State v. Urai

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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. CORY MICHAEL URAI, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0981 DIVISION ONE FILED: 09/30/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2008-0811 The Honorable Rick A. Williams, Judge AFFIRMED AS CORRECTED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman N O R R I S, Judge ¶1 Cory Michael Urai timely appeals from his convictions and sentence for violating Arizona Revised Statutes ( A.R.S. ) section 13-3405 (Supp. 2007), possession of marijuana for sale, and A.R.S. § 13-3415 (2001), possession of drug paraphernalia, a class 4 and class 6 felony, respectively. After searching the record on appeal and finding no arguable question of law that was not frivolous, Urai 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 Urai to file a supplemental brief in propria persona, but Urai chose not to do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Urai s convictions and sentence as corrected to reflect a two-day increase in his presentence incarceration credit. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On July 25, 2008, the State charged Urai with possessing marijuana for sale and possessing drug paraphernalia. At trial on these charges, the case officer testified he served a search warrant on Urai s residence. 2 When the officers entered the home pursuant to the search warrant, they encountered Urai and saw three bags of marijuana, a marijuana grinder, a scale, a 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Urai. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Before trial, the court denied Urai s motion to quash the search warrant and suppress evidence seized pursuant to the search warrant. Based on the evidence presented, the court did not abuse its discretion in doing so. State v. Nelson, 208 Ariz. 5, 6, ¶ 4, 90 P.3d 206, 207 (App. 2004). 2 water bong, and a pipe in plain view. Further, the officers seized two pay-owe sheets, or drug ledgers, one of which was written on the back of an OfficeMax fax transmission to a court from Urai. ¶3 At trial, the case officer testified Urai responded affirmatively to the compound question whether he had sold or smoked marijuana, although Urai later clarified two times he did not sell drugs. The case officer also testified that police informants, prior to the execution of the search warrant, found an individual other than Urai was using Urai s residence as a base of operations for selling marijuana. 3 ¶4 On information, November the jury 4, 2009, found Urai based on guilty this as and charged. other At sentencing, the parties stipulated Urai had been convicted of two or more prior drug-related misdemeanors, removing him from the mandatory probation provisions of A.R.S. § 13-901.01 (Supp. 2007). The court sentenced Urai to four years of probation and, as a condition of probation, ordered Urai to serve 90 days in 3 This individual was never arrested on this warrant although named in the warrant, and he became a confidential informant for the police department. At trial, defense counsel vigorously cross-examined the case officer on his use of that individual as an informant and the fact that the informant and the officer s niece have a child in common. 3 jail, with two days of presentence incarceration credit, 4 in addition to 360 hours of community service work. The court also imposed a mandatory fine of $1000 plus 84% surcharge -- for a total of $1840 -- plus $10 probation surcharge, $20 time payment fee, and $25 public defender fee. 5 DISCUSSION ¶5 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Urai received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶6 The evidence presented at trial was substantial and supports the verdicts. members, and the The jury was properly comprised of eight court properly instructed the jury on the elements of the charges, Urai s presumption of innocence, the State s burden verdict. The of proof, superior and the court necessity received of and a unanimous considered a presentence report, Urai was given an opportunity to speak at sentencing, and his sentence was within the range of acceptable sentences for his offenses. 4 The sentencing minute entry, however, indicates the court awarded Urai zero days of presentence incarceration credit. 5 The court also ordered Urai to pay $350 in attorneys fees and a monthly probation assessment fee of $65. 4 ¶7 In our review of the record, we discovered an error in the sentencing minute entry. court correctly awarded incarceration credit. 6 At the sentencing hearing, the Urai two days of presentence The sentencing minute entry, however, fails to reflect that award. We hereby correct the sentence imposed to reflect two days of presentence incarceration credit; Urai was awarded zero days in the minute entry. See A.R.S. § 13-712(B) (2010); State v. Mathieu, 165 Ariz. 20, 24-25, 795 P.2d 1303, 1307-08 (App. 1990). CONCLUSION ¶8 We decline to order briefing and affirm Urai s convictions and sentence as corrected. ¶9 After the filing of this decision, defense counsel s obligations pertaining to Urai s representation in this appeal have ended. Defense counsel need do no more than inform Urai 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). ¶10 Urai 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 Urai 30 days 6 The record reflects Urai was taken into custody on July 1, 2008. He was released on bond on July 2, 2008. 5 from the date of this decision to file an in propria persona motion for reconsideration. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 6

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