State v. Rulapaugh

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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. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KENNETH DANIEL RULAPAUGH, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-0893 DIVISION ONE FILED: 02-23-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-126552-001 DT The Honorable Rosa Mroz, Judge AFFIRMED AS CORRECTED Terry Goddard, 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 Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix Kenneth Daniel Rulapaugh, Appellant Florence N O R R I S, Judge ¶1 Kenneth Daniel Rulapaugh appeals from his convictions and sentences for two counts of sexual assault and one count each of kidnapping, sexual abuse, and aggravated assault. After searching the record on appeal and finding no arguable question of law that was not frivolous, Rulapaugh s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (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 Rulapaugh to file a supplemental brief in propria persona, and Rulapaugh chose to do so. We reject the argument raised in Rulapaugh s supplemental brief and, after fundamental error. and sentences. reviewing the entire record, find no Therefore, we affirm Rulapaugh s convictions We correct, however, the superior court s sentencing minute entry to reflect all of Rulapaugh s offenses are nonrepetitive. FACTS AND PROCEDURAL BACKGROUND1 ¶2 Around 7:30 a.m. on May 13, 2006, police responded to a 9-1-1 call in Phoenix, Arizona. As two officers approached the subject home, they heard a woman s pleas for help. The officers entered the home and found Rulapaugh naked on top of the victim, D. away from escorted him. D. out D. spotted the officers and begged, [g]et me The of two the officers house 1 restrained where she Rulapaugh stated to and another We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Rulapaugh. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 officer, [Rulapaugh] tried to kill me. raped me. He has a knife. ¶3 I almost died. He Thank God you are here. Police gave Rulapaugh his Miranda warnings, and while being driven to the police station, Rulapaugh, on his own volition, said he wished he could go back and . . . rape that bitch again. He wanted to kill the whore. . . . over and over again. She teased me What else was I going to do and that bitch got what she deserved. ¶4 After a four-day trial, a jury found Rulapaugh guilty of both counts of sexual assault and each count of kidnapping, sexual abuse, offenses to ( A.R.S. ) and be aggravated dangerous section assault, under 13-604(I), (F), and Arizona (P) found all Revised (Supp. these Statutes 2005) (A.R.S. § 13-604(I), (F) is now A.R.S. § 13-704(A) (Supp. 2009); A.R.S. § 13-604(P) is now A.R.S. § 13-604(L) (Supp. 2009)). The superior court sentenced Rulapaugh to 10.5 years for the first count of sexual assault with 860 days of presentence incarceration credit; 10.5 years for the second count of sexual assault, to run consecutively to the first count of sexual assault; and 10.5 years for kidnapping, three years for sexual abuse, and 7.5 years for aggravated assault, all to run concurrently with each other, but consecutively to the second count of sexual assault. 3 ¶5 of We have jurisdiction pursuant to Article 6, Section 9, the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and -4033(A)(1) (Supp. 2009). DISCUSSION ¶6 In conviction his supplemental should be vacated brief, and Rulapaugh dismissed argues pursuant his to his speedy trial rights under Arizona Rule of Criminal Procedure 8.2 and the Arizona and United States Constitutions. We disagree. ¶7 We defendant s will motion affirm to the dismiss superior for court s violation of ruling on a speedy trial rights unless the defendant demonstrates the court abused its discretion and prejudice resulted. State v. Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, 1267 (1997). We need not determine whether the superior court abused its discretion because the delay did not prejudice Rulapaugh. ¶8 Here, last day. the superior court miscalculated Rulapaugh s After the court discovered the miscalculation and determined the correct last day, Rulapaugh s trial started two days after counsel s the corrected request. More date, and this importantly, delay was Rulapaugh at makes his no showing, and the record does not support, the two-day delay prejudiced him in any way. 4 ¶9 In addition to reviewing those portions of the record necessary to address Rulapaugh s concern, we have reviewed the entire record for reversible error and find none. Ariz. at 300, 451 P.2d at 881. See Leon, 104 Rulapaugh received a fair trial. He was represented by counsel at all stages of the proceedings and was personally present at all critical stages. properly comprised of 12 members. The jury was The court properly instructed the jury on the elements of the crime, the State s burden of proof, and the necessity of a unanimous verdict. Rulapaugh was given an opportunity to speak at sentencing, and did so. ¶10 Nevertheless, the court s sentencing minute entry requires correction because it lists counts two through five as repetitive, when at sentencing the court stated all Rulapaugh s offenses correct were the dangerous sentencing but nonrepetitive. minute entry Rulapaugh s offenses are nonrepetitive. to Accordingly, read that all we of See State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d 138, 141 n.2 (App. 1994). CONCLUSION ¶11 For the foregoing reasons, we decline to order briefing and affirm Rulapaugh s convictions and sentences. ¶12 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Rulapaugh s representation in this Defense counsel need do no more than inform Rulapaugh of the outcome of this appeal and his future options, 5 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). ¶13 Rulapaugh 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 Rulapaugh 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ DANIEL A. BARKER, Judge /s/ ___________________________________ PETER B. SWANN, Judge 6

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