Opinion
No. 1 CA-CR 16-0399
08-31-2017
STATE OF ARIZONA, Appellee, v. FRANKY LEE WHITE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Law Office of Daniel DeRienzo, PLLC, Prescott Valley By Daniel J. DeRienzo 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CR201400237
The Honorable Steven F. Conn, Judge Retired
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Law Office of Daniel DeRienzo, PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Kent E. Cattani and Chief Judge Samuel A. Thumma joined. SWANN, Judge:
¶1 Franky Lee White appeals, under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from the revocation of his probation and his re-sentencing for theft, a class 3 felony; trafficking in stolen property, a class 2 felony; and fraudulent schemes, a class 2 felony. We affirmed his convictions and the imposition of 150 days of incarceration followed by seven years of probation in a separate Anders appeal. State v. White, 1 CA-CR 15-0391, 2016 WL 3884913 (Ariz. App. July 14, 2016). In this appeal, we have reviewed the proceedings that led to the revocation of his probation, see A.R.S. § 13-901(C), for fundamental error. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530 (App. 1999). White did not file a supplemental brief in propria persona. Our review of the record reveals no fundamental error. But because the court improperly calculated White's presentence incarceration credit, we correct the minute entry to reflect the proper number of days served.
¶2 White was released from his 150-day sentence on November 6, 2015. His probation required that he maintain a crime-free lifestyle. On November 9, he was at a self-storage business doing some landscaping. White entered the office around 10:30 a.m. and talked for a considerable length of time with C.A., the assistant manager. That day, they had multiple conversations, which included a discussion of sexual topics and C.A.'s romantic partners. They exchanged hugs and engaged in some kissing. C.A. gave White her address and phone number so that he could come and remove two cars from her property. They also took two trips around the property in a golf cart, ostensibly so that White could show her the work he had done. C.A. alleges that during the second trip in the golf cart, White grabbed her genitals through her pants.
¶3 On January 11, 2016, the state moved to revoke White's probation because of the alleged sexual abuse in violation of A.R.S. § 13-1404. At a contested hearing on the petition, C.A. and White offered conflicting accounts of the events of November 9. C.A. testified that White initiated the sexual conversations and insisted on hugging her, that she did not encourage the behavior, that her body language clearly showed her reluctance, and that White grabbed her genitals on the second golf cart ride. White testified that C.A. initiated the sexual conversations, that C.A. said he was handsome, and that C.A. was the one who wanted hugs and kisses. He denied grabbing her genitals. Though there was some security camera footage, it did not include any audio, did not show the hugs and kisses, and did not show the relevant events on the golf cart. The court found C.A. to be the more credible witness about the events on the golf cart, and found by a preponderance of the evidence that White had committed sexual abuse. See Ariz. R. Crim. P. 27.8. The court revoked his probation and sentenced him to 2.5 years of incarceration for theft, 4 years of incarceration for trafficking in stolen property, and 4 years of incarceration for fraudulent schemes and artifices — all minimum sentences for a first-time felony offender. See A.R.S. § 13-702(C); Ariz. R. Crim. P. 27.8(c)(2).
The court ruled that certain Facebook posts associated with C.A., which White sought to admit as evidence, were inadmissible under the Rape Shield Statute. See A.R.S. § 13-1421 (prohibiting admission of "[e]vidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity" in "any prosecution for any offense in this chapter [governing sexual offenses]"). We see no error, much less fundamental error. And even if exclusion were improper under the Rape Shield Statute, the court was well within its discretion to preclude evidence that was (at most) marginally relevant to assessing the credibility of C.A.'s testimony about the events on the golf cart. See Ariz. R. Evid. 401. --------
¶4 White was present and represented at all critical stages. He was given an opportunity to, and actually did, speak at the disposition hearing. The sentences imposed were lawful. See A.R.S. § 13-702(C). However, the court improperly calculated White's presentence incarceration credit as 287 days. He was incarcerated before sentencing from January 7, 2016, to June 2, 2016 — 147 days. And he served 150 days before he was released on probation. He was therefore entitled to 297 days of presentence incarceration credit. See A.R.S. § 13-712(B). A failure to award a defendant full credit for his presentence incarceration constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498 (App. 1989). Therefore, we modify the minute entry to reflect 297 days of presentence incarceration credit. We otherwise find no fundamental error.
¶5 We affirm the court's revocation of White's probation, and we affirm his sentences as modified. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform White of the status of this appeal and his future options. Id. White has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, White has 30 days from the date of this decision in which to file a motion for reconsideration.