State v. Webster
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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. DENNIS KENT WEBSTER, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0871 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-164651-001 DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED AS MODIFIED Terry Goddard, Attorney General Phoenix 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 Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 Dennis Kent Webster appeals his convictions and sentences for one count of aggravated driving or actual physical control of a vehicle while under the influence of intoxicating liquor or drugs and one count of aggravated driving a vehicle with an alcohol sentencing concentration minute entry of 0.08. 1 incorrectly Webster states he argues received the three years probation for Count Two because the trial court actually imposed a concurrent sentencing hearing. term The of two State years confesses probation error, at for and the the reasons that follow, we agree. ¶2 On January 7, 2009, the State filed an indictment, charging Webster with one count of aggravated driving or actual physical control of a vehicle while under the influence of intoxicating liquor or drugs and one count of aggravated driving a vehicle with an alcohol concentration of 0.08, both class four felonies. A jury Subsequently, the court convicted Webster imposed four-month on both counts. concurrent prison terms as to both counts and placed Webster on concurrent twoyear terms sentencing of supervised minute entry, probation upon however, states his release. Webster The received concurrent probation terms of two and three years for Count One and Count Two, respectively. 1 The sentencing minute entry and the sentencing hearing transcript reflect that Webster is guilty of two counts of aggravated driving while under the influence. However, the indictment, verdicts, trial minute entry, the sentencing statutes cited in the sentencing minute entry, and the parties briefs indicate it is one count of aggravated driving while under the influence and one count of aggravated driving a vehicle with an alcohol concentration of 0.08. 2 ¶3 Where there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement of sentence controls. 23, 218 P.3d State v. Zinsmeyer, 222 Ariz. 612, 622, ¶ 1069, 1079 (App. 2009) (citations omitted). Further, because we are able to ascertain the trial court s intention by reference to the record, remand for clarification is unnecessary. State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d 138, 141 (App. 1994). ¶4 We therefore correct the sentencing minute entry to reflect a concurrent term of two years probation for Count Two. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Diane M. Johnsen, Judge /s/ Donn Kessler, Judge 3
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