dissenting:
The first sentence of 10.5 years was in fact less than the presumptive; it was a mitigated term.
In my opinion, that sentence was invalid because the court found mitigating factors which were not legally recognizable. I am unable to agree that either a withdrawn plea agreement or illegal drug usage are mitigating factors under A.R.S. § 13-702(E)(5) which will justify a less than presumptive term.
That being the case, the mitigated sentence could not stand and the trial court properly vacated it under rule 24.3. If it had not done so, the state could have successfully challenged the mitigating circumstances on appeal. See A.R.S. § 13-4032(6).
It follows therefore that the trial court correctly resentenced appellant to aggravated concurrent terms of 11.5 years. I would affirm both the conviction and the sentence.