State v. Ware

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LEAH NIKOLE WARE, Appellant.

No. 1 CA-CR 23-0186
FILED 04-10-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-103825-001
The Honorable David O. Cunanan, Judge, Retired

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
VACATED AND REMANDED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip A. Tomas
Counsel for Appellee

Law Offices of Stephen L. Duncan P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Daniel J. Kiley joined.

B R O W N, Judge:

¶1 This appeal is presented to us pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Defendant Leah Nikole Ware was given the
opportunity to file a supplemental brief, but she did not do so. Our
obligation is (1) to ascertain whether counsel has “conscientiously
performed” their duty to review the record for arguable issues, and (2) to
conduct our own review of the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).

¶2 Our initial review of the record revealed an issue on whether
the trial court’s apparent consideration of Ware’s lack of remorse and
failure to admit guilt as a factor for sentencing purposes constitutes
fundamental, prejudicial error that requires resentencing. See State v.
Carriger, 143 Ariz. 142, 162 (1984); State v. Trujillo, 227 Ariz. 314, 318,
¶¶ 14–15 (App. 2011). We then requested supplemental briefing on that
issue under Penson v. Ohio, 488 U.S. 75 (1988). The parties filed their
respective briefs, and for the reasons discussed below, we accept the State’s
concession that Ware must be re-sentenced on one of the counts for which
she was convicted.

BACKGROUND

¶3 We view the evidence in the light most favorable to sustaining
the conviction and resolve all reasonable inferences against Ware. State v.
Guerra, 161 Ariz. 289, 293 (1989). On January 28, 2021, shortly after 11:00
p.m., V.R. was driving home from work in her Kia in the westbound lanes
of Loop 202 near Scottsdale Road.1 As she drove, V.R. saw the headlights
of a vehicle traveling east in the westbound lanes headed directly towards
her. The vehicle driving the wrong way was a Mazda driven by Ware. V.R.

1 We use initials to protect the victim’s privacy. See Ariz. R. Sup. Ct.
111(i).

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Decision of the Court

swerved left into the high occupancy vehicle lane to avoid a collision with
Ware, but Ware maneuvered into that lane and hit V.R.’s vehicle head-on.
V.R. testified that it appeared Ware’s actions were intentional. Electronic
data from the Mazda showed Ware accelerated as she approached V.R.’s
Kia and did not apply the brakes. Four vehicles were ultimately involved
in the collision sequence.

¶4 Emergency personnel transported V.R. and Ware to a
hospital. Ware showed no signs of impairment, and a toxicological
examination revealed no drugs or alcohol in her system. V.R. suffered
serious injuries, including compound fractures, a hole in her aorta,
punctured lungs, and multiple lacerations. By the time of trial, V.R. had
undergone six surgical procedures with more needed in the future.

¶5 A grand jury indicted Ware with three counts of
endangerment and three counts of aggravated assault. See A.R.S.
§§ 13-1201, -1204. At trial, only one of the victims of the endangerment
counts testified, and that person did not suffer any significant injuries. At
the close of the State’s case, the trial court granted Ware’s motion for
judgment of acquittal on two counts of aggravated assault allegedly
committed against two police officers. The jury ultimately found Ware
guilty of aggravated assault committed against V.R. and three counts of
endangerment involving persons in two other vehicles. The jury then
found, as an aggravating circumstance on the aggravated assault count,
that V.R. suffered physical, emotional, and/or financial harm. The trial
court sentenced Ware to presumptive terms of 2.25 years’ imprisonment for
each count of endangerment and an aggravated term of ten years’
imprisonment for aggravated assault. The court further ordered that all
sentences would run concurrently.

¶6 Near the end of the sentencing hearing, the trial court
explained its decision on the aggravated assault count in part as follows:

All right. Ms. Ware, I was contemplating a -- a presumptive
term in this based upon your lack of criminal history and your
mental health, but I agree with the victims that you [have]
shown, in essence, no remorse for this. You indicate you have
injuries yourself, but those are self-[inflict]ed whereas the
victim in this case – she was truly an innocent victim of your
consequences and your actions -- the consequences of your
actions, I should say. And to this day, you don’t believe that,
in essence, you really did anything wrong. The jury found
something differently than that, and all the facts in the case,

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the jury finding is supported by all the evidence that was
submitted. And you can’t discount the lifelong nature of
those injuries that the victim has suffered, and that’s why I
gave you a greater than the presumptive term; however, I also
look at other cases that you have in terms of where someone
actually died. And based upon what kind of -- that range of
sentencing -- and unfortunately, as a judge you get to sit up
here, and you get to see all those particular cases -- I do find
the aggravated term appropriate.

¶7 Ware timely appealed, we have jurisdiction under A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

¶8 In her Penson briefing, Ware argues the trial court’s decision
to aggravate the sentence for aggravated assault based on her failure to
admit responsibility and her lack of remorse constitutes fundamental,
prejudicial error.

¶9 When “sentencing a defendant, a court may not consider his
or her lack of remorse or failure to admit guilt.” Trujillo, 227 Ariz. at 318,
¶¶ 14–15; see also Carriger, 143 Ariz. at 162 (1984) (explaining that a
“defendant is guilty when convicted and if he chooses not to publicly admit
his guilt, that is irrelevant to a sentencing determination”); State v. Hardwick, 183 Ariz. 649, 656 (App. 1995) (explaining that a trial court’s reliance on a
defendant’s failure to publicly admit guilt “to aggravate” the sentence
imposed “offends the Fifth Amendment privilege against self-
incrimination”).

¶10 The State concedes that the aggravated assault count should
be remanded for resentencing because “Ware has shown the trial court
likely would not have reached the same sentencing decision if it did not
consider the improper factors . . . .” See Trujillo, 227 Ariz. at 319, ¶ 21; see
also Carriger, 143 Ariz. at 162. Based on our own review of the record and
relevant caselaw, together with the State’s concession, we conclude that the
trial court’s consideration at sentencing of Ware’s lack of remorse and
failure to admit guilt constitutes fundamental, prejudicial error requiring a
remand for resentencing for the aggravated assault count.

¶11 After reviewing the entire record, we detect no other errors in
this proceeding. See Clark, 196 Ariz. at 541, ¶ 50. The record reflects Ware
was either present and represented by counsel at all critical stages of the
proceedings, or that Ware waived her presence, such as when Ware

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voluntarily absented herself from much of the trial. The evidence presented
supports all of Ware’s convictions and the sentences for the endangerment
counts fall within the range permitted by law. Except as noted above, as far
as the record reveals these proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure and Ware’s constitutional and
statutory rights.

CONCLUSION

¶12 We affirm Ware’s convictions and sentences for the three
counts of endangerment, as well as the conviction for aggravated assault,
but we vacate the sentence for aggravated assault and remand for
resentencing on that count only. As to all four convictions and the
sentences for the three counts of endangerment, defense counsel has no
further obligations unless counsel finds an issue that may be appropriately
submitted to the Arizona Supreme Court by petition for review. State v.
Shattuck, 140 Ariz. 582, 584–85 (1984). Ware has 30 days from the date of
this decision to file a pro se motion for reconsideration. Ware has 30 days
from the date of this decision to proceed, if she wishes, with a pro se petition
for review or, if she has filed a timely motion for reconsideration she has 15
days after that motion is decided. See Ariz. R. Crim. P. 31.21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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