State v. Jeffrey

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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 DIVISION ONE FILED: 04/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. REGINALD MARK JEFFREY, Appellant. 1 CA-CR CR 11-0589 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-180353-001 The Honorable John R. Ditsworth, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 for Reginald Mark Jeffrey timely appeals from his sentence one count dangerous finding of no felony. arguable misconduct After involving searching question of law the weapons, record that was on not a class appeal 4 and frivolous, Jeffrey s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (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 Jeffrey to file a supplemental brief in propria persona, but Jeffrey did not do so. After reviewing those portions of the record regarding the superior court s sentencing of Jeffrey on this count, we find no fundamental error and, therefore, affirm Jeffrey s sentence. FACTS AND PROCEDURAL BACKGROUND ¶2 In 2008, the superior court found Jeffrey guilty of misconduct involving weapons ( count 5 ) committed on December 26, 2006, and sentenced him to ten years in prison, to run concurrently with his sentences on other counts (the original sentencing ). 1 On July 22, 2010, this court remanded Jeffrey s sentence on count 5 to the superior court for clarification on the intended sentencing Jeffrey s sentence. scheme and possible recalculation of Jeffrey, 1 CA-CR 08-0733, 2010 WL 2901026, 1 A jury found Jeffrey guilty of one count of first degree murder and two counts of aggravated assault. This court affirmed the convictions and sentences on those counts, and the conviction on count 5. State v. Jeffrey, 1 CA-CR 08-0733, 2010 WL 2901026 (Ariz. App. July 22, 2010) (mem. decision). Thus, our review is limited to the narrow issue of the resentencing on count 5. See State v. Schackart, 190 Ariz. 238, 255, 947 P.2d 315, 332 (1997) (finding claim not raised in first appeal waived); see also State v. Hartford, 145 Ariz. 403, 405, 701 P.2d 1211, 1213 (App. 1985). 2 at *3, ¶ 12. superior At a resentencing hearing on August 3, 2011, the court acknowledged its previous determination the offense was dangerous, but sentenced Jeffrey to the presumptive term for years. a non-dangerous, repetitive class 4 felony - ten See State v. Trujillo, 227 Ariz. 314, 321-22, ¶¶ 30-37, 257 P.3d 1194, 1201-02 (App. 2011) (citation omitted) ( [T]he law allows a trial court to select between the dangerous and repetitive sentencing options, but does not require that if the court chooses to sentence a defendant as a repeat offender, it must void the . . . finding of dangerousness. ); see also Ariz. Rev. Stat. ( A.R.S. ) § 13-604(C) (2006) (sentencing for class 4 felony with two or more historical prior felony convictions) (current version at A.R.S. § 13-703 (C), (J) (Supp. 2011)). DISCUSSION I. Sentencing Matters ¶3 First, the court did not ask Jeffrey if he would like to address the court at resentencing. See Ariz. R. Crim. P. 26.10(b)(1) (in pronouncing sentence, court shall give defendant an opportunity to speak on his or her own behalf ). original counsel sentencing, to make a however, the sentencing court allowed recommendation and At the Jeffrey s asked his counsel if there was [a]ny legal cause, to impose a sentence that permits parole eligibility, replied, I am aware of none. to which Jeffrey s counsel At resentencing, the court again 3 allowed Jeffrey s counsel to make a sentencing recommendation. Thus, the court effectively complied with Rule 26.10, allowing Jeffrey s counsel to speak for him, and we see no error. State v. Dixon, 127 Ariz. 554, 558, 622 P.2d 501, 507 (App. 1980) (citations omitted). ¶4 Second, the resentencing hearing minute entry reflects the court amended its original sentencing order to dismiss[] the dangerous allegation on Count 5. Then, on August 10, 2011, seven days after the resentencing hearing, the court entered a nunc pro tunc order to delete the dismissal language quoted in the preceding sentence, describe the offense as Dangerous, and clarify, dangerous but AS PUNISHMENT, repetitive IT IS ORDERED, sentencing scheme using for the a non- class 4 felony. ¶5 While the court may nunc pro tunc correct a clerical mistake in a prior judgment or minute entry, Ariz. R. Crim. P. 24.4, it may not, in a defendant s absence and without a waiver, by virtue of a nunc pro tunc minute entry place on the record an order or judgment that was never previously made or rendered. State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 1982). (App. Thus, if the court truly dismissed the allegation of dangerousness, it would be improper to reinstate the dismissed allegation in Jeffrey s absence via a nunc pro tunc order. 4 ¶6 Here, the record reflects the court merely corrected a clerical mistake. At Jeffrey s original sentencing the court found count 5 dangerous, but its minute entry from that date reflected it was Non Dangerous. At resentencing, the State asked the court to correct the error in the original sentencing minute entry as follows: [State]: [J]ust for clarification . . . it seems the Court is intending to sentence him as a nondangerous repetitive. However, I think the finding, at least from July 2d, [2008], was this is a dangerous offense. [Court]: And so . . . I m amending my original order, is that what I have to say? [State]: I think so. And then for sentencing purposes, the sentencing scheme is under the nondangerous scheme with priors. Consistent with this discussion and its August 10, 2011 nunc pro tunc order, the court noted, for the purposes of resentencing . . . this is a Class 4 nondangerous felony. The resentencing hearing transcript reflects no discussion of dismissing the dangerousness finding. Thus, the record demonstrates the court s nunc pro tunc order merely corrected a mistake in the resentencing minute entry. II. Anders Review ¶7 We have reviewed the portions of the record relevant to the superior court s sentencing of Jeffrey on count 5 for reversible error and find none. See Leon, 104 Ariz. at 300, 451 5 P.2d at 881. Jeffrey was represented by counsel at all stages of the proceedings pertinent to our review of the record and was present at all critical stages. the original sentencing The superior court considered presentence report and this court s memorandum decision, and imposed a sentence within the range of acceptable sentences for Jeffrey s offense. 2 CONCLUSION ¶8 We decline to order briefing and affirm Jeffrey s sentence. ¶9 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Jeffrey s representation in this Defense counsel need do no more than inform Jeffrey 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 Jeffrey has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for 2 Although we note the superior court gave Jeffrey credit for one extra day of presentence incarceration credit, see State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987) ( Where the date sentence is imposed serves, as here, as the first day of sentence . . . it does not also count for presentence credit. ), we will not correct sentencing errors that benefit a defendant, in the context of his own appeal, absent a proper appeal or cross-appeal by the [S]tate. State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848 (1990). 6 review. days On the court s own motion, we also grant Jeffrey 30 from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ LAWRENCE F. WINTHROP, Judge 7

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