Opinion
No. 1 CA-CR 10-0956
02-28-2012
STATE OF ARIZONA, Appellee, v. DARRYL LAMONT WHITE, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant Darryl White 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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 Maricopa County
Cause No. CR2010-114787-001 DT
The Honorable Arthur T. Anderson, Judge
CONVICTIONS AND SENTENCES AFFIRMED;
INCARCERATION CREDIT MODIFIED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix
Darryl White
Appellant
Douglas JOHNSEN, Judge
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Darryl Lamont White's convictions of shoplifting, a Class 1 misdemeanor, and organized retail theft, a Class 4 felony. White's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999) . Counsel now asks this court to search the record for fundamental error. White filed a supplemental brief. After reviewing the entire record and considering White's brief, we affirm his convictions and sentences but modify his presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶2 A loss-prevention employee at a retail store saw White walking around the store with an empty backpack. The loss-prevention employee then went to observe White on the store's video surveillance system. On the surveillance system, he observed White taking products off the shelf and putting them in his backpack. White then zipped up the backpack and headed toward the exit of the store, beyond all points of sale. Just before White reached the store's exterior sliding glass doors, the loss-prevention employee and another employee stopped him. They found $320.89 of merchandise in White's backpack. After police came, they placed White under arrest, read him his Miranda rights and proceeded to question him. White told an officer he came to the store to steal and that he planned to sell the items to a convenience store.
Upon review, we view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against White. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
Miranda v. Arizona, 384 U.S. 436 (1966).
¶3 White was charged with two counts of organized retail theft pursuant to Arizona Revised Statutes ("A.R.S.") section 13-1819 (2012), a Class 4 felony. A jury found him guilty of one count of organized retail theft, but, on the other count, it found him guilty of the lesser-included offense of shoplifting. The superior court found White had two historical prior convictions and was on probation at the time of the offenses. The court sentenced White to time served on the misdemeanor and 10 years on the felony, with 234 days' presentence incarceration credit.
Absent material revisions after the date of an alleged offense, we cite a statute's current Westlaw version.
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¶4 White timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033 (2012).
DISCUSSION
A. White's Supplemental Brief.
¶5 In his supplemental brief, White argues that pursuant
to Arizona Rule of Criminal Procedure 4.1(b), because no complaint was filed against him within 48 hours of his initial appearance, he should have been released and prosecution should have ceased. He also argues the prosecutor violated Arizona's doctrine of separation of powers by proceeding with the prosecution in violation of Rule 4.1(b).
¶6 Because White raises this issue for the first time on appeal, we review it only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) . Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. (citation omitted). The defendant bears the burden of proving fundamental error, and "must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶¶ 19-20.
¶7 Rule 4.1(b) requires that when a person is arrested without a warrant, a complaint must be filed within "48 hours from the time of the initial appearance"; otherwise, "the defendant shall be released from jail." White's initial appearance took place on March 18, 2010, and the complaint was filed on March 22, 2010. Pursuant to Arizona Rule of Criminal Procedure 1.3, however, when the time period is fewer than seven days, intermediate weekends are not included. Ariz. R. Crim. P. 1.3(a). Accordingly, Saturday and Sunday, March 20 and 21, are not counted in calculating the 48-hour time within which a complaint was required to be filed against White.
¶8 Although the complaint was filed at 4:51 p.m. on March 22, we cannot determine whether, omitting the intermediate weekend days, it was filed within 48 hours of White's initial appearance because the time of that appearance on March 18 is not in the record. Even assuming that the 48-hour deadline was exceeded by a few hours, however, White does not demonstrate how the additional time he may have spent in jail went to the foundation of his case, took away a right essential to his defense or was so serious he could not have received a fair trial. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. He also fails to show any prejudice from the alleged violation. See id. at ¶ 20. White thus fails to meet his burden of showing that a Rule 4.1(b) violation occurred, and, if it did, that it was fundamental error.
B. Fundamental Error Review.
¶9 The record reflects White received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. Although a voluntariness hearing was neither requested nor conducted, the record contains no suggestion that the court committed fundamental error by admitting White's statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974).
¶10 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of 12 members with two alternates. The court properly instructed the jury on the elements of the charges, the State's burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report and imposed legal sentences for the crimes of which White was convicted.
¶11 A defendant is entitled to presentence incarceration credit for all time spent in custody pursuant to an offense. A.R.S. § 13-712(B) (2012). A failure to award the correct amount of presentence incarceration credit towards a defendant's sentence constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). The court awarded White 234 days of presentence incarceration credit on his 10-year sentence. White was arrested on March 18, 2010, and was in custody until he was sentenced on November 8, 2010. He therefore is entitled to 235 days of presentence incarceration credit, and we modify the judgment accordingly.
CONCLUSION
¶12 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. As noted in ¶ 11, we have modified the judgment of conviction to reflect incarceration credit of 235 days.
¶13 After the filing of this decision, defense counsel's obligations pertaining to White's representation in this appeal have ended. Defense counsel need do no more than inform White 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, White has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. White has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
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DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
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PATRICIA A. OROZCO, Judge
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LAWRENCE F. WINTHROP, Chief Judge