Opinion
No. 2 CA-CR 2017-0372
05-08-2018
THE STATE OF ARIZONA, Appellee, v. WARREN BRADLEY MABES, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pinal County
No. S1100CR201700502
The Honorable Steven J. Fuller, Judge
AFFIRMED AS AMENDED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 After a jury trial, Warren Mabes was convicted of aggravated assault, a dangerous, repetitive, class three felony, first-degree criminal trespass, a class six felony, with two historical prior felony convictions, which the state alleged and Mabes admitted were committed while on probation, and three class one misdemeanors: trespass, criminal damage, and driving while under the influence of an intoxicant. On appeal, Mabes contends, and the state concedes, the trial court committed fundamental error when it sentenced him to a class one misdemeanor on count four rather than a class two misdemeanor.
¶2 Among the other counts, count four of the indictment charged Mabes with criminal damage, a class one misdemeanor, based on his having broken the window of the home he invaded in February 2017. The class one classification was based on damage valued between $250 and $1,000. See A.R.S. § 13-1602(B)(5). After the state presented its case to the jury and rested, it admitted it did not have sufficient evidence of the specific value of the property damage in count four. As the state requested, the trial court removed the damage values from the jury verdicts and agreed that, if Mabes were to be found guilty on count four, the court would designate the offense as a class two misdemeanor rather than a class one based on property damage valued at $250 or less. Mabes was found guilty of that offense, as well as the others, but the court and parties overlooked the designation of the offense at sentencing, characterizing all of the misdemeanors as class one misdemeanors. The court sentenced Mabes to concurrent, presumptive and enhanced prison terms of 11.25 years on count one, 3.75 years on count two, and six-month jail terms on counts three, four and five, which was time he had served, given the 262 days' presentence incarceration credit to which Mabes was entitled.
¶3 Mabes contends that by failing to designate count four as a class two rather than a class one misdemeanor and sentence him accordingly, the trial court committed fundamental error. We agree.
"[I]mposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, ¶ 4 (App. 2002). The maximum jail term the court could have imposed on count four was four months, see A.R.S. § 13-707(A)(2), and it is clear from the record the term would have been concurrent with all other terms. We therefore need not remand this matter for resentencing, rather, as Mabes requests, we amend the judgment of conviction to reflect a four-month jail term on count four, which is a class two, rather than a class one, misdemeanor. Cf. State v. Ojeda, 159 Ariz. 560, 561-62 (1989) (if judge relies on inappropriate sentencing factor, we "affirm without remand only where the record clearly shows the trial court would have reached the same result even without consideration of the improper factors"). In all other respects, the convictions and sentences imposed are affirmed.