State v. Madison

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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. ) ) MANDELL ADRIAN MADISON, ) ) Appellant. ) ) DIVISION ONE FILED: 03/15/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0345 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006790-001 DT The Honorable Julie P. Newell, Judge Pro Tem AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce Peterson, Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 conviction Mandell and Adrian sentence Madison for ( Appellant ) resisting arrest, appeals a class his six felony, in violation of Arizona section 13-2508 (West 2012). 1 Revised Statutes ( A.R.S. ) Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, 120.21(A)(1), 13-4031, and 13-4033(A). error, modified we affirm to Appellant s reflect credit and six §§ 12- Finding no reversible conviction for A.R.S. and sentence, additional days as of presentence incarceration. 1 We cite the current Westlaw version of the applicable statutes throughout this decision because no revisions material to our decision have since occurred. 2 FACTS AND PROCEDURAL HISTORY 2 I. ¶3 On April 21, 2010, a grand jury issued an indictment, charging Appellant with two counts: arrest. The State later pandering and resisting alleged that historical prior felony convictions. Appellant had four The pandering count was dismissed on the State s motion before trial. ¶4 Appellant did conducted in absentia. not appear for trial, and trial was At trial, the parties stipulated that, on April 13, 2010, officers from the Phoenix Police Department . . . were attempting to make a lawful arrest of [Appellant]. ¶5 the The State also presented the following evidence: early observed several afternoon Appellant other of April enter an officers, all 13, 2010, apartment. wearing a police The marked detective detective police In and uniforms, approached the apartment, and the detective knocked on the door. Appellant opened the slammed the door shut. door, saw the uniformed officers, and The detective shouted through the door that Appellant was under arrest, but Appellant ran to the back of the apartment and jumped out of a second story window. ¶6 his back. Appellant landed on the ground and rolled forward to Two uniformed officers, who had been standing near 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 3 the rear of the apartment building, ran toward Appellant while shouting that he was under arrest. toward the officers, and tackled him to the ground. attempted Appellant stood up, ran to evade them, but they The officers advised Appellant that he was under arrest and ordered him to put his hands behind his back. up. Appellant refused to comply and attempted to push himself The two officers tried to pull Appellant s hands behind his back, but Appellant continued to struggle, so one of the officers struck Appellant in the calf and back with a baton. The strikes struggle proved with the ineffective, officers. and A Appellant third officer continued to arrived and assisted before Appellant could finally be handcuffed. Even after he was handcuffed, Appellant continued to flail and kick at the officers. ¶7 charged. The jury found Appellant guilty of resisting arrest as Based on Appellant s admissions at sentencing, the trial court found that Appellant had two historical prior felony convictions. mitigated term The of court 3.5 sentenced years Appellant incarceration to in a slightly the Arizona Department of Corrections and credited him for seventy days of presentence incarceration. 3 Appellant filed a timely notice of appeal. 3 The record reflects that Appellant was booked into custody on April 13, 2010, and was released on April 18, 2010, after 4 II. ¶8 We have reviewed error and find none. ANALYSIS the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdict, and the sentence was within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. were conducted in compliance with his The proceedings constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶9 After obligations appeal have filing pertaining ended. of to this decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to bond was posted for his release. On March 3, 2011, he was again booked into custody, where he remained until he was sentenced on May 12, 2011. Thus, Appellant was incarcerated for seventy-six days before sentencing, and he should be credited for six additional days of presentence incarceration. When we find a miscalculation in credit, we may correct the error by modifying the sentence without remanding to the trial court. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). Accordingly, we modify Appellant s sentence to reflect six additional days of presentence incarceration credit. 5 proceed, if he desires, with a pro per motion for reconsideration or petition for review. III. CONCLUSION ¶10 Appellant s conviction and sentence are affirmed, as modified to reflect credit for six additional days of presentence incarceration. ______________/s/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ________________/s/_________________ PATRICIA K. NORRIS, Presiding Judge _______________/s/__________________ MARGARET H. DOWNIE, Judge 6

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