State v. Roberts

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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, ) ) ) ) ) ) ) ) ) ) Appellant, v. ESTELLE G. ROBERTS, Appellee. DIVISION ONE FILED: 07-22-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0352 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-105470-001 DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Richard M. Romley, Acting Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney Appeals and Westside Juvenile Division Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellee Phoenix N O R R I S, Judge ¶1 The State timely appeals the superior court s imposition of sentence on Estelle G. Roberts, arguing the court imposed a sentence contrary to the plea agreement, and thus should have granted its request to withdraw from the agreement. 1 Because Roberts s sentence was consistent with the language of the plea agreement, we disagree and affirm her sentence. FACTS AND PROCEDURAL BACKGROUND ¶2 A grand jury indicted Roberts on two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs ( DUI ), both class four felonies. guilty to Pursuant one count of to a plea aggravated agreement, DUI. The Roberts superior pled court suspend[ed] imposition of sentence and plac[ed] [Roberts] on three years of supervised probation, and further ordered [Roberts] shall serve four months in prison for felony DUI. DISCUSSION ¶3 On probation. its face, the plea agreement contemplated Term number one specifically states [p]robation is available, and further notes, consistent with the applicable statute, [i]f granted probation, Defendant must serve a minimum of four (4) months in the Department of Corrections. See Ariz. Rev. Stat. ( A.R.S. ) § 28-1383(D) (Supp. 2009) 2 ( [a] person is 1 We review the superior court s denial of a motion to withdraw from a plea agreement for abuse of discretion. See State v. Diaz, 173 Ariz. 270, 272, 842 P.2d 617, 619 (1992). 2 Although certain statutes cited in this decision were amended after the date of Roberts s offenses, the revisions are immaterial. Thus, we cite to the current versions of these statutes. 2 not eligible for probation . . . until the person has served not less than four months in prison ). The State argues the parties stipulation in term number two that Roberts shall be sentenced to the Department of Corrections for a term to be determined by the Court meant a prison-only term for a class four felony, which carries a minimum term of one year. 3 We disagree with the State and agree with Roberts the language in term number two calling for a term [of imprisonment] to be determined by the Court is unambiguous and the superior court complied with this term when it sentenced her to the Department of Corrections for four months, followed by probation. 4 ¶4 Moreover, the State s assertion the superior court effectively rejected the plea agreement flies in the face of the court s explanation of the possible sentencing available should Roberts choose to accept the plea. options At the change-of-plea hearing, the court stated, inter alia, pursuant 3 See A.R.S. §§ 13-701(C)(3) (2001) (presumptive prison term for class four felony is 2.5 years); -702(A) (Supp. 2007) (class four felony prison term may be reduced to 1.5 years or increased to three years, depending on mitigating/aggravating circumstances); -702.01(A), (B) (Supp. 2007) (class four felony prison term may be further reduced to one year or increased to 3.75 years if trier of fact finds at least two mitigating/aggravating circumstances). Sections 13-701(C)(3), -702(A), and -702.01(A) are renumbered and combined into A.R.S. § 13-702(D) (2010). 4 Because the language in the plea agreement is unambiguous, we need not address Roberts s alternative argument that if it were ambiguous, we should construe the ambiguities in her favor. 3 to the plea agreement, [p]robation is available, and if granted probation [Roberts] would have to serve a minimum of four months in prison, to which the State raised no objections. Thus, we reject the State s contention the superior court imposed a sentence contrary to the plea agreement. CONCLUSION ¶5 For the foregoing reasons, we affirm Roberts s sentence. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ____________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ____________________________________ DONN KESSLER, Judge 4

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