State v. Vance

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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.Sup.Ct. 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. CHARLES EDWARD VANCE, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-24-010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0421 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-168925-001 DT The Honorable John R. Hannah, Judge AFFIRMED AS MODIFIED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix I R V I N E, Presiding Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Charles Edward Vance ( Vance ), asks this court to search the record for fundamental error. Vance was given an opportunity to file a supplemental brief in propria persona. Vance has not done so. After reviewing the record, we affirm Vance s convictions and sentences for sexual conduct with a minor. FACTS AND PROCEDURAL HISTORY ¶2 On November 12, 2008, the grand jury issued an indictment, charging Vance with six counts of sexual conduct with a minor, class two felonies. At the close of the evidence, the trial court properly instructed the jury on the elements of the offenses. The jury convicted Vance of five counts of sexual conduct with a minor twelve years of age or younger, each a class two felony and dangerous crime against children. ¶3 The trial court conducted the sentencing hearing in compliance with Vance s constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. The trial court sentenced Vance to consecutive flat-time terms of life without the possibility of parole for thirty-five years for each of the five 2 counts. Additionally, the court credited Vance with 192 days of presentence incarceration. 1 DISCUSSION ¶4 We Section Statutes 9, exercise of the section jurisdiction Arizona pursuant Constitution 12-120.21(A)(1) to Article 6, and (2003). Arizona Revised We review Vance s convictions and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). ¶5 We note that the record provides no evidence that a voluntariness made no hearing objection was on held. the Nevertheless, basis of defense voluntariness counsel to the introduction of any of Vance s prior statements. In fact, no claim or suggestion was presented, either by the evidence or by counsel, that Vance s prior statements were involuntary - Vance testified that he voluntarily went by myself and went and spoke to [police]. voluntariness Consequently, hearing was we required. find that See State no v. separate Peats, 106 Ariz. 254, 257, 475 P.2d 238, 241 (1970). 1 The record indicates that the trial court s minute entry indicates Vance received 109 days of presentence incarceration credit; however, the transcript of the sentencing hearing reflects that the court properly credited Vance with 192 days of presentence incarceration. Because presentence incarceration credit calculation errors can be corrected without a remand to trial court, see State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992); Ariz.R.Crim.P. 31.17(b), we modify the sentencing minute entry to reflect 192 days of presentence incarceration credit. 3 ¶6 Counsel for Vance has advised this court that after a diligent search of the entire record, he has found no arguable question of law. The court has read and considered counsel s brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Vance was represented by counsel at all stages of the proceedings and the sentences imposed were within the statutory limits. We decline to order briefing and we affirm Vance s convictions and sentences. ¶7 Upon the filing of this decision, defense counsel shall inform Vance of the status of his appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Vance shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. On the court s own motion, we extend the time for Vance to file a pro per motion reconsideration to thirty days from the date of this decision. 4 for CONCLUSION ¶8 We affirm Vance s convictions and sentences as modified to reflect 192 days of presentence incarceration credit on Count 1. /s/ __________________________________ PATRICK IRVINE, Presiding Judge CONCURRING: /s/ _____________________________________ MICHAEL J. BROWN, Judge /s/ _____________________________________ DONN KESSLER, Judge 5

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