State v. Earnest

Annotate this Case

Download PDF

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. GREGORY LEWIS EARNEST, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05/20/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CR 09-0594 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-160051-001 DT The Honorable Michael W. Kemp, 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 Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) (1969). and State v. Leon, 104 Ariz. 297, 451 P.2d 878 Counsel for Defendant Gregory Lewis Earnest has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. conclusion of his brief, however, counsel issues that Defendant asked him to raise. 1 lists At the twenty-three Defendant was given an opportunity to file a supplemental brief, but did not file one. FACTS 2 ¶2 M.R. 3 was sitting outside of a Phoenix public library on September 24, 2008, at approximately 7:40 p.m., when a man, 1 The listed issues include: 1. Sentence was illegal and excessive; 2. Violation of civil rights due process; 3. Suppression of evidence; 4. Fabricated evidence; 5. Perjury and conspiracy; 6. Modification of sentence; 7. False arrest; 8. False imprisonment; 9. Wrongful conviction; 10. Malicious prosecution; 11. Defamation of character; 12. Priors were invalid; 13. Burden of proof; 14. Conflict of interest; 15. Double jeopardy priors invalid; 16. Fabricated police reports perjury; 17. Inconsistency during trial; 18. Conspiracy; 19. Corruption in the judicial system; 20. Misidentification; 21. Self-defense; 22. Insufficiency of the evidence; and 23. Ineffective assistance of counsel. 2 We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 3 We use the first initials of the victim throughout this decision to protect his privacy. See State v. Maldonado, 206 Ariz. 339, 341 n.1, ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 later identified as Defendant, approached him carrying a bottle of beer and a sharpened stick. Defendant charged M.R. and struck him with the stick, causing injury to his left forearm and chest. ¶3 Defendant was charged with assault, a class three felony. one count of aggravated Following trial, a jury found Defendant guilty, and found the crime was a dangerous offense. The State subsequently proved that Defendant had two historical felony convictions, one of which was also a dangerous offense. Defendant was presumptive sentenced prison term as of a dangerous 11.25 years, offender with 329 to the days of presentence incarceration credit. DISCUSSION ¶4 We have read and considered counsel s brief, including the list of issues raised by Defendant, 4 and have searched the entire record for reversible error. 451 P.2d at 881. See Leon, 104 Ariz. at 300, We find no reversible error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was The record, as presented, reveals that represented by counsel 4 at all stages of the Defendant s ineffective assistance of counsel claim is not properly before us. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) (stating that a defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding not before trial, at trial, or on direct review ). 3 proceedings, and the sentence imposed was within the statutory limits. 5 CONCLUSION ¶5 After obligation to this decision represent has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. counsel s to the See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant can, if he desires, file a motion for reconsideration or a petition for review pursuant to the Arizona Rules of Criminal Procedure. 5 We note that the trial court incorrectly calculated the amount of presentence incarceration credit. However, the error was to Defendant s benefit. Because the State did not appeal the credit calculation, we cannot address the discrepancy. See State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990) (holding that a sentencing error that favors a defendant cannot be corrected absent a timely appeal by the State); State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848 (1990). 4 ¶6 Accordingly, we affirm Defendant s conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.