) (trial court did not err in imposing presumptive sentence after considering impermissible factor when decision to mitigate or aggravate is discretionary); see also State v. Ovind, 186 Ariz. 475, 478, 924 P.2d 479, 482 (App. 1996) ("A judge must impose a presumptive sentence unless the judge weighs any aggravating and mitigating circumstances and finds that one overbalances the other."); State v. Patchin, 125 Ariz. 501, 501-02, 610 P.2d 1062, 1062-63 (App. 1980) (trial court not required to impose minimum sentence when it finds mitigating circumstances).

Disposition

¶19 For the foregoing reasons, Hinojosa's sentence is affirmed.