State v. Moore

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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. ) ) TAMIKO JERMAINE MOORE, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 08/31/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0021 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-112001-001 DT The Honorable Kristin Hoffman, Judge The Honorable F. Pendleton Gaines, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Pamela J. Eaton, Attorney at Law By Pamela J. Eaton Attorney for Appellant Phoenix B R O W N, Judge ¶1 Tamiko Jermaine Moore ( Moore ) appeals his conviction and sentence for resisting arrest. brief in accordance with Anders Counsel for Moore filed a v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that after searching the record on appeal, unable to find any arguable grounds for reversal. she was Moore was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We view the facts in the light most sustaining the conviction reasonable inferences against Moore. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 arrest, Statutes In a August, Class 2005, Moore was 6 felony, in ( A.R.S. ) section 13-2508 indicted violation of (2010). 1 for resisting Arizona The Revised following evidence was presented at trial. ¶4 Moore was in the emergency room of Phoenix Baptist Hospital waiting to be treated for a laceration on his forehead. One of the emergency room nurses notified the Phoenix Police 1 Moore was also indicted on two other charges that were dismissed prior to trial and are not the subject of this appeal. 2 Department that Moore matched the description of a person described in a bulletin at the hospital. ¶5 Two police approached Moore. officers arrived at the hospital and Officer M.K. testified that after informing Moore he was under arrest, he left the bedside to make a phone call, leaving Sergeant P.K. to wait with Moore. Sergeant P.K. testified he told Moore he was under arrest, but due to Moore s injuries he would not be immediately placed in handcuffs if he would cooperate. Shortly thereafter, Moore jumped out of the hospital bed and fled. ¶6 Both officers pursued Moore, who was restricted to the emergency area of the hospital. nurses station, where a They confined Moore behind a struggle ensued. Moore ignored commands to stop resisting arrest, flailed his arms and legs, and pushed Officer M.K. numerous times in an attempt to get away and avoid having handcuffs placed on him. During the struggle, and as a result of Moore pushing Sergeant P.K. s hands away, Sergeant P.K. fell backward and hit his head but did not sustain any injuries. The officers eventually placed Moore in handcuffs. ¶7 A jury found Moore guilty of resisting arrest. At a separate hearing before the sentencing judge, Moore admitted to having two prior felony offenses. He was sentenced to the presumptive term of three and three-quarters years in prison, 3 and was given 287 2 days of presentence incarceration credit. Moore timely appealed. 3 ¶8 We have read and considered counsel s brief and have reviewed the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. and represented by The record shows that Moore was present counsel at all pertinent stages of the proceedings, he was afforded the opportunity to speak before sentencing, limits. ¶9 inform and the sentence imposed was within statutory Accordingly, we affirm Moore s conviction and sentence. Upon Moore of the filing of this the status of the decision, appeal and counsel his shall options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona 2 On this record, it appears that the trial court erred in calculating Moore s presentence incarceration credit. At most, Moore should have received credit for 270 days, rather than 287 days. The State did not challenge the calculation by filing a cross-appeal and thus we cannot correct it. See State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (recognizing that absent a timely cross-appeal, appellate courts cannot correct an illegally lenient sentence that favors an appellant). 3 Moore s notice of appeal indicates he is appealing from a judgment and sentence imposed on January 5, 2009; however, the record shows that sentencing occurred on December 19, 2008. Nonetheless, Moore filed his notice of appeal within the twentyday time limit provided under Arizona Rule of Criminal Procedure 31.3. 4 Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Moore has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ______________________________ JON W. THOMPSON, Judge /s/ ______________________________ SHELDON H. WEISBERG, Judge 5

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