STATE v. LONEY
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DIVISION ONE FILED: 2/7/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) BEN WESLEY LONEY, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0860 DEPARTMENT C SUPPLEMENTAL OPINION Appeal from the Superior Court in La Paz County Cause No. S1500CR201100145 The Honorable Michael J. Burke, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee David Goldberg, Attorney at Law By David Goldberg Attorney for Appellant Phoenix Fort Collins, CO B R O W N, Judge ¶1 This court previously issued an opinion affirming Ben Wesley Loney s convictions for two counts of sexual conduct with a minor (Counts Two and Three of the indictment). State v. Loney, 230 Ariz. 542, ___, ¶ 1, 287 P.3d 836, 837 (App. 2012). We also affirmed Loney s sentence on Count Three, but determined his sentence on Count interpretation of Arizona (2012). Two was Revised based on Statutes an erroneous section Id. at ___, ¶ 22, 287 P.3d at 841. 13-703(A) We concluded the error constituted fundamental, prejudicial error and therefore remanded for resentencing. ¶2 The State Id. moved for reconsideration, arguing we misapplied the prejudice prong of fundamental error and failed to hold Loney to his burden of establishing prejudice. In response, Loney asserted his release from prison was imminent and therefore our effectively mooted. resentenced flat-time probation, these from remanding for resentencing was Loney also indicated he had no desire to be sentences Recognizing released to order having originally already imposed by concerns, and because custody of the the served the Loney Arizona both trial was of the court. actually Department of Corrections on January 10, 2013, the State s argument regarding prejudice is moot. See State v. Peters, 110 Ariz. 316, 317, 518 P.2d 566, 567 (1974) (noting that issue relating to legality of jail sentence was mooted by the passage of time). ¶3 Accordingly, we deny the State s motion for reconsideration, but we modify our opinion by vacating the last textual sentence of paragraph 22 (and the accompanying citation) and the order remanding for resentencing. 2 See Loney, 230 Ariz. at ___, ¶¶ 22-23, 287 P.3d at 841. The remainder of the opinion stands, as it provides clarification of the law. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge /s/ ___________________________________ JOHN C. GEMMILL, Judge 3
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