State v. Wilkerson

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. BRYANT MATTHEW WILKERSON, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0429 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-128986-001 SE The Honorable Teresa Sanders, Judge CONVICTION AFFIRMED; SENTENCE AFFIRMED AS MODIFIED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Thomas Baird, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 Bryant Matthew Wilkerson appeals the trial court s order sentencing him for leaving the scene of a fatal injury accident. Wilkerson asks this court to exercise its authority to correct the sentencing order to reflect that the trial court expressly intended to designate the conviction as a class four felony, as sentence. ¶2 stated orally at the time of pronouncement of The State confesses such error, and we agree. Wilkerson was charged with multiple offenses resulting from a fatal automobile accident on May 5, 2007, one of which was count three, leaving the scene of a fatal injury accident, a class ensued. three felony. A twelve-day jury trial subsequently After the close of evidence, the trial court instructed the jury as to all charges. With respect to count three, the trial court instructed the jury that leaving the scene of a fatal accident required proof that: A. The defendant was the driver of a vehicle involved in an accident resulting in the death of another person. B. The defendant failed to immediately stop at the scene of the accident, or as close to the accident scene as possible, and return to the accident scene. C. The defendant knew injury to another, or which would lead anticipation that injury ¶3 After deliberation, the the accident caused possessed knowledge to a reasonable had occurred. jury acquitted Wilkerson on all counts except count three, leaving the scene of a fatal 2 injury accident. The jury specifically found that Wilkerson did not cause the accident. ¶4 At sentencing on May 15, the trial court stated, [I]t s the judgment of the court that you are guilty of count three, leaving the scene of a fatal injury accident. class four felony. That s a The conviction is designated as a class three felony on the sentencing document, however. ¶5 Arizona Revised Statutes section (2004) 1 28-661(B) states, in pertinent part, that if a person is involved in an accident resulting in death . . . and who fails to stop or to comply with the requirement of § 28-663 is guilty of a class 4 felony, except that if a driver caused the accident the driver is guilty of a class 3 felony. ¶6 Upon pronouncement finding at a a sentencing discrepancy hearing between and an a entry minute oral or order of confinement, we must determine the trial court s intent through a review of the record. State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). The sentencing hearing transcript shows the court intended to designate the conviction as a class four felony, [b]ased upon prior proceedings in this court, [and] in particular the jury s verdict in this court. 1 We cite to the older version of § 28-661(B) since the offense in this case occurred on May 5, 2007. See Laws 2007, Ch. 154, § 1, eff. Sept. 19, 2007). 3 ¶7 With this modification, we affirm Wilkerson s conviction and sentence. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ John C. Gemmill, Judge /s/ Philip Hall, Judge 4

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