State v. Alandar

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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 DIVISION ONE FILED: 11-09-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KIMBERLY NICOLE ALANDAR, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 09-0450 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-150191-001 DT The Honorable Kristin Hoffman, Judge AFFIRMED 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 James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix H A L L, Judge ¶1 conviction Kimberly and Nicole sentence Alandar imposed appeals for one the count trial of court s aggravated assault, a class one misdemeanor. For the following reasons, we affirm. BACKGROUND1 ¶2 Alandar was initially indicted on one count of aggravated assault, a class six felony and domestic violence offense, for intentionally, knowingly or recklessly caus[ing] physical injury to . . . a child of 15 years of age or under in October 2007. The State moved to designate the count as a class one misdemeanor, which the court granted. Prior to trial, the court held a comprehensive pretrial conference and asked if the parties anticipated requesting a lesser included offense. Alandar s attorney responded, [n]o. ¶3 The case proceeded to a bench trial and neither party requested The that victim therefore the testified five years incident. After guilty this of misdemeanor. stated court that he consider a lesser-included was old closing offense, born in at the time arguments, which is November of the a 2001 the court offense. and October found misdemeanor -- was 2007 Alandar Class 1 The trial minute entry, filed the following day, the court found Alandar Assault[,] a class 1 misdemeanor. 1 guilty of Aggravated The sentencing minute entry We view the facts in the light most favorable to affirming the conviction. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 also reflected that Alandar was guilty of aggravated assault and suspended imposition of sentence and placed her on probation for one year. At the sentencing hearing, however, the court found Alandar guilty of Count 1, Assault, a Class 1 misdemeanor. ¶4 Alandar timely appeals and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶5 Alandar presents the sole issue on appeal of whether the court erred by finding Alandar guilty of aggravated assault when it found her guilty of assault at the sentencing hearing. Upon finding a discrepancy between an oral pronouncement at a sentencing hearing and a minute entry, 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). Pursuant to A.R.S. § 13-1204(A)(6) (2010), Alandar was charged with one count of aggravated assault because she was over eighteen years of age at the time of the incident and the victim was less than fifteen years old. Neither Alandar nor the State requested the court consider a lesser-included offense. Thus, the court considered whether Alandar was guilty of the charged offense, aggravated assault, at the time of the trial. conclusion of the trial, the court 3 stated that At the Alandar was guilty of this misdemeanor. we believe it offense, which is a misdemeanor -- Class 1 Although the court failed to specify the offense, is clear from the referring to aggravated assault. record that the court was The court further found in two separate minute entries that Alandar was guilty of aggravated assault. ¶6 when Thus, it the pronounced aggravated assault. court misspoke Alandar at guilty the of sentencing assault hearing rather than Alandar s reliance on case law holding that the oral pronouncement of sentence controls over a discrepancy in the written judgment, see e.g., State v. Zinsmeyer, 222 Ariz. 612, 622, ¶ 23, 218 P.3d 1069, 1079 (App. 2009), is misplaced. That line of cases simply stands for the logical proposition that what the trial court actually says is to be preferred over a written misdescription of what the court stated. applicable in a circumstance in which the It is not discrepancy only arises at a subsequent hearing when the court misstates its previous finding. record to Instead, as in Stevens, we examine the entire determine the court s intent. Our review of the record leads us to conclude that the court found Alandar guilty of aggravated assault and intended that she be sentenced for that offense. We therefore need not remand for clarification. See State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d 138, 141 n.2 (App. 1994) (if we are able to ascertain the trial 4 court's intention by reference to the record, remand for clarification is unnecessary. ). CONCLUSION ¶7 For the foregoing reasons, we affirm Alandar s suspended sentence and conviction of one count of aggravated assault, a class one misdemeanor. _/s/_______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/_______________________________ SHELDON H. WEISBERG, Judge _/s/_______________________________ PETER B. SWANN, Judge 5

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