Opinion
1 CA-CR 20-0487
10-14-2021
STATE OF ARIZONA, Appellee, v. ENRIQUE ESTEVAN ACOSTA, Appellant.
Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee Maricopa County Public Defender, Phoenix By Mark E. Dwyer Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2018-152193-001 The Honorable Joseph P. Mikitish, Judge
Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee
Maricopa County Public Defender, Phoenix By Mark E. Dwyer Counsel for Appellant
Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
Judge Lawrence F. Winthrop was a sitting member of the court when the matter was assigned to this panel. He retired effective June 30, 2021. In accordance with the authority granted by Article 6, Section 3, of the Arizona Constitution and A.R.S. § 12-145, the Chief Justice of the Arizona Supreme Court designated Judge Winthrop as a judge pro tempore for the Court of Appeals, Division One, to participate in resolving cases assigned to the panel during his term in office.
MEMORANDUM DECISION
MCMURDIE, JUDGE
¶1 Enrique Acosta appeals from his convictions of threatening or intimidating and burglary in the third degree and the resulting sentences. Acosta's counsel filed a brief per Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Acosta was allowed to file a supplemental brief but did not do so. Counsel asks this court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we requested Penson briefing to determine whether Acosta's prior marijuana conviction constituted a historical prior felony offense and whether there was resulting fundamental error. After reviewing the briefing from the State and Acosta, we affirm Acosta's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 The State alleged that Acosta entered or remained in the victim's fenced residential yard and threatened or intimidated her with a golf club.
¶3 During the trial's guilt phase, an officer testified that Acosta matched the description on the 9-1-1 call and carried a golf club when arrested. The victim testified that Acosta waved something and confronted her, an officer who detained the defendant returned her golf club, and she always left the golf club in her backyard. The jury convicted Acosta on both counts.
¶4 During the trial's aggravation phase, the State presented the following aggravating factors: (1) Acosta was on probation at the time of the arrest; (2) the victim was at least 65 years old on the date of the offense; (3) the victim was emotionally harmed by the encounter; and (4) Acosta committed the offense expecting a receipt of pecuniary value. The jury found the State proved the four aggravators for both counts.
¶5 At sentencing, the court admitted fingerprint evidence identifying Acosta from prior convictions and minute entries from the two criminal cases. The court found the following priors: armed robbery, a class 2 felony; unlawful flight from law enforcement, a class 5 felony; and marijuana possession or use, a class 6 felony. The court found all three priors to be historical. The court considered the evidence, criminal history, and aggravating and mitigating factors. It sentenced Acosta to a presumptive term of 10 years for the burglary conviction and a concurrent term equal to his presentence incarceration for the threatening and intimidating conviction. Acosta appealed.
DISCUSSION
¶6 We have read and considered counsels' briefs and have reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We find no fundamental error.
¶7 Acosta was present and represented by counsel at all stages of the proceedings against him. The record reflects the superior court afforded Acosta all his constitutional and statutory rights and conducted the proceedings following the Arizona Rules of Criminal Procedure. The court held appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the jury's verdicts. The sentence imposed was within the statutory range. The court made no reversible error in granting Acosta presentence incarceration credit.
The Penson order requested briefing concerning whether Acosta's prior convictions qualified as historical priors. Both parties agree his Marijuana conviction qualifies as a historical prior conviction. See State v. Christian, 205 Ariz. 64, 66-67, ¶¶ 6-21 (2003) (drug offense under the threshold qualifies as a historical prior). The court may have erred by finding that Acosta's prior armed robbery and unlawful flight from law enforcement convictions each constitute a historical prior felony conviction. If Acosta committed both offenses "on the same occasion" under A.R.S. § 13-703(L), the two offenses would only constitute one prior historical felony conviction. The court made no finding on whether the two offenses occurred on the same occasion, but the offenses occurred on the same date. This error, however, would not be fundamental. Even with only two historical prior felonies, Acosta would still be a category-three repetitive offender under A.R.S. § 13-703(C) and face a 10-year presumptive sentence under A.R.S. § 13-703(J).
The court appears to have awarded Acosta 12 extra days of presentence incarceration credit. From his arrest to his release on bail, and from his subsequent arrest to the day before sentencing, he accumulated 129 days of presentence incarceration credit. See § 13-712(B) (time in custody pursuant to an offense is credited against the term of imprisonment until the sentence is imposed). Yet Acosta received 141 days of presentence incarceration credit. But we lack jurisdiction to correct such an error. State v. Dawson, 164 Ariz. 278, 281 (1990).
CONCLUSION
¶8 Acosta's convictions and sentences are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Acosta's representation in this appeal will end after informing Acosta of the outcome of this appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).