Opinion
1 CA-CR 12-0006
09-11-2012
STATE OF ARIZONA, Appellee, v. BILLY W. PHILLIPS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Jill L. Evans, Mohave County Appellant Defender Office By Jill L. Evans, Mohave County Appellant Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c),
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule
111, Rules of the Arizona
Supreme Court)
Appeal from the Superior Court in Mohave County
Cause No. S8015CR2011
The Honorable Steven F. Conn, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Jill L. Evans, Mohave County Appellant Defender Office
By Jill L. Evans, Mohave County Appellant Defender
Attorneys for Appellant
Kingman NORRIS, Judge ¶1 Billy W. Phillips timely appeals from his convictions and sentences for two counts of unlawful removal of theft detection devices. After searching the record on appeal and finding no arguable question of law that was not frivolous, Phillips' counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court permitted Phillips to file a supplemental brief, but he did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Phillips' convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Phillips. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 On May 9, 2011, an employee of a retail store observed a man -- Phillips -- acting suspiciously in the electronics department. The employee reported what he had observed to another employee who reviewed a store surveillance video that showed Phillips unsuccessfully using a tool in an attempt to remove a theft detection device from a GPS unit. This employee also reviewed a surveillance video from the next day, May 10, 2011, which showed Phillips successfully removing the theft detection device from the GPS unit. The video showed Phillips placing it in his shopping basket, entering the store's restroom, leaving the restroom, and then leaving the store. The store did not find the GPS unit in the restroom. ¶3 On May 12, 2011, Phillips returned to the store and store employees saw him take "something" and put it under his shirt. Phillips then entered a fitting room and, after Phillips left the fitting room, a store employee found a theft detection device, wrappings, and tags for a set of headphones. A store employee called police and police arrested Phillips as he was attempting to leave the store. A store employee ultimately located the headphones in a frozen food freezer. After a police officer advised Phillips of his Miranda rights, Phillips identified himself in still photographs taken from the May 9th and 10th surveillance videos. Phillips told police he had hidden a gaming system behind some pillows in a different area of the store. He denied, however, cutting the antitheft device off the GPS unit and taking the headphones. ¶4 A jury convicted Phillips of both counts as charged. After the jury returned the verdicts, the court, based on testimony and evidence presented by the State, found Phillips had one historical prior felony conviction for purposes of sentence enhancement. The court sentenced Phillips to a slightly mitigated prison term of 1.5 years on each count with the sentences to run consecutively. See Ariz. Rev. Stat. ("A.R.S.") § 13-703(B)(2)(I) (Supp. 2011). The court gave Phillips 134 days of presentence incarceration credit.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Although we note the superior court gave Phillips credit for one extra day of presentence incarceration credit, see State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987) ("Where the date sentence is imposed serves, as here, as the first day of sentence . . . it does not also count for presentence credit . . . ."), we will not "correct sentencing errors that benefit a defendant, in the context of his own appeal, absent a proper appeal or cross-appeal by the state." State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848 (1990).
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DISCUSSION
¶5 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Phillips received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶6 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charges, Phillips' presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Phillips, through counsel, spoke at sentencing and the court imposed sentences within the range of acceptable sentences for his offenses.
CONCLUSION
¶7 We decline to order briefing and affirm Phillips' convictions and sentences. ¶8 After the filing of this decision, defense counsel's obligations pertaining to Phillips' representation in this appeal have ended. Defense counsel need do no more than inform Phillips of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶9 Phillips has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Phillips 30 days from the date of this decision to file an in propria persona motion for reconsideration.
_____________________
PATRICIA K. NORRIS, Judge
CONCURRING: _____________________
ANN A. SCOTT TIMMER, Presiding Judge
_____________________
DONN KESSLER, Judge