Cited by

ciate” that Brown was not “taking any responsibility for [his] decisions to be where [he is] right now.” ¶49 Under the Fifth Amendment, a trial court cannot sentence a defendant to an aggravated term “based on his ‘lack of contrition,’ which ‘is, for legal purposes, tantamount to a refusal to admit guilt.’” (); see also Mitchell v. United States, 526 U.S. 314, 327-28 (1999) (court cannot draw adverse inference from defendant’s silence at sentencing).

¶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”); (explaining that a trial court’s reliance on a defendant’s failure to publicly admit guilt “to aggravate” the sentence imposed “offends the Fifth Am

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.”

at 317–18, ¶¶ 9, 11–15, because “[a]s contrition or remorse necessarily imply guilt, it would be irrational or disingenuous to expect or require one who maintains his innocence to express contrition or remorse,”

(“[I]t would be irrational or disingenuous” to expect a defendant “who maintains his innocence to express contrition or remorse.

¶7 Prejudice exists if, absent the improperly considered aggravating factors, the superior court “could have reasonably imposed a lighter sentence.” ¶ 16 (App. 2011); –57 (App. 1995) (“When a trial court relies on both proper and improper factors in aggravating a sentence, this court will uphold its decision only [when] the record clearly shows the trial court would have reached the same result even without consideration of the improper factors.”) (citation omitted) (internal q

(declining to reach the remaining issues once the court found grounds for resolution,); ¶ 7 (App. 2012) (stating an appellate court will uphold the superior court’s ruling if correct for any reason).

(once the court finds grounds for resolution it need not reach other issues).

(once the court found grounds for resolution, it declined to reach the remaining issues).

(the court need not review other arguments if one argument is dispositive).

(once the court found grounds for resolution, it declined to reach the remaining issues).

(once the court finds grounds for resolution it may decline to reach remaining issues).

set forth on the record”); -57, -92 (App. 1995) (remand for resentencing necessary when “record does not reveal” whether sentencing judge would have imposed same sentence when not considering improper factor).

-57, -92 (App. 1995) (“When a trial court relies on both proper and improper factors in aggravating a sentence, this court will uphold its decision only where the record clearly shows the trial court would have reached the same result even without consideration of the improper factors.” (interna

In contrast, “[i]f a defendant admits his guilt, this can be used as additional mitigating evidence, provided the defendant is truly remorseful for his crime.” Id.; (“Remorse can be a mitigating factor with the defendant having the burden of proof by a preponderance of the evidence.”).

However, a “convicted defendant’s decision not to publicly admit guilt is irrelevant to a sentencing determination[.]” ¶ 12 (2011) ( (App. 1991)).

suggests [she] was unwilling to participate in a counseling program”—as long as she “did not have to incriminate herself further by discussing the details of her case, or the surrounding circumstances.” she asserts the trial 1 Because our resolution of other issues Hernandez raises on appeal does not meet the criteria for publication, we have addressed those issues in a separate memorandum decision pursuant to Rule 111(h), Ariz. R. Sup.

¶ 12 Contrary to Loney’s assertion, , is not helpful to his claim of prosecutorial misconduct.

-57, -92 (App. 1995) (necessary to 12 The state also argues that any error was harmless because the court considered the evidence in mitigation.

(holding that the trial court abused its discretion in admitting expert testimony that "the victim’s behavior was consistent with the abuse having occurred”); -54 , -89 (App.1995) (holding that evidence on "child molester profile” was improperly admitted absent expert testimony or foundation on the reliability of the source).