STATE v. RANDOLPH

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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.Sup.Ct. 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. RICHARD BRENT RANDOLPH, JR., Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 09/13/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 12-0040 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Navajo County Cause No. S0900CR201000846 The Honorable Thomas L. Wing, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Samuel J. Roser Attorney for Appellant Phoenix Snowflake H O W E, Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Richard Randolph asks this Court to search the record for fundamental error. Randolph was given an opportunity to file a supplemental brief in propria persona, but he has not done so. After reviewing the record, we affirm Randolph s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the light most favorable to sustaining the trial court s judgment and resolve all reasonable inferences against Randolph. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). victim, a prison inmate, reported that In March 2010, the Randolph and another prison inmate repeatedly assaulted and sexually abused him. The State charged Randolph with attempted sexual assault, a class 3 felony; sexual abuse, a class 5 felony; four counts of kidnapping, class 2 felonies; and stalking, a class 5 felony. ¶3 The evidence at trial showed that Randolph and the other inmate kicked and punched the victim, inserted a bottle into his anus, and touched the victim s genitals. In addition, Randolph put a chemical hair remover onto the victim s scalp. ¶4 At the close of the evidence, the trial court properly instructed the jury on the elements of the offenses, except for an acquittal on one count of kidnapping. Randolph was convicted as charged on all other counts. The trial court conducted the sentencing hearing in compliance with Randolph s constitutional 2 rights and Rule 26 of the Arizona Rules of Criminal Procedure. The trial sixteen court years convictions, conviction, sentenced imprisonment five six and years Randolph on each one-half on the to concurrent of the years sexual three for abuse terms kidnapping the stalking conviction, fifteen years on the attempted sexual assault conviction. trial court gave him credit for 364 days of of and The presentence incarceration. 1 DISCUSSION ¶5 We review fundamental error. Randolph s convictions and sentences for See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). Counsel for Randolph has advised this Court that after a diligent search of the entire record, he has found no arguable question of law. We have read and considered counsel s brief and fully reviewed the record for reversible error. none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find The proceedings were all conducted in compliance with the 1 Randolph should not have received any presentence incarceration credit because he was already serving a sentence on another offense. See State v. Verdugo, 180 Ariz. 180, 186, 883 P.2d 417, 423 (App. 1993) (holding that a defendant already in custody and serving a sentence on another offense is not entitled to presentence incarceration credit for the time he is awaiting trial on the new offense). We cannot correct the error, however, because it favors Randolph and the State did not file a cross appeal. See State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). 3 Arizona Rules reveals, of counsel Criminal Procedure. represented So Randolph at far as the all stages record of the proceedings and the sentences imposed were within the statutory limits. We decline to order briefing and affirm Randolph s convictions and sentences. ¶6 Upon the filing of this decision, defense counsel shall inform Randolph of the status of his appeal and of his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Randolph shall have thirty days from the date of this decision to proceed, if reconsideration he or desires, petition with for a pro review. On per motion for the Court s own motion, we extend the time for Randolph to file a pro per motion for reconsideration to thirty days decision. 4 from the date of this CONCLUSION ¶7 We affirm Randolph s convictions and sentences. ___________/s/________________________ RANDALL M. HOWE, Judge CONCURRING: _________/s/_________________________ MICHAEL J. BROWN, Presiding Judge ________/s/__________________________ MARGARET H. DOWNIE, Judge 5

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