Opinion
No. 2 CA-CR 2016-0339
05-10-2017
THE STATE OF ARIZONA, Appellee, v. ERIC JAMES ALVAREZ, Appellant.
COUNSEL Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pima County
No. CR20143603001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED AS CORRECTED
COUNSEL Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard concurred. ECKERSTROM, Chief Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Appellant Eric Alvarez was charged with continuous sexual abuse of a child, four counts of sexual conduct with a minor under fifteen, and three counts of sexual exploitation of a minor under fifteen, all dangerous crimes against children. Following a jury trial in his absence, Alvarez was convicted of all of the charged offenses. The trial court sentenced him to three consecutive life sentences without the possibility of release for thirty-five years, one twenty-year prison term, and three seventeen-year prison terms, to be served consecutively to each other and to his sentence in a federal matter.
Alvarez was present for jury selection and opening arguments, but elected not to attend the rest of the trial.
The trial court granted the state's oral motion to dismiss a fourth count of sexual conduct with a minor under fifteen (Count Eight). --------
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), avowing she has reviewed the entire record and found no "arguably meritorious issue to raise on appeal," and asking that we search the record for fundamental error. In compliance with State v. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d 89, 97 (App. 1999), counsel has also provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." Alvarez has not filed a supplemental brief.
¶3 Viewed in the light most favorable to sustaining the verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence was sufficient to support the jury's findings of guilt. See A.R.S. §§ 13-1405, 13-1417, 13-3553(A)(2). The evidence presented at trial showed that in 2008 and 2009, Alvarez had forced the then five- and six-year-old victim to engage in oral sexual conduct with him "more than five times" at a relative's home, and "more than twenty times" in 2010 and 2011, when Alvarez lived with the victim and her family; also while Alvarez was living with the victim's family, he forced the victim to remove her pants and engage in mutual oral sex with him more than "one time" but fewer than "five times," and he also touched the victim's breast under her clothing; some time "before Halloween," Alvarez performed anal sex on the victim twice in his apartment, which he moved to in 2012; and, "around" July 4, Alvarez forced the victim to engage in oral sex with him and performed anal sex on her in his apartment. On the hard drives attached to a computer located in Alvarez's apartment and on Alvarez's cellular telephone, officers discovered videos depicting the victim performing oral sex on what was "believed" to be an adult male, in addition to a photograph depicting the same conduct. We further conclude the sentences are within the statutory limits and were imposed properly. See A.R.S. § 13-705(A), (C), (D).
¶4 Pursuant to our obligation under Anders, we have reviewed the record for fundamental error and found none. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search for fundamental error). However, in our review of the record pursuant to Anders, we noted two errors in the sentencing minute entry. First, although the trial court imposed three life sentences without the possibility of release for counts two, three, and four, the sentencing minute entry reflects life sentences without the possibility of parole for thirty-five years for these counts. The court's oral pronouncement of sentence clearly indicates the court's intent and therefore controls. See State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013). Indeed, the governing statute does not provide for parole. See A.R.S. § 13-705(A). We thus correct the sentencing minute entry to reflect life sentences without the possibility of release for thirty-five years for counts two, three, and four. Second, we correct the sentencing minute entry to reflect that the twenty-year sentence imposed for count one, continuous sexual abuse of a child under fifteen, was imposed pursuant to A.R.S. § 13-705(C), rather than § 13-705(B).
¶5 Accordingly, we affirm Alvarez's convictions and his sentences as corrected.