State v. Sherman

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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. MATTHEW SHERMAN, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 08/17/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0651 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-157317-001 DT The Honorable Robert L. Gottsfield, Judge AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Matthew Sherman (defendant) appeals from his conviction and the sentence imposed. ¶2 Defendant s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he See State v. Clark, 196 Ariz. 530, 537, & 30, 2 has not done. P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, & 2, 68 P.3d 407, 408 (2003). Finding no reversible error, we affirm. ¶4 On indictment victim Revised December with G.M.), a Statutes one 24, 2008, count class of five (A.R.S.) defendant aggravated felony, section in was assault violation 13-1204(A)(8) charged (Count of by I - Arizona (2010); one count of aggravated assault (Count II - victim G.M.), a class three felony, in violation of A.R.S. § 13-1204(A)(9); and one count of aggravated assault (Count III - victim P.P.), a class 2 three felony, in violation of A.R.S. § 13-1204(A)(8). The following evidence was presented at trial. ¶5 On July 10, 2008, Officer P.P. and Officer G.M. of the Graham County defendant, a Sheriff s prison Office inmate, were to instructed a doctor s to transport appointment in Phoenix. They were scheduled to leave the jail at 10:00 a.m. and instructed they leaving. defendant to use the restroom before Despite the officers admonition to use the restroom before leaving, defendant repeatedly asked the officers to stop so he could use the restroom. The officers informed him that they could not stop until they reached the doctor s office. ¶6 When they arrived at the doctor s office, Officer G.M. obtained the key to the restroom and both officers escorted defendant to the restroom. After defendant finished in the restroom, the officers proceeded to escort him up the stairs to Dr. J.T. s office. When Officer G.M. rang the bell to inform Dr. J.T. s staff that they had arrived, defendant latched onto the officer s right bicep with his mouth. As defendant bit Officer G.M., he also pressed down on the officer s holster and began pulling on his gun. ¶7 instructed Dr. his J.T. quickly staff to realized call 9-1-1. what was During occurring the and officers attempt to subdue defendant, defendant kicked Officer P.P. in 3 the chest. Defendant was eventually subdued and the officers and Dr. J.T. escorted him back to the patrol car. ¶8 After a four-day trial, the jury found defendant guilty of the lesser included offense of disorderly conduct on Count I, a class one misdemeanor, and not guilty as to Counts II and III. The trial court sentenced defendant to a six-month jail term. ¶9 We have read and considered counsel s brief and have searched 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 compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶10 After obligations appeal have the pertaining ended. filing to of this defendant s Counsel need do decision, counsel s representation no more than in this inform defendant of the status of the appeal and his future options, unless counsel s review reveals 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, 15657 (1984). Defendant has thirty days from the date of this 4 decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant s conviction and sentence are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge . /s/ PATRICK IRVINE, Judge . 5

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