State v. Kleinman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TRINT KLEINMAN, Appellant.

No. 1 CA-CR 24-0653

FILED 11-06-2025

Appeal from the Superior Court in Navajo County
No. S0900CR201800105
The Honorable Dale P. Nielson, Judge Retired

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Law Office of Christian Ackerley, PLLC, Salome
By Christian C. Ackerley
Counsel for Appellant
 STATE v. KLEINMAN
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Vice Chief Judge David D.
Weinzweig joined.

B A I L E Y, Judge:

¶1 Trint Kleinman appeals his 4.5-year sentence for one of three
counts of sexual conduct with a minor, a class 2 non-dangerous felony. For
the following reasons, we affirm that sentence but remove the reference to
Arizona Revised Statutes (“A.R.S.”) section 13-705 in the sentencing minute
entry, which incorrectly indicates the crime is a dangerous crime against
children (“DCAC”).

FACTS AND PROCEDURAL HISTORY

¶2 When Kleinman was about twelve or thirteen years old, he
had sexual contact with his younger sibling (“victim”) three times between
2009 and 2011. In 2017, victim informed her mother about these events. A
jury found Kleinman guilty of three counts of sexual conduct with a minor
under fifteen years of age, each a class 2 felony and DCAC. See A.R.S. § 13-
705. He was sentenced to consecutive, flat-time terms of thirteen years’
imprisonment for each conviction.

¶3 Kleinman timely appealed the sentences and argued they
violated his Eighth Amendment right against cruel and unusual
punishment. Relying on State v. Davis, 206 Ariz. 377 (2003), and the State’s
concession that the sentences were grossly disproportionate to the offenses,
this court vacated Kleinman’s sentences and remanded for the superior
court to resentence him under A.R.S. §§ 13-701, -702, and -7031, as class 2
non-dangerous felony offenses.

1 Section 13-703, which addresses repetitive offender sentencing was added

in 2008. See 2008 Ariz. Sess. Laws, ch. 301, § 28 (2nd Reg. Sess.) (eff. Jan. 1,
2009). It has since been amended, but there were no material revisions
between the 2009 and 2011 versions, which is when the crimes occurred.

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¶4 On remand, the superior court sentenced Kleinman to
concurrent, mitigated sentences of 3.0 years, 4.5 years, and 10.5 years for
counts 1, 2, and 3, respectively.

¶5 Kleinman timely appealed, arguing the 10.5-year sentence for
count 3 violated his Eighth Amendment right against cruel and unusual
punishment. We declined to address his constitutional argument but
modified his 10.5-year sentence as to count 3 to 4.5 years pursuant to A.R.S.
§ 13-703(B)(1), (I) and affirmed his other sentences.

¶6 On November 4, 2024, the superior court sentenced Kleinman
to a mitigated term of 4.5 years’ imprisonment as to count 3, to be served
concurrently with counts 1 and 2. The court’s sentencing minute entry
stated the crime violated A.R.S. § 13-705 and other statutes.

¶7 Kleinman timely appealed, and we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and 13-4033(A)(4).

DISCUSSION

¶8 Kleinman argues his prison sentence and the “highly negative
and destructive effects of [the] case” violate his constitutional rights under
the Eighth Amendment and due process. We address each argument in
turn.

I. Kleinman’s Eighth Amendment Argument

¶9 Kleinman argues the negative impact of the DCAC
designation, and his 4.5-year prison sentence violate the Eighth
Amendment’s prohibition against cruel and unusual punishment. We
address the DCAC designation later in this decision. See infra Section III.

¶10 We review de novo whether a defendant’s sentence complies
with the Eighth Amendment. See State v. Florez, 241 Ariz. 121, 127, ¶ 21
(App. 2016). Because Kleinman did not object on Eighth Amendment
grounds at the November 2024 sentencing hearing, we review only for
fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶
12 (2018). The imposition of an illegal sentence constitutes fundamental,
prejudicial error. State v. McPherson, 228 Ariz. 557, 559, ¶ 4 (App. 2012).

¶11 When reviewing a sentence under the Eighth Amendment,
we first determine whether “there is a threshold showing of gross
disproportionality by comparing ‘the gravity of the offense [and] the

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harshness of the penalty.’” State v. Berger, 212 Ariz. 473, 476, ¶ 12 (2006)
(quoting Ewing v. California, 538 U.S. 11, 28 (2003)). Noncapital sentences
are prohibited only if they constitute an “extreme” sentence that is “grossly
disproportionate to the crime.” Id. at ¶ 13 (quoting Ewing, 538 U.S. at 23).

¶12 Kleinman likens his facts to those in Davis, a case in which our
supreme court vacated a 52-year sentence imposed on a 20-year-old man
who was convicted of having “non-coerced sex with two post-pubescent
teenage girls.” 206 Ariz. at 380, ¶¶ 7-11 (2003). Davis presented an
“extremely rare case” when the facts and circumstances of the defendant’s
offense resulted in an unconstitutionally disproportionate sentence. Berger,
212 Ariz. at 480, ¶ 38. There, each count was charged as a DCAC. Davis,
206 Ariz. at 380, ¶ 7.

¶13 Here, Kleinman’s sentence does not constitute cruel and
unusual punishment. Like the defendant in Davis, Kleinman was young
when he committed the crimes. Id. at 379, ¶ 2. However, unlike the victims
in Davis, Kleinman’s victim was not a post-pubescent teenager who “knew
what [she was] doing and willingly participated,” “sought [the defendant]
out,” and “went voluntarily to [defendant’s] home.” Id. at 384-85, ¶ 36.
Instead, the victim was Kleinman’s younger sister, who was five or six years
old at the time of the crimes.

¶14 Further, unlike the lengthy sentence imposed in Davis, see id.
at 380, ¶ 9, Kleinman received only 4.5 years of incarceration for a course of
misconduct over three dates, and he may be eligible for earned release
credits, see A.R.S. § 41-1604.07(A) (former), (B)(2) (current) (permitting
eligible prisoners to earn release credit of “one day for every six days
served”). And unlike the defendant in Davis who had no criminal record,
see 206 Ariz. at 385, ¶ 36, Kleinman was convicted of sexual conduct with a
minor in June 2017 in another case. In these circumstances, a 4.5-year
sentence is not disproportionate, much less grossly so. See State v. Jackson, 186 Ariz. 490, 492 (App. 1996). Therefore, Kleinman has not met his burden
to show fundamental error. See Escalante, 245 Ariz. at 142, ¶ 21.

II. Kleinman’s Due Process Argument

¶15 Kleinman contends the State’s prosecution of the case
violated his due process rights under the United States Constitution. In
support of his contention, Kleinman argues the State should not have
charged him as an adult and his case should have been adjudicated in
juvenile court.

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¶16 Although Kleinman raised an equal protection argument at
the November 2024 sentencing hearing on similar grounds, he did not
object on due process grounds and thus did not preserve his due process
argument on appeal. See State v. Lopez, 217 Ariz. 433, 434, ¶ 4 (App. 2008)
(“[A]n objection on one ground does not preserve the issue on another
ground. . . . When a party fails to object properly, we review solely for
fundamental error.”) (citations omitted).

¶17 Accordingly, we review his argument for fundamental,
prejudicial error. See Escalante, 245 Ariz. at 140, ¶ 12. “An error is
fundamental if it goes to the foundation of the case, takes away from the
defendant a right essential to his defense, or is of such magnitude that the
defendant could not have possibly received a fair trial.” State v. Johnson, 247
Ariz. 166, 185, ¶ 41 (2019) (citing State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018)).

¶18 Kleinman’s due process argument does not satisfy his burden
on fundamental error review. See generally State v. Jones, 248 Ariz. 499, 501,
¶ 7 (App. 2020) (noting that if a defendant fails to satisfy their burden of
persuasion on any element of fundamental error, the defendant’s claim
fails). He argues being prosecuted as an adult for crimes he committed as
a teenager resulted in “negative and destructive effects” that violated his
due process rights. As an example, he argues “[t]he negative effect on [his]
life caused by this case generally, and the disruption to his life it has
wrought began on the day he was charged. Both have grown steadily
worse as the years have passed and both will continue to grow worse in the
future.” He further states the prosecution of the case “[was] so abusive of
justice and shocking to our common sense of fairness that it’s continued
prosecution abrogates [his] right . . . to due process.” But A.R.S. § 13-107
permits the State to prosecute sexual offenses under §§ 13-1401 to 13-1472
“at any time.” Kleinman was convicted on all three counts under A.R.S. §
13-1405. Therefore, Kleinman has not shown that being prosecuted as an
adult was error, much less fundamental error.

III. Sentencing Minute Entry Correction

¶19 Kleinman asks us to remove the reference to A.R.S. § 13-705,
a DCAC designation, in the November 2024 sentencing minute entry. The
State concedes that, given our prior memorandum decisions in this case,
A.R.S. § 13-705 should not have been included.

¶20 We agree with Kleinman and the State. We can correct
inadvertent errors in sentencing orders on appeal. State v. Vandever, 211

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Ariz. 206, 210, ¶ 16 (App. 2005), disapproved on other grounds by State v.
Aragon ex rel. Pima Cnty., 252 Ariz. 525, 531, ¶ 20 (2022). Thus, we remove
the reference to A.R.S. § 13-705 in the November 2024 sentencing minute
entry.

CONCLUSION

¶21 We modify the November 2024 sentencing minute entry as set
forth above and otherwise affirm Kleinman’s sentence.

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

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