Opinion
No. 1 CA-CR 15-0790
12-20-2016
STATE OF ARIZONA, Appellee, v. GUADALUPE PUERTA MARTINEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Lawrence Blieden Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-141350-003 DT
The Honorable Joan M. Sinclair, Judge
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Lawrence Blieden
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. BROWN, Chief Judge:
¶1 Guadalupe Puerta Martinez appeals from his convictions and sentences for possession of dangerous drugs for sale (Count One), possession of narcotic drugs for sale (Count Two), possession of drug paraphernalia (Count Three), and misconduct involving weapons (Count Four). Martinez argues the trial court erred by (1) failing to give him proper presentence incarceration credit on each sentence, (2) making clerical errors in the sentencing minute entry, and (3) using his probation status to impose a harsher sentence without a jury finding of probation status. The State concedes error relating to Martinez's first two arguments and thus we modify the sentencing minute entry. In all other respects, we affirm the convictions and sentences.
BACKGROUND
¶2 After a jury found Martinez guilty as charged, it then found that the State had proven two aggravating factors relating to the first two counts: (1) possession of a deadly instrument during the commission of the offense, and (2) commission of the offense for pecuniary gain. Although the State had previously alleged that Martinez committed the offenses while on probation, the State presented no evidence of his probation status and the jury was not instructed to consider it.
¶3 Prior to the sentencing hearing, both the State and Martinez filed sentencing memoranda for the court's consideration. Noting the aggravating factors, the State recommended "[n]o less than the presumptive prison term" would be appropriate and in the interests of justice. Martinez requested that the court consider three mitigating factors and recommended imposition of the "sentences to run concurrently for a sum total of 10 years" including "the presumptive term of 10 calendar years" for Count One. Neither the State nor Martinez made any reference to the State's unproven allegation that Martinez committed the offenses while on probation. At sentencing, the State recommended a ten-year presumptive sentence for Count One and the presumptive sentences for each of the remaining counts, to run concurrently with the sentence for Count One. Martinez did not object to the State's recommendations.
¶4 The trial court sentenced Martinez to the presumptive term of ten years flat on Count One pursuant to Arizona Revised Statutes ("A.R.S.") section 13-3407(E), which outlines specific sentencing requirements for methamphetamine offenses. For the remaining counts, the court ordered that each of the sentences would run concurrently with Count One. Martinez received 195 days of presentence incarceration credit. Martinez then filed this timely appeal.
DISCUSSION
A. Presentence Incarceration Credit
¶5 Martinez argues the court failed to award proper presentence incarceration credit. The State concedes error, acknowledging that Martinez was in custody for 539 days on each of the four offenses for which he was sentenced.
¶6 Based on the State's concession and our own review of the record, we modify the sentencing minute entry to reflect that Martinez is awarded 539 days of presentence incarceration credit to be applied to the sentences imposed on all four counts. See A.R.S. § 13-4037; State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992) (correcting presentence incarceration credit without remanding to the trial court).
B. Sentencing Minute Entry Errors
¶7 Martinez argues the sentencing minute entry misstates the correct surcharge percentage for Count Two, and misstates other aspects of his convictions and sentences. The State concedes these errors occurred.
¶8 An "[o]ral pronouncement in open court controls over the minute entry," and we "can order the minute entry corrected if the record clearly identifies the intended sentence." State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013). Based on our review of the record, we modify the sentencing minute entry as follows: (1) the surcharge on Count Two is 83%; (2) the sentence on Count Two is 9.25 years; (3) the reference to A.R.S. § 13-709.03 in Count One is changed to A.R.S. § 13-3407; (4) indication of "Non Repetitive" in all four counts is changed to "repetitive;" and (5) reference to A.R.S. § 13-702 in all four counts is changed to A.R.S. § 13-703.
C. Probation Status/Presumptive Sentence
¶9 Focusing on Count One, Martinez argues the trial court erroneously believed it had no discretion to sentence him to anything less than a presumptive sentence because the offense was committed while he was on probation, a status that was not presented to or found by the jury. Martinez points to the court's statement at sentencing that "basically he is going to serve the ten. He has no—there's no way around that[,]"as well as defense counsel's unsolicited comment that Martinez "was on probation, so he can't get less than [the] presumptive." Taken in isolation, these comments appear to support Martinez's argument that the court failed to recognize it was not required to impose presumptive sentences. However, the statements must be viewed in a broader context.
¶10 At the sentencing hearing, the trial judge was concurrently sentencing Martinez in a different case in which he had entered into a plea agreement. At the outset, defense counsel indicated that Martinez had submitted a handwritten motion requesting withdrawal from the plea agreement. Specifically, Martinez was concerned about the amount of prison time he would be facing. The judge then clarified that, notwithstanding a conflicting statement in the presentence report, whatever prison term the court imposed under the plea agreement would run concurrently with the sentences in the instant case.
¶11 The trial judge then asked counsel to approach the bench and stated that the "[b]ottom line is, what I was looking at doing is giving him presumptive everything, everything concurrent, so like ten years or something like that." As the bench conference continued, and in response to the prosecutor's comment about what the State would be seeking, the judge explained that what she "was going to do is [impose] ten years flat on [Count One] and everything else is going to be presumptive." Defense counsel commented that "[i]f that's the case, I'm fine going forward today." The court then explained: "[b]ecause basically he's going to serve the ten. He has no -- there's no way around that." Defense counsel commented, "[h]e was on probation, so he can't get less than presumptive." The judge did not acknowledge defense counsel's assertion, but asked whether there was "any legal problem with that sentence," to which both counsel answered "no." The judge then instructed defense counsel to "let [Martinez] know what I'm thinking" and after further discussion, Martinez confirmed he no longer desired to withdraw from the plea agreement and was comfortable proceeding with sentencing in both cases.
¶12 The record does not support Martinez's position that the trial judge believed she was obligated to order the presumptive sentence of ten years' imprisonment pursuant to A.R.S. § 13-708, offenses committed while released from confinement. In pronouncing the sentences, the judge stated:
I'm aware of the aggravating circumstances that were found by the jury; the use of a dangerous instrument or deadly weapon and the fact that these were for pecuniary gain. These -- Counts One and Two were for pecuniary gain. As far as mitigating circumstances, I did read the memorandum that your attorney provided and I do find that there's some mitigation in some family support and your taking responsibility certainly on the offense you have pled guilty on. The Court does find that as far as Count One on the 2012 case is concerned, that the presumptive sentence is appropriate.Given these comments, it clear that the judge considered the aggravating and mitigating circumstances, and specifically concluded that the presumptive sentence was "appropriate." The judge did not suggest in any way that she believed she had no discretion to impose a lesser sentence. And the judge's earlier statement to counsel that there was "basically" no way around Martinez serving ten years merely reflected the judge's observation of what sentence she intended to impose so that Martinez could make an informed decision about withdrawal from the plea agreement. Thus, we presume the judge permissibly exercised her discretion in imposing the sentence on Count One rather than erroneously applying a mandatory minimum pursuant to A.R.S. § 13-708. See State v. Thurlow, 148 Ariz. 16, 19 (1986) ("[T]he legislature has determined the range of punishment appropriate for a given crime," but "the ultimate responsibility for fitting the punishment to the circumstances . . . still rests with the judiciary."); State v. Medrano, 185 Ariz. 192, 196 (1996) (recognizing that trial "[j]udges are presumed to know and follow the law and consider all relevant sentencing information before them.").
¶13 In sum, probation status was not at issue in this case. The State made no attempt to prove to the jury that Martinez was on probation when he committed the four crimes. Neither the sentencing memoranda nor the sentencing minute entry refer to Martinez's probation status or A.R.S. § 13-708. The only comments about "probation" and having to serve ten years were made by defense counsel, who was mistaken. Notwithstanding those assertions, nothing in the record reflects that the trial judge made the same error. Looking at the record as a whole, we conclude that the judge properly exercised her discretion in imposing the presumptive sentence for Count One. We therefore find no error.
CONCLUSION
¶14 Because we accept the State's concession of error as to the first two issues raised, we modify Martinez's sentences and the sentencing minute entry as described above. We otherwise affirm Martinez's convictions and sentences.