Opinion
No. 1 CA-CR 14-0009 No. 1 CA-CR 14-0010 No. 1 CA-CR 14-0011
11-04-2014
STATE OF ARIZONA, Appellee v. ERIN LEE PERRY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
Nos. CR2012-103224-001, CR2012-113907-001, CR2013-422033-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED AS CORRECTED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined. NORRIS, Judge:
¶1 Erin Lee Perry timely appeals from his conviction and sentence for one count of burglary in the third degree, a class 4 felony ("2013 case"), and the resulting revocation of his probation and subsequent disposition sentences in Maricopa County Superior Court case numbers CR2012-113907 and CR2012-103224. After searching the entire record on appeal and finding no arguable question of law that was not frivolous, Perry's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Perry to file a supplemental brief in propria persona, but Perry did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Perry's conviction and sentence in the 2013 case as corrected. We also affirm the revocation of his probation and subsequent disposition sentence in case number CR2012-113907 as corrected to reflect a two-day increase to his presentence incarceration credit. Finally we affirm the revocation and termination of his probation in case number CR2012-103224.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Perry. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 On May 16, 2012 the superior court in case number CR2012-113907 placed Perry on two years probation for possession of burglary tools, a class 6 felony, and two years probation for resisting arrest, also a class 6 felony ("2012 felony case"). That same day, the court in case number CR2012-103224, also placed him on two years probation for the possession or use of marijuana, a class 1 misdemeanor ("marijuana case").
¶ 3 One year later, in May 2013, a Mesa police officer arrested Perry after a Mesa Community College security guard observed him reach into a light pole in a fenced construction yard at 3:30 a.m. and attempt to pull out the pole's copper wiring. After his arrest, a grand jury indicted Perry for burglary in the third degree, and the State petitioned the superior court to revoke Perry's probation in the 2012 felony case and in the marijuana case. A jury found Perry guilty as charged and that the State had proven beyond a reasonable doubt Perry was on probation at the time he committed the burglary. Before sentencing, the superior court held a "priors trial" and found the State had proven by clear and convincing evidence Perry had two prior felony convictions.
¶4 At sentencing, the superior court determined that as a result of the jury's guilty verdict in the 2013 case, Perry had automatically violated the terms of his probation in the 2012 felony case and in the marijuana case. The court revoked Perry's probation on each offense in the 2012 felony case and sentenced him to a presumptive one-year prison term on each offense, to be served concurrently. The superior court awarded Perry 277 days of presentence incarceration credit against each offense. The court revoked Perry's probation in the marijuana case and terminated probation as unsuccessfully completed. Based on his prior convictions, the court in the 2013 case sentenced Perry to a presumptive ten-year prison term, to begin upon completion of the sentences imposed in the 2012 felony case.
The State did not object to terminating Perry's probation in the marijuana case. When an individual on probation pursuant to Arizona Revised Statutes ("A.R.S.") section 13-901.01(E) (2010) violates that probation "the court shall not impose a term of incarceration" but "shall have new conditions of probation established."
In sentencing Perry in the 2013 case the superior court did not specify the repetitive category applicable to him. The record reflects the superior court correctly sentenced Perry as a category three repetitive offender. Nevertheless, "to facilitate appellate review, trial judges should indicate on the record the specific statutory subsection under which a criminal sentence is imposed." State v. Anderson, 211 Ariz. 59, 60 n.1, 116 P.3d 1219, 1220 n.1 (2005).
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DISCUSSION
¶5 We have reviewed the entire record in the 2013 case, and all relevant portions of the record regarding revocation of Perry's probation in the 2012 felony case and in the marijuana case, for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. In the 2013 case, Perry received a fair trial, was represented by counsel at all stages of the proceedings, and was present at all critical stages. Perry also received a fair hearing on the State's petitions to revoke his probation in the 2012 felony case and in the marijuana case, was represented by counsel at all stages of the probation revocation proceedings, and was present at all critical stages of those proceedings.
¶6 The evidence presented at trial in the 2013 case was substantial and supports the verdict. The jury was properly comprised of eight members, and the superior court properly instructed the jury on the elements of the charge, Perry's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Perry was given an opportunity to speak at sentencing and did so, and his sentence was within the range of acceptable sentences for his offense. The sentences imposed by the court in the 2012 felony case were also within the range of acceptable sentences for his offenses. And finally, the State raised no objection to the termination of Perry's probation in the marijuana case. See supra note 2.
¶7 In our review of the record, we discovered two errors in the superior court's sentencing minute entries. In the sentencing minute entry in the 2012 felony case, the superior court awarded Perry 277 days of presentence incarceration credit against each offense. The record reflects, however, Perry was incarcerated for 279 days: 1 day on January 13, 2012; 66 days from March 11, 2012 until May 15, 2012; and 212 days from May 15, 2013 until December 13, 2013. We therefore correct the sentencing minute entry to reflect 279 days of presentence incarceration credit against each offense. See A.R.S. § 13-712(B) (2010) ("All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offence shall be credited against the term of imprisonment . . . ."). Also, in the 2013 case sentencing minute entry, the court listed "A.R.S. 13-702," a statute that pertains to first time felony offenders and which was inapplicable to Perry. We therefore correct this sentencing minute entry to delete the reference to "A.R.S. 13-702."
CONCLUSION
¶8 We decline to order briefing and affirm Perry's conviction and sentence in the 2013 case as corrected. We decline to order briefing and affirm the revocation of his probation and subsequent disposition sentences in the 2012 felony case as corrected. And, we decline to order further briefing and affirm the revocation and termination of Perry's probation in the marijuana case.
¶9 After the filing of this decision, defense counsel's obligations pertaining to Perry's representation in this appeal have ended. Defense counsel need do no more than inform Perry of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶10 Perry has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Perry 30 days from the date of this decision to file an in propria persona motion for reconsideration.