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State v. Schell

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 17, 2014
No. 1 CA-CR 12-0581 (Ariz. Ct. App. Jun. 17, 2014)

Opinion

No. 1 CA-CR 12-0581

06-17-2014

STATE OF ARIZONA, Appellee, v. DOUGLAS DWAYNE SCHELL, Appellant.

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Cory Engle 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NOTICE: NOT FOR PUBLICATION.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. CR2010-127025-001

The Honorable Lisa Daniel Flores, Judge


AFFIRMED AS CORRECTED


COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined. NORRIS, Judge:

¶1 Douglas Dwayne Schell appeals from his convictions and sentences for five counts of misconduct involving weapons, each a class 4 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Schell's 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 granted counsel's motion to allow Schell to file a supplemental brief in propria persona, but he did not do so. After reviewing the entire record, we find no fundamental error and therefore affirm Schell's convictions and sentences as corrected.

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 Schell. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

¶2 On May 17, 2010, Schell seized a package of motorcycle parts that had been delivered to his house that his ex-girlfriend, I.G., asserted belonged to her. Schell left his house with the motorcycle parts, and I.G. then went into Schell's house and took a Colt .45 from underneath his mattress to hold as collateral for the motorcycle parts. Both I.G. and Schell called police multiple times to report their respective versions of the alleged thefts. I.G. informed police Schell was "armed." She also told police that, in addition to the Colt .45, he had other firearms inside his house.

¶3 When police arrived at Schell's house to investigate, Schell informed them he had called police because "he had a gun, which was stolen from inside his house." He also informed police that he was a prohibited possessor and that there were other guns in his house, including an SKS rifle, a Remington shotgun, a Mossberg shotgun, and a Ruger .45 handgun. Police searched the house and found three of the guns in a room being used by an acquaintance who was temporarily staying with Schell. At Schell's direction, they found the Ruger .45 handgun at the top of the closet in the same room. Although Schell had initially stated the Colt .45 was his and that he had "guns" in his house for protection, he later asserted, first, that all of the firearms belonged to his mother, who did not live with him and, second, that he was holding them as collateral for money owed to him by various individuals.

¶4 After confirming Schell was a convicted felon and had not had his civil rights restored, police arrested him. A grand jury indicted him on five counts of misconduct involving weapons -- one count for each gun.

¶5 A jury convicted Schell on all counts. The superior court found Schell had five prior felony convictions and sentenced him as a category three offender to the presumptive term of ten years imprisonment on each count, to run concurrently. The count granted Schell 283 days of presentence incarceration credit. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-701, -703(C), -703(J) (Supp. 2013).

Although the Arizona Legislature amended statutes cited in this decision after May 17, 2010, the revisions are immaterial to the resolution of Schell's appeal. Thus, we cite to the current version of these statutes.

DISCUSSION

¶6 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Schell received a fair trial. Although Schell waived his right to be present at some proceedings, including trial, by voluntarily absenting himself, see Ariz. R. Crim. P. 9.1, he was present at all other critical stages and was represented by counsel at all stages of the proceedings, with the exception of two appearances. Those exceptions, however, did not violate Schell's right to counsel.

Schell was unrepresented at one trial management conference and the bond forfeiture hearing.
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¶7 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of 12 members, and the court properly instructed the jury on the elements of the charges, Schell's 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, Schell was given an opportunity to speak at sentencing and did so, and his sentences were within the range of acceptable sentences for his offenses.

¶8 The sentencing minute entry, however, contains two errors. First, pursuant to A.R.S. § 13-712(B) (2010), a defendant is entitled to presentence incarceration credit for "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense . . . ." The record reveals Schell was in custody for two days when he was first arrested for the offense and for 284 days while he was awaiting sentencing. Thus, Schell was entitled to 286, rather than 283, days of presentence incarceration credit. We therefore correct the sentencing minute entry to reflect this. See A.R.S. § 13-4037(A) (2010); Ariz. R. Crim. P. 31.17(b).

¶9 Second, the sentencing minute entry reflects Schell was ordered to pay for DNA testing, although the superior court did not order Schell to pay for testing at the hearing. We therefore correct the minute entry to omit the requirement Schell pay for DNA testing. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013).

CONCLUSION

¶10 We decline to order briefing and affirm Schell's convictions and sentences as corrected.

¶11 After the filing of this decision, defense counsel's obligations pertaining to Schell's representation in this appeal have ended. Defense counsel need do no more than inform Schell 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).

¶12 Schell 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 Schell 30 days from the date of this decision to file an in propria persona motion for reconsideration.


Summaries of

State v. Schell

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 17, 2014
No. 1 CA-CR 12-0581 (Ariz. Ct. App. Jun. 17, 2014)
Case details for

State v. Schell

Case Details

Full title:STATE OF ARIZONA, Appellee, v. DOUGLAS DWAYNE SCHELL, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 17, 2014

Citations

No. 1 CA-CR 12-0581 (Ariz. Ct. App. Jun. 17, 2014)