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State v. Varela8/12/2003
ces for her actions that had been manifested in K.'s pain and suffering. The trial court found as mitigating factors Varela's extreme remorse, her lack of a felony record, and her enormous family support. The court found the following were aggravating circumstances: (1) K.'s injuries; (2) K.'s need for continuing therapy, rehabilitation, and future surgeries; (3) K.'s resulting depression; (4) Varela's prior DUI conviction; and (5) the fact that Varela ignored her family's warning not to drive that night. The trial court found the mitigating factors sufficient to warrant presumptive sentences.
In determining an appropriate sentence, a trial court need only consider the evidence presented. State v. Carbajal, 177 Ariz. 461, 463, 868 P.2d 1044, 1046 (App. 1994). Neither must a trial court find mitigating factors just because the defendant presents mitigating evidence. Id. Here, the trial court carefully considered all of the relevant circumstances, noting those circumstances in mitigation that appellant insists warranted a lesser term. But we have no basis for interfering with the court's weighing of those circumstances and its conclusion that they were balanced by the aggravating circumstances.
Varela contends the mitigating evidence was so overwhelming that the trial court erred in imposing presumptive sentences, insisting she should have received substantially mitigated sentences for the aggravated assault convictions. She also contends that the aggravating circumstances the trial court found were improper because they are elements of her crime. We do not agree.
A trial court has broad discretion in sentencing, and if the sentence is within the statutory limits, an appellate court will not disturb the sentence absent a clear abuse of discretion. State v. Ward, 200 Ariz. 387, , 26 P.3d 1158, (App. 2001). We presume the trial court considered all relevant information before it, including evidence in mitigation. State v. Everhart, 169 Ariz. 404, 407, 819 P.2d 990, 993 (App. 1991). The court has discretion to determine how much weight, if any, to give each factor presented. State v. Towery, 186 Ariz. 168, 189, 920 P.2d 290, 311 (1996). In weighing the evidence, the court considers its "quality and strength, not simply the number... of aggravating and mitigating factors" presented. State v. Greene, 192 Ariz. 431, 443, 967 P.2d 106, 118 (1998).
The element of infliction of serious injury cannot serve as an aggravating factor unless it rises to a level beyond that necessary to establish an element of the underlying crime. See A.R.S. § 13-702(C)(1); State v. Tinajero, 188 Ariz. 350, 357, 935 P.2d 928, 935 (App. 1997). The court, here, properly considered the severity of K.'s injuries and the resulting emotional harm as aggravating factors. § 13-702(C)(9).
The convictions and sentences are affirmed.
PETER J. ECKERSTROM, Judge
CONCURRING:
PHILIP G. ESPINOSA, Chief Judge
JOHN PELANDER, Presiding Judge
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