State v. Hart

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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. THADDEUS RAMOIN HART, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05-18-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0506 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-175898-001 DT The Honorable Kristin C. Hoffman, Judge AFFIRMED 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 Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Thaddeus Ramoin Hart timely appeals conviction and sentence for aggravated assault. from his After searching the record on appeal and finding no arguable question of law that was not frivolous, Hart 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 Hart to file a supplemental brief in propria persona, but Hart chose not to do so. After reviewing the entire record, we find no fundamental error and therefore affirm Hart s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 As three women, Y., K., and L., left Hart s home around 4:00 a.m. on December 5, 2008, Hart fired a gun in Y. s direction. God. He s going to kill us. ¶3 Y., Y. fell to the ground, flailing, thinking, Oh, my A grand jury indicted Hart on aggravated assault as to and reckless dangerousness for endangerment all three as to counts K. and under L., Arizona alleging Revised Statutes ( A.R.S. ) section 13-604(P) (Supp. 2008) (this section is now A.R.S. § 13-704(L) (2010)). aggravated assault, found the crime A jury convicted Hart of to be dangerous, 2 and 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Hart. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 The sentencing transcript reflects the superior court found Hart guilty of aggravated assault, [a] Class 3 dangerous felony. The court went on, however, to describe the aggravated assault as non-dangerous. The sentencing minute entry described the offense as dangerous, and this minute entry is 2 acquitted him of the reckless endangerment counts. The superior court sentenced Hart to the presumptive term of 7.5 years, with 187 days presentence incarceration credit. DISCUSSION ¶4 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Hart was represented by counsel at all stages of the proceedings and was personally present at all critical stages. The jury was properly comprised of eight members. The court properly instructed the jury on the elements of the crime, the State s burden of proof, Hart s presumption of innocence, and the necessity of a unanimous verdict. The superior court reviewed and considered a presentence report, Hart was given an opportunity to speak at sentencing, and Hart s sentence within the range of acceptable sentences for his offense. A.R.S. § 13-604(I) (Supp. 2008) (this section is now was See A.R.S. § 13-704(A) (2010)). consistent with the jury s explicit finding the offense was dangerous as reflected in the court s May 4, 2009 minute entry and the May 4, 2009 trial transcript. The jury verdict form clearly states a finding of dangerousness, the verdict was read in open court, and each juror was polled and verified this was his or her verdict. Thus, the sentencing transcript s reference to non-dangerous is incorrect. See State v. Bowles, 173 Ariz. 214, 841 P.2d 209 (App. 1992). 3 CONCLUSION ¶5 For the foregoing reasons, we decline to order briefing and affirm Hart s conviction and sentence. ¶6 After the filing of this decision, defense counsel s obligations pertaining to Hart s representation in this appeal have ended. Defense counsel need do no more than inform Hart 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶7 Hart 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 Hart 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 4

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