Opinion
No. 2 CA-CR 2012-0353
01-15-2014
THE STATE OF ARIZONA, Appellee, v. PHILLIP MICHAEL BARCELO, Appellant.
Lori J. Lefferts, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20100964001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
ECKERSTROM, Judge:
¶1 Phillip Barcelo was convicted after a jury trial of continuous sexual abuse of a child and sentenced to a presumptive, twenty-year prison term. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting she has reviewed the record but found no arguable issue to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for error. Barcelo has not filed a supplemental brief.
¶2 Viewing the evidence in the light most favorable to sustaining the verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), we find sufficient evidence supports the jury's finding of guilt. The victim testified that, when she was seven years old, Barcelo touched her genitals or made her touch his genitals more than three times over a period spanning several months. A.R.S. §§ 13-1410(A), 13-1417(A). And Barcelo's prison term is within the statutory limits and was imposed properly. A.R.S. §§ 13-705(C); 13-1417(B).
¶3 The sentencing minute entry, however, provides that the "fines, fees, and assessments" the trial court had imposed were "reduced to a Criminal Restitution Order" (CRO). When Barcelo was sentenced in 2012, A.R.S. § 13-805 did not permit the entry of a CRO at sentencing. See 2011 Ariz. Sess. Laws, ch. 263, § 1 and ch. 99, § 4. This court has determined that, under the former § 13-805(A), "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, 231 Ariz.
561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).
¶4 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none save the improper entry of the CRO. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). The CRO is vacated; Barcelo's conviction and sentence are otherwise affirmed.