Opinion
2 CA-CR 2012-0188
05-22-2013
THE STATE OF ARIZONA, Appellee, v. ANDREA JOSEPHINE SIMON, Appellant.
Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery Tucson Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20112868001
Honorable Richard S. Fields, Judge
AFFIRMED IN PART; VACATED IN PART
Isabel G. Garcia, Pima County Legal Defender
By Stephan J. McCaffery
Tucson
Attorneys for Appellant
HOWARD, Chief Judge. ¶1 After a jury trial, appellant Andrea Simon was convicted of four counts of sale and/or transfer of a narcotic drug, cocaine, a class two felony. The trial court sentenced Simon to minimum, concurrent, four-year prison terms on each count. Counsel has filed an opening brief in compliance with Anders v. California, 386 U.S. 738, 744 (1967), and State v. Clark, 196 Ariz. 530, ¶ 30, 2 P.3d 89, 96 (App. 1999), and avows he has reviewed the entire record and has found no meritorious issue to raise on appeal. He requests that this court review the record for error. Simon has not filed a supplemental brief. ¶2 Having reviewed the record as requested, and having viewed the evidence in the light most favorable to sustaining the verdicts, we conclude there was substantial evidence Simon violated A.R.S. § 13-3408(A)(7), thereby supporting the convictions. State v. West, 226 Ariz. 559, ¶¶ 15-16, 250 P.3d 1188, 1191 (2011). The evidence included the testimony of an undercover officer who purchased cocaine or cocaine base from Simon on four separate occasions, as alleged in the indictment, and the chemist who identified the substance Simon had sold. ¶3 In addition, the minimum, four-year prison terms the trial court imposed were within the statutory parameters, see A.R.S. § 13-702(D), and the record reflects they were imposed in a lawful manner. See State v. House, 169 Ariz. 572, 573, 821 P.2d 233, 234 (App. 1991) (sentence outside applicable range illegal); State v. Anderson, 181 Ariz. 18, 19-20, 887 P.2d 548, 549-50 (App. 1993) (sentence imposed in unlawful manner when court sentences defendant without material information). However, we have discovered the sentencing minute entry provides that the fines, fees, and/or assessments the court had imposed were "reduced to a criminal restitution order [CRO] . . . ." The CRO was recorded on May 30, 2012. But as this court has determined, based on A.R.S. § 13-805(C), "the imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 658 Ariz. Adv. Rep. 4, ¶ 2 (Ct. App. Apr. 8, 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Therefore, because this portion of the sentencing minute entry is not authorized by statute, we vacate the CRO. The convictions and sentences are otherwise affirmed. ¶4 We affirm the convictions and sentences imposed for the reasons stated in this decision.
_________________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: _________________
PETER J. ECKERSTROM, Presiding Judge
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MICHAEL MILLER, Judge