Opinion
No. 1 CA-CR 13-0795
11-18-2014
STATE OF ARIZONA, Appellee, v. SAMUEL PERRYMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Thomas K. Baird Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR2012-122644-003
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Peter B. Swann joined. OROZCO, Judge:
¶1 Samuel Perryman appeals his convictions and sentences for one count of burglary in the first degree, a class 2 felony; one count of armed robbery, a class 2 felony; and five counts of kidnapping, all class 2 felonies. Perryman's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the entire appellate record, no arguable question of law was found. Although Perryman was afforded the opportunity to file an in propria persona supplemental brief, he has not done so.
¶2 Our obligation is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.2d 89, 96 (App. 1999). Finding no reversible error, we affirm Perryman's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶3 Jasmine Adams contacted G.H. to purchase an ounce of cocaine. Although Adams and G.H. agreed to meet at a local store, Adams drove to R.S.'s apartment, which was next to G.H.'s house. Three others lived in the apartment with R.S. — C.H., C.E., and L.S. Adams was accompanied by Perryman, Glenda Warren, and Javonte Diggs. G.H. was home at the time and noticed Adams's car parked in R.S.'s driveway. G.H. briefly left the house, and when he returned, he went into R.S.'s apartment and Adams was there. Warren had also come into the house with Adams. Confused as to why Adams came directly to the apartment, G.H. and Adams had a brief conversation.
¶4 As Adams and Warren were leaving the apartment, Perryman and Diggs ran in. Both men were armed with guns. Without saying anything, Perryman "pistol whipped" L.S., causing L.S. to fall to the ground unconscious. Perryman also "pistol whipped" G.H., causing G.H. to "just [lie] there because [he] didn't want [Perryman] to do anything else to [him]." Perryman then took G.H.'s watch, wallet, jewelry, and a bag of pills. Before leaving the apartment, either Perryman or Diggs held a gun on R.S. and took a game console and several video games. Additionally, either Perryman or Diggs held a gun on C.E and C.H. and instructed C.E. not to "reach for anything." C.E.'s phone and wallet were also taken. Shortly afterwards, both Perryman and Diggs left the apartment, got in the car that Adams and Warren were waiting in, and drove to a hotel where Adams was staying.
¶5 Before G.H. and L.S. went to the hospital for their injuries, G.H. called the police. Officer Rudy Dominguez arrived at the scene and was briefed about the incident. That evening, Officer Jeremy LeBlanc, acting on a tip from Officer Dominguez, located and apprehended Perryman.
¶6 Perryman was charged with nine various felony counts. A jury convicted Perryman on one count of first degree burglary, one count of armed robbery and five counts of kidnapping. The jury found all the charges dangerous. After finding mitigating circumstances, the trial court sentenced Perryman to eight years in prison as to each count, to be served concurrently. Perryman was credited with 539 days of presentence incarceration credit for each count. Perryman timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (West 2014), 134031 and -4033.A.1 (West 2014).
We cite the current version of applicable statutes when no revisions material to this decision have since occurred.
DISCUSSION
I. Count 1: First Degree Burglary
¶7 To secure a conviction for first degree burglary, the State must prove that a defendant entered or remained unlawfully in a residential structure, with intent to commit any theft or felony therein, while knowingly possessing "explosives, a deadly weapon or a dangerous instrument." A.R.S. § 13-1508(A).
¶8 According to the record, Perryman ran inside R.S.'s apartment, uninvited, while possessing a gun, demonstrating an unlawful entrance. See A.R.S. § 13-1506(A)(1). Because Perryman took G.H.'s watch, wallet, jewelry, and bag of pills after "pistol whipping" him, Perryman was armed with a deadly weapon and used force to take property from another person. See A.R.S. §§ 13-1904(A)(2), -1902(A). This was sufficient evidence that Perryman intended to commit armed robbery, a felony. See A.R.S. § 13-1904. Additionally, because G.H. testified that he lied down because he did not want Perryman to "do anything else," G.H. was restrained. See A.R.S. § 13-1304(A). The jury could infer that Perryman restrained G.H. in order to "aid in the commission" of the armed robbery, thereby satisfying the elements of kidnapping. See A.R.S. § 13-1304. This was sufficient evidence for the jury to find Perryman guilty of first degree burglary. II. Count 3: Armed Robbery
¶9 Perryman's second conviction is for armed robbery against G.H. As stated above, to secure a conviction for armed robbery, the State must prove that a defendant, while armed with a deadly weapon, used force to take away property from another person. A.R.S. §§ 13-1902-1904. The record demonstrates that Perryman took G.H.'s possessions after "pistol whipping" him. Therefore, we find sufficient evidence was presented to find Perryman guilty of armed robbery. III. Counts 5-9: Kidnapping
¶10 Perryman's remaining convictions are for kidnapping R.S, C.E., C.H., G.H., and L.S. To secure a conviction for kidnapping, the State must prove that a defendant knowingly restrained another person with the intent to inflict physical injury on the victim or "aid in the commission of a felony." A.R.S. § 13-1304(A)(3). The record demonstrates that Perryman entered R.S.'s apartment with a gun and "pistol whipped" L.S., rendering him unconscious and limiting his physical movement. This was sufficient evidence to find that L.S. was restrained. See A.R.S. § 13-1304(A). Similarly, Perryman restrained G.H., who was also "pistol whipped," because the evidence indicates that G.H. reasonably believed he could be struck again if he moved or refused to hand over his possessions. See id. R.S., C.E., and C.H. all testified that they were aware Perryman was armed, in the apartment, and taking items from the apartment. Had the victims interfered with Perryman's actions or attempted to escape, they may have been injured. Therefore, a jury could find that the victims were "in reasonable apprehension of imminent physical injury." See A.R.S. § 13-1304(A)(4). IV. Dangerous Findings
¶11 Lastly, the jury found that all Perryman's convictions were dangerous. See A.R.S. §§ 13-704, -105. To make a dangerous finding, a jury must find that the offense involved "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." A.R.S. § 13-105. The record demonstrates that Perryman was armed with a gun throughout his time in R.S.'s apartment, used that gun to strike two of the victims, and either Perryman or Diggs pointed a gun at the victims. Thus, we find sufficient evidence was presented for the jury to make a dangerous finding for all convictions.
¶12 Absent an abuse of discretion, Perryman's sentences cannot be disturbed. State v. Fillmore, 187, Ariz. 174, 184, 927 P.2d 1303, 1313 (App. 1996) (citation omitted). The minimum sentence for a class 2 dangerous felony is seven years and the maximum is twenty-one years. A.R.S. § 13-704(A). Because the trial court sentenced Perryman to eight years on each count, to be served concurrently, sentencing was within the proper range. Perryman received presentence incarceration credit from May 1, 2012, the day of his arrest, until October, 22, 2013, the day of his confinement. This totals 539 days; therefore, there was no error.
CONCLUSION
¶13 We have read and considered counsel's brief and have searched the entire appellate record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. The record indicates Perryman was represented by counsel at all critical stages of the proceedings, that the trial court afforded Perryman all of his rights under the Constitution and Arizona statutes, and the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. See Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. Perryman was given an opportunity to speak at sentencing and the sentences imposed were within the statutory limits. Based on our review of the record, we find sufficient evidence supports the jury's verdicts and the trial court imposed a lawful sentence.
¶14 Counsel's obligations pertaining to Perryman's representation in this appeal have ended. Perryman's counsel need do no more than inform Perryman of the status 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, 684 P.2d 154, 156-57 (1984). Perryman has thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. Accordingly, we affirm Perryman's convictions and sentences.