State v. Gowins
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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. KENNETH PAUL GOWINS, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 02-09-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0164 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2004-014824-001 DT The Honorable Arthur T. Anderson, Judge SENTENCE AFFIRMED AS MODIFIED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Sharmila Roy Attorney for Appellant Laveen T I M M E R, Chief Judge ¶1 Kenneth Paul Gowins appeals the trial court s sentence imposed for transportation of marijuana for sale, misconduct involving paraphernalia, Gowins and argues weapons, possession the court possession of drug marijuana for sale. of erred in failing to grant him forty-one days of presentence-incarceration credit for each count, despite recognizing his entitlement to the credit at the sentencing hearing. The State concedes error and we agree. ¶2 In May 2004, Gowins was indicted by a grand jury and charged with Count 1, transportation of marijuana for sale, a class 3 felony; Count 3, misconduct involving weapons, a class 4 felony; Count 5, possession of dangerous drugs for sale, a class 2 felony; Count 6, possession of drug paraphernalia, a class 6 felony; Count 7, possession of marijuana for sale, a class 2 felony; Count 8, possession of dangerous drugs for sale, a class 2 felony; and Count felony. 9, misconduct involving weapons, a class 4 The case proceeded to trial in November 2007. The court dismissed Counts 5 and 8, and the jury found Gowins guilty of Counts 1, 3, 6, and 7, and not guilty of Count 9. ¶3 At forty-one Count 7. the days The sentencing, of the court awarded presentence-incarceration court subsequently stated 2 credit that counts will run concurrent with each other. Gowins the for four And [the court has] applied the credits of 41 days. The sentencing minute however, entry granted and order of confinement, presentence-incarceration credit for only Count 7. Upon finding a discrepancy between an oral pronouncement at a sentencing confinement, hearing we must and a minute determine the through a review of the record. Ariz. 494, 496, 844 P.2d 661, entry trial or order court s of intent State v. Stevens, 173 663 (App. 1992). The sentencing hearing transcript shows the court intended to award presentence-incarceration credit for each count. ¶4 The incarceration corrected. failure credit is to award full fundamental error that must be State v. Cofield, 210 Ariz. 84, 86, ¶ 10, 107 P.3d 930, 932 (App. 2005). trial presentence- court must award For concurrent sentences, the a defendant with incarceration credit in each separate count. presentenceSee State v. Caldera, 141 Ariz. 634, 638, 688 P.2d 642, 646 (1984). ¶5 This court has the authority to modify a sentence to reflect the correct amount of presentence-incarceration credit. See Ariz. Rev. Stat. § 13-4037 (2001); see also Stevens, 173 Ariz. at 496, 844 P.2d at 663. modify the sentence to presentence-incarceration grant credit 3 Gowins for We therefore forty-one each of days the of four counts and correct the minute entry and order of confinement to reflect this modification. /s/ _________________________________ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ __________________________ Michael J. Brown, Judge /s/ __________________________ Margaret H. Downie, Judge 4
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