State v. Phalen

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KRISTINA KAYE PHALEN, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 12/01/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0081 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-007860-001 DT The Honorable Sally S. Duncan, Judge CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 Kristina Kaye Phalen appeals the trial court s order sentencing her for dangerous drugs, two both counts class of two sale or felonies transportation with two of prior convictions, section pursuant 13-3407 to (Supp. Arizona 2008). 1 Revised Phalen Statutes asks ( A.R.S. ) this court to exercise its inherent power to modify [the] sentencing minute entry to reflect that the trial court expressly intended to impose sentence under A.R.S. § 13-604 (Supp. 2008), not under A.R.S. § 13-712 (Supp. 2008) as stated in the minute entry. The State confesses such error, and we agree. ¶2 On October 8, 2008, the trial court sentenced Phalen with two prior felony convictions to 15.75 years imprisonment as to count one, and 15 years imprisonment as to count two, both sentences to be served concurrently. Although it appears the court intended to sentence Phalen as a repetitive offender pursuant to A.R.S. § 13-604 on both counts, the written minute entry reflects that Phalen was sentenced pursuant to A.R.S. § 13-712. ¶3 Rule 26.16(a), Arizona Rules of Criminal Procedure, provides that the judgment of conviction and the sentence thereon are complete and valid as of the time of their oral pronouncement in open court. When a discrepancy exists between the oral pronouncement of sentences and the sentencing minute entry that cannot be resolved by reference to the record, remand for clarification is the appropriate remedy. 1 State v. Bowles, We cite to the current version of the statute as no revisions material to this decision have occurred. 2 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992). case, however, reflects the remand court s is not necessary intention to because sentence In this the record Phalen repetitive offender pursuant to A.R.S. § 13-604(D). as a In State v. Contreras, 180 Ariz. 450, 453 n.2, 855 P.2d 138, 141 n.2 (App. 1994) (citation omitted), this court stated that [w]hen we are able to ascertain the trial court s intention by reference to the record, remand for clarification is unnecessary. ¶4 For the foregoing reasons, we affirm Phalen s convictions but modify the sentencing minute entry as to both counts by deleting the reference to A.R.S. § 13-712 and inserting the correct provision, A.R.S. § 13-604, in its place. 2 We further direct the clerk of the court to send a copy of this decision to the Arizona Department of Corrections. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Jon W. Thompson, Judge /s/ Sheldon H. Weisberg, Judge 2 Phalen concedes that the correct sentence on count two under A.R.S. § 13-604 is 15.75 years imprisonment, not 15 years as stated in the sentencing minute entry. We will not correct an erroneous sentence, however, if the error favors the defendant and the State has not filed a cross-appeal. State v. Dawson, 164 Ariz. 278, 281-83, 792 P.2d 741, 744-46 (1990). 3

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