STATE OF ARIZONA v. MICHAEL SCOTT DISTEL
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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. MICHAEL SCOTT DISTEL, Appellant. No. 2 CA-CR 2015-0282 Filed May 9, 2016 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County No. CR20131242001 The Honorable Casey F. McGinley, Judge Pro Tempore The Honorable Christopher Browning, Judge AFFIRMED IN PART; VACATED IN PART; REMANDED COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson By Anne Elsberry Counsel for Appellant STATE v. DISTEL Decision of the Court MEMORANDUM DECISION Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred. V Á S Q U E Z, Presiding Judge: ¶1 Appellant Michael Distel was convicted of trafficking in stolen property in the second degree and theft of property with a value of less than $1,000 after a first jury trial. After a second, separate trial, he was convicted of possession of a deadly weapon by a prohibited possessor. The trial court sentenced him to enhanced, minimum and presumptive, concurrent terms of imprisonment, the longest of which were ten years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating she has reviewed the record and has found no “arguable, meritorious issues” to raise on appeal. Counsel has asked us to search the record for fundamental error. ¶2 Viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury’s finding of guilt. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). The evidence presented at the two trials showed Distel and his girlfriend sold a stolen laptop computer to a buyer through Craigslist. Later, when a search warrant was executed, Distel, a convicted felon whose civil rights had not been restored, was found with a functioning handgun in his pocket. ¶3 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found such an error in regard to Distel’s sentence. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). As the state concedes in its supplemental briefing, ordered by this court, the trial court 2 STATE v. DISTEL Decision of the Court improperly sentenced Distel on his theft conviction. Distel was convicted of a theft of property valued at less than $1,000. That offense is a class one misdemeanor. A.R.S. § 13-1802(G). The trial court, however, indicated Distel had been convicted of a class three felony and imposed the sentence for a category-three repetitive offender for a class six felony. Because the court is required to “fix the term of imprisonment” for a class one misdemeanor within the maximum limitation of six months, A.R.S. § 13-707(A)(1), we remand this matter to the trial court for resentencing on Distel’s theft conviction consistent with this decision. We affirm Distel’s convictions and remaining sentences. 3
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