State v. Lynch

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 DIVISION ONE FILED: 12/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. PHILLIP JOHN LYNCH, Appellant. No. 1 CA-CR 09-0797 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-005934-001 DT The Honorable Lisa Ann VandenBerg, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Lynch burglary in the appeals third from his degree, a conviction class four and sentence felony. for Lynch s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Lynch was afforded the opportunity to file a supplemental brief in propria persona but did not do so. See State v. Clark, 196 Ariz. 530, 537, & 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On August 16, 2008, Lynch went to a restaurant in Scottsdale. Lynch waiting for someone. informed the manager, Y.L., that he was Y.L. then seated Lynch at a booth in the front of the restaurant to wait. Thirty minutes later, still alone, Lynch went to the counter where the cash register is located and asked Y.L. s sister for a glass of water. When Y.L. s sister turned around to pour Lynch a glass of water, Y.L. observed Lynch looking at the cash register, so she yelled at him. Lynch then reached over the counter into register, grabbed some money, and ran out the door. the cash Lynch ran into the glass front door in his haste to leave, broke it, and fell down. Once he was outside, Lynch got onto his motorcycle, 2 but Y.L. and a customer surrounded him. drive away, he crashed and was injured. When Lynch tried to Lynch then attempted to run away, but since he was hurt, he instead collapsed in the bushes nearby. Shortly thereafter, paramedics and police arrived on the scene. ¶4 Y.L. identified Lynch to the police. A witness, E.G., also reported that he heard a crash of glass as he was parking his car outside the restaurant and saw Lynch running from the restaurant. E.G. also stated that he saw Lynch try to drive away motorcycle, on his but Lynch fell on the pavement and started bleeding. ¶5 Police bloody in recovered Lynch s seventy pockets. They dollars also crumpled noted that up and Lynch was bleeding from his head, and he stated that he thought his leg and back were broken. Lynch spoke with the police and admitted to stealing the money, detailing the previous events. ¶6 At trial Lynch did not deny taking money from the restaurant, but he contested whether his actions rose to the level of declared burglary. a mistrial On the because second Lynch s comments in front of the jury. from the courthouse and day of wife trial, made the court inappropriate The court banned Lynch s wife selected a new jury. This jury convicted Lynch as charged. ¶7 At the hearing regarding Lynch s prior convictions, 3 the State and defense counsel made an agreement. Lynch agreed to admit to two prior felony convictions in exchange for the State s promise to recommend a mitigated sentence of eight years. ¶8 At sentencing, the court sentenced Lynch to the recommended eight years in prison with 191 days of presentence incarceration credit. DISCUSSION ¶9 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Lynch was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶10 Additionally, we reject Lynch s argument that the trial court erred in sentencing by considering aggravators not proven to the jury, specifically [that] [ ] Lynch committed the offense for pecuniary gain and laid in wait to gain advantage over the victim. Lynch asserts that without the finding of these two aggravators, he would have been eligible to receive a super-mitigated sentence of six years instead of the mitigated 4 sentence of eight years that he did receive. ¶11 We do not find error by the trial court in sentencing, even though it is possible that Lynch s mitigated sentence might have been shorter if the trial court had not considered the above aggravating factors. court s determination of It is important to note that the these aggravating factors did not result in punishment in excess of the statutory maximum. ¶12 Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. State v. Johnson, 210 Ariz. 438, 440-441, ¶ 9, 111 P.3d 1038, 1040-41 (App. 2005) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In Blakely v. Washington, the Court explained that the relevant statutory maximum is not the maximum sentence a judge may impose after additional facts, but the maximum he may impose finding without any additional findings. 542 U.S. 296, 303-304 (2004) (emphasis in original). ¶13 According authorized by a to jury Arizona verdict law, alone, findings, is the presumptive term. the maximum without any punishment additional Ariz. Rev. Stat. ( A.R.S. ) §§ 13-701(C) (2010), 13-702(A) (2010) (outlining the presumptive prison terms as required punishment absent finding any aggravating or mitigating factors); Johnson, 210 Ariz. at 441, ¶ 5 10, 111 P.3d aggravating at 1041. factors Although not proved imposed a mitigated sentence. the to trial the court jury, it considered ultimately Since Lynch s punishment is below the statutory maximum allowed by the jury verdict alone, the trial court did not err by finding additional aggravating factors. Id. at 442, ¶ 13, 111 P.3d at 1042. ¶14 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Lynch of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Lynch has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶15 The conviction and sentence are affirmed. ___/s/_______________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/___________________________ DIANE M. JOHNSEN, Presiding Judge ___/s/___________________________ MICHAEL J. BROWN, Judge 6

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.