State v. Bergstrom

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JOSHUA ALAN BERGSTROM, Appellant.

No. 1 CA-CR 23-0423
FILED 01-14-2025

Appeal from the Superior Court in Mohave County
No. S8015CR202200431
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Damoui Law Offices, PLLC, Phoenix
By Shahin Damoui
Counsel for Appellant
 STATE v. BERGSTROM
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Joshua Bergstrom appeals his two felony convictions and
sentences for the sale of narcotic drugs. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Bergstrom sold narcotic drugs to a confidential informant on
three occasions. Police recorded each transaction on video. When
interviewed by police, Bergstrom conceded he “traded drugs for money,”
and “it had been just a few days since he had traded drugs for money.”

¶3 Bergstrom was arrested and charged with three counts of
selling narcotics. The jury found Bergstrom guilty of all three counts, but
the superior court entered a directed verdict of acquittal on the third count
because there was insufficient evidence to show he traded fentanyl in the
third transaction.

¶4 At the sentencing hearing, the court found Bergstrom had
three prior felony convictions, two of which were classified as historical
priors, so the court sentenced Bergstrom under the sentencing range for a
category three repetitive offender and imposed two consecutive mitigated
sentences of 10.5 years each.

¶5 Bergstrom timely appealed. We have jurisdiction. See Ariz.
Const. art. VI, § 9 and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

¶6 Bergstrom appeals both his convictions and sentences. His
arguments are raised for the first time on appeal, so we review for
fundamental error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018)
(issues raised for the first time on appeal are reviewed for fundamental
error). He must show error that is both fundamental and prejudicial. Id.

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 STATE v. BERGSTROM
Decision of the Court

I. Conviction.

¶7 Bergstrom argues he did not “knowingly” sell narcotics
because the informant coerced him to sell the narcotics. See A.R.S. § 13-
3408(A)(7) (prohibiting a person from “knowingly” selling narcotic drugs).
That argument fails because Bergstrom conflates knowledge and
voluntariness. Cf. State v. Alvarado, 219 Ariz. 540, 545, ¶ 16 (App. 2008). The
jury had ample evidence to infer that Bergstrom knowingly sold narcotic
drugs, including video evidence and Bergstrom’s admissions. We discern
no error. See Escalante, 245 Ariz. at 142, ¶ 21 (“[T]he first step in
fundamental error review is determining whether trial error exists.”).

¶8 Bergstrom also argues his trial counsel should have raised the
affirmative defense of entrapment at trial, but this is an ineffective
assistance of counsel claim, which is not reviewable on direct appeal. State
v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007) (holding that ineffective assistance
of counsel claims may be brought only in Rule 32 post-conviction
proceedings).

II. Sentence.

¶9 Bergstrom contends the superior court erred by finding he
had three prior felony convictions. But he only challenges the one
conviction that did not qualify as a historical prior, which made no
difference to his sentencing. To qualify Bergstrom as a category three
repetitive offender, the State need only prove two or more historical prior
felony convictions. A.R.S. § 13-703(C).

¶10 What is more, the superior court did not consider any of his
prior convictions to be aggravating factors, so any potential error was not
prejudicial. See Escalante, 245 Ariz. at 140, ¶ 12 (explaining that, under
fundamental error review, alleged error must be both fundamental and
prejudicial to warrant reversal).

¶11 Finally, Bergstrom claims his cumulative sentence of 21 years
violates the Eighth Amendment. We review constitutional issues de novo.
State v. Kasic, 228 Ariz. 228, 231, ¶ 15 (App. 2011). The Eighth Amendment
of the United States Constitution prohibits cruel and unusual punishments.
U.S. Const. amend. VIII. “[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.” State v. Berger, 212 Ariz. 473, 477, ¶ 17 (2006)
(quoting Ewing v. California, 538 U.S. 11, 22 (2003)). Noncapital sentences
are prohibited only if “grossly disproportionate to the crime.” Id. at 476, ¶
13 (quoting Ewing, 538 U.S. at 23).

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 STATE v. BERGSTROM
Decision of the Court

¶12 Here, Bergstrom received two mitigated, consecutive
sentences under Arizona law as a category three repetitive offender. A
sentence does not become disproportionately long “merely because it is
consecutive to another sentence for a separate offense or because the
consecutive sentences are lengthy in aggregate.” Id. at 479, ¶ 28. And a
sentence is not grossly disproportionate “if it arguably furthers the State’s
penological goals and thus reflects a rational legislative judgment, entitled
to deference.” Id. at 477, ¶ 17 (citation omitted). Here, Bergstrom’s
sentences further the State’s penological goals of punishing and deterring
drug dealers who pose a danger to society. See Wigglesworth v. Mauldin, 195
Ariz. 432, 437, ¶¶ 16–17 (App. 1999).

CONCLUSION

¶13 Affirmed.

AMY M. WOOD • Clerk of the Court
FILED: JR

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