STATE v. DESANTI

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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. MARK STEPHEN DESANTI, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0443 DIVISION ONE FILED: 07/31/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-136679-001 DT The Honorable John R. Hannah, Jr., Judge AFFIRMED Thomas C. Horne, 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 Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Mark Stephen Desanti has advised us that, after searching the entire record, she 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. Defendant was given the opportunity to file a supplemental brief but has not done so. FACTS 1 ¶2 Defendant and another man were seen parking a green Ford truck in front of Progressive Industries ( Progressive ). An eyewitness watched the two men as they used a yellow or orange apparatus to pull a large piece of metal through the fence and put it in the truck. ¶3 The accompanied police them located next to to arrived try find the truck. and the identified Defendant and his accomplice. the suspects separately. of their and building another to shortly, Miranda 2 rights, the The eyewitness truck eyewitness saw was and The police informed and interviewed them Defendant acknowledged that he had taken a metal rack from Progressive. ¶4 The jury convicted Defendant of burglary in the third degree, a class 4 felony. circumstance the The jury further found an aggravating presence of 1 an accomplice. The court We view the facts in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation omitted). 2 Miranda v. Arizona, 384 U.S. 436 (1966). 2 subsequently found that Defendant had two prior felony convictions, which constituted an additional aggravating factor. The court, however, found the nature of the crime a petty theft to be a mitigating circumstance. Defendant was then mistakenly sentenced as a category one repetitive offender, see Ariz. Rev. Stat. ( A.R.S. ) 13-703(A) 3 section 2012), 4 (West ordered to serve 1.5 years in prison, and given credit for 118 days of presentence incarceration. ¶5 The court actually had been offender, sentence. mitigated see subsequently convicted A.R.S. § as acknowledged a that category 13-703(B)(1), 5 and two Defendant repetitive vacated the prior At the resentencing, Defendant was sentenced to a term of 2.25 years in prison, with 139 days of presentence incarceration credit. We have jurisdiction over his appeal Section pursuant Constitution, to and Article A.R.S. 6, §§ 9, of 12-120.21(A)(1), the Arizona 13-4031, and -4033(A)(1) (West 2012). 3 A person shall be sentenced as a category one repetitive offender if the person is convicted of two felony offenses that were not committed on the same occasion . . . . A.R.S. § 13-703(A). 4 Section 13-703 was amended in March 2012. See 2012 Ariz. Sess. Laws, ch. 96, § 2 (2d Reg. Sess.). The enacted revisions, however, do not affect the statutory provisions applicable in this case. 5 A person shall be sentenced as a category two repetitive offender if the person . . . [i]s convicted of three or more felony offenses that were not committed on the same occasion . . . . A.R.S. § 13-703(B)(1). 3 DISCUSSION ¶6 Defendant has asked his counsel to raise two issues on appeal: (1) the sufficiency legality of the sentence. of the evidence, and (2) the We have examined the issues and find no reversible error. I. Sufficiency of the Evidence ¶7 Defendant argues that the verdict was not supported by the evidence. Evidence is sufficient if it would have enabled a rational trier of fact to find guilt beyond a reasonable doubt. State v. Rienhardt, 190 Ariz. 579, 588, 951 P.2d 454, 463 (1997) (citation omitted). Viewing the evidence in the light most favorable to sustaining the verdict, id. at 588-89, 951 P.2d at 463-64 (citation omitted), we will affirm unless there is no substantial evidence to support the jury s verdict. Scott, 187 Ariz. 474, 477, 930 P.2d 551, 554 State v. (App. 1996) third (citation omitted). ¶8 Defendant degree. The trial was convicted court of properly burglary in the instructed the jury that [t]he crime of burglary in the third degree requires proof that the defendant entered or remained unlawfully in or on a fenced commercial yard, and that he did so with the intent to commit [a] theft therein. At trial, the eyewitness testified that he witnessed the theft and identified Defendant as one of the men who had taken the metal rack 4 from Progressive s fenced-in property. In addition, the police officers identified Defendant as one of the suspects they detained shortly after the burglary, and testified that Defendant had admitted to taking the metal rack. Consequently, there was sufficient evidence to sustain the conviction. II. Legality of the Sentence ¶9 Defendant also argues that his sentence is illegal because the court did not make the necessary finding of two prior felony convictions as required in A.R.S. § 13-703(B)(1). We disagree. ¶10 Generally, sentencing is the responsibility of the trial judge and, absent an abuse of discretion, the sentence will not be altered. State v. Fillmore, 187 Ariz. 174, 184, 927 P.2d 1303, 1313 (App. 1996) (quoting State v. Mincey, 141 Ariz. 425, 445, 687 P.2d 1180, 1200 (1984)). We will therefore sustain a sentence unless it is based on an error of law, State v. Green, 200 Ariz. 496, 502, ¶ 28, 29 P.3d 271, 277 (2001) (citation omitted), is arbitrary or capricious, or [if] the court fail[ed] to conduct an adequate investigation into the facts relevant to sentencing. Fillmore, 187 Ariz. at 184, 927 P.2d at 1313 (citation omitted). ¶11 Here, after the court vacated the initial, erroneous sentence, Defendant was sentenced to a mitigated term of 2.25 years in prison. Although the court did not specifically list 5 Defendant s two prior felony offenses at the re-sentencing, the court affirmed the findings of prior felony offenses from the previous range. hearing See in determining A.R.S. § the appropriate 13-703(I). The court sentencing therefore incorporated by reference the findings necessary to support the imposed sentence. ¶12 As a result, we find no abuse of discretion. Defendant also argues that sentence was the final word. resentence a defendant after he believed the first A trial court, however, may vacating the initial sentence, State v. Thomas, 142 Ariz. 201, 204, 688 P.2d 1093, 1096 (App. 1984) (absent constitutional constraints, trial court may vacate previous, unlawful sentence and impose new, legal because [a]n illegal sentence is no sentence at all. sentence), State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App. 1982) (quoting State v. Ortiz, 104 Ariz. 493, 495, 455 P.2d 971, 973 (1969)). Consequently, inapplicable Ariz. 534, omitted). sentenced to 548, Here, ¶13 sentencing ¶ the Defendant sentencing range. double 27, proceedings. 65 court anew jeopardy P.3d 915, vacated in the accordance claims generally v. State 929 are 204 (2003) illegal with Ring, (citation sentence the and statutory We find no error. We have read and considered counsel s brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. 6 We find none. The record, as presented, reveals that all of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, that Defendant was proceedings, represented and that by the counsel sentence at all imposed stages of the within the conviction and was statutory limits. CONCLUSION ¶14 Accordingly, sentence. we affirm Defendant s After this decision is filed, counsel s obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and of Defendant s future options, unless counsel identifies an issue appropriate for submission review. 157 to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, (1984). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. /s/ __________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _____________________________ ANN A. SCOTT TIMMER, Judge /s/ _____________________________ ANDREW W. GOULD, Judge 7

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