STATE v. MCDONOUGH

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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. MEGAN LOUISE MCDONOUGH, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 8/15/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0799 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2012-122238-001 SE The Honorable Brian D. Kaiser, Commissioner AFFIRMED AS CORRECTED Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Megan McDonough timely appeals from her conviction and the imposition of supervised probation for aggravated assault. Ariz. Rev. Stat. ( A.R.S. ) § 13-1204(8)(e) (Supp. 2012). After searching the record on appeal and finding no arguable question of law that was not frivolous, McDonough 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 McDonough to file a supplemental brief in propria persona, but McDonough did not do so. find no fundamental After reviewing the entire record, we error and, therefore, affirm McDonough s conviction and probation. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On April 27, 2012, McDonough went to a hospital in Maricopa County, Arizona, stated she was suicidal. and in the course of checking in, Following the hospital procedures, the nurse moved McDonough to a private room, took her belongings, and asked her to change into a hospital gown. upset and [s]tormed out of the hospital. McDonough became Although McDonough eventually returned to the hospital, she caused a commotion in the hallway, refused to change into the gown, and screamed at hospital staff. the When McDonough started pushing her way out of [examination] room, for her safety and the safety of others, nurses and a security guard attempted to restrain her to 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against McDonough. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 a bed. During the struggle, McDonough kicked a nurse in the chest and stomach. ¶3 Subsequently, aggravated assault. 2 the aggravated a grand jury indicted McDonough for Before trial, the State moved to designate assault count as a class one misdemeanor and conduct a bench trial, and, without objection by McDonough, the superior court McDonough granted guilty of the State s aggravated motion. assault, the After superior finding court suspended imposition of sentence and placed her on supervised probation for one year. DISCUSSION ¶4 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, McDonough was represented by counsel at all stages of the proceedings and was present at all critical stages. There was sufficient evidence for the superior court to find McDonough committed the offense, and the probation imposed was within the statutory limits. See A.R.S. § 13 1204(D) (Supp. 2012) (aggravated assault against licensed health care practitioner is class six felony); A.R.S. § 13 604 (2010) (class six felony may 2 The grand jury also indicted McDonough for assault against a security guard. The superior court acquitted McDonough on this count. 3 be designated as class one misdemeanor); A.R.S. § 13 707 (2010) (class one misdemeanor is punishable by six months of imprisonment); A.R.S. § 13 902(A)(5) (Supp. 2012) (for class one misdemeanor, probation may continue for three years). ¶5 Although the trial minute entry and the sentencing minute entry both stated McDonough waived the right to a trial by jury, McDonough did not waive her right to a jury trial. McDonough was not entitled to a jury trial because she was tried for a class one misdemeanor, which was punishable by no more than six months of incarceration. A.R.S. § 13 707 (2010); Derendal v. Griffith, 209 Ariz. 416, 418 19, ¶ 6, 422, ¶ 21, 104 P.3d 147, 149 50, 153 (2005) (criminal offense for which maximum statutory penalty is less than six months of incarceration is presumptively an offense for which right to jury trial does not attach). Nevertheless, we correct the trial minute entry and sentencing minute entry, respectively, to delete the following: the Defendant has previously waived her right to trial by jury[,] and WAIVER OF JURY TRIAL: The Defendant knowingly, intelligently and voluntarily waived the right to a trial by jury[.] CONCLUSION ¶6 We decline to order briefing and affirm McDonough s conviction and probation. 4 ¶7 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to McDonough s representation in this Defense counsel need do no more than inform McDonough of the outcome of this appeal and her 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). ¶8 McDonough has 30 days from the date of this decision to proceed, if she wishes, with an in propria persona petition for review. On the court s own motion, we also grant McDonough 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 5

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