State v. Ozuna

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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. JOSE VINCENTE OZUNA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 10/13/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 09-0813 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-120290-001 DT The Honorable Lisa Ann Vandenberg, Judge Pro Tempore CONVICTIONS AND SENTENCES AFFIRMED, INCARCERATION CREDIT MODIFIED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Law Offices of Ronald M. De Brigida, Jr. By Ronald M. De Brigida, Jr. Attorneys for Appellant J O H N S E N, Judge Phoenix Glendale ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Jose Vincente Ozuna s conviction of armed robbery, a Class 2 dangerous felony, and impersonating a peace officer, a Class 4 felony. Ozuna s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Ozuna was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Ozuna s convictions and sentences, but modify his presentence incarceration credit. FACTS AND PROCEDURAL HISTORY ¶2 peddler Dressed as a police officer, Ozuna approached a street one night in Surprise and demanded to see her ID.1 After the woman said she did not have ID, Ozuna pulled a gun and pointed it at her. He then put the gun away and took money from the woman s back pocket and her cell phone and a box of CDs from her cart, then fled. 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Ozuna. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 ¶3 At trial, the woman testified she knew Ozuna from the neighborhood. The jury found Ozuna guilty of armed robbery and impersonating a peace officer. The superior court sentenced him to nine years incarceration for the robbery and 2.5 years for impersonating a peace officer, to be served concurrently. The court awarded Ozuna 194 days presentence incarceration credit. ¶4 to Ozuna timely appealed. Article Arizona 6, Revised Section 9, Statutes We have jurisdiction pursuant of the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) (2011), 13-4031 (2011) and -4033 (2011). 2 DISCUSSION ¶5 was The record reflects Ozuna received a fair trial. represented by counsel at all stages of the against him and was present at all critical stages. held appropriate pretrial hearings. He proceedings The court The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with two alternates. The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. verdict, which received and was confirmed considered a by The jury returned a unanimous juror presentence 2 polling. report, Absent material revision after the date offense, we cite a statute s current version. 3 The court addressed of an its alleged contents during the sentencing hearing and imposed legal sentences for the crimes of which Ozuna was convicted. ¶6 A defendant is entitled to presentence incarceration credit for all time spent in custody pursuant to an offense. A.R.S. § 13-712(B) (2011). A failure to award the correct amount of presentence incarceration credit towards a defendant s sentence constitutes fundamental error. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). ¶7 The court awarded incarceration credit. Ozuna 194 days of presentence That credit would have been correct if the court had imposed sentence on October 1, 2009, the original date of the sentencing hearing. The sentencing was continued to October 22, 2009, but Ozuna s presentence incarceration credit was not adjusted to take into account the additional time he was incarcerated prior to sentencing. Therefore, he is entitled to 215 days of credit. CONCLUSION ¶8 error. error We have reviewed the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881. we have identified is that Ozuna s incarceration credit was improperly calculated. The only presentence Accordingly, we affirm the convictions and the sentences imposed, except that we modify the judgment to provide incarceration credit. 4 for 215 days of presentence ¶9 After the filing of this decision, defense counsel s obligations pertaining to Ozuna s representation in this appeal have ended. Defense counsel need do no more than inform Ozuna of the outcome of this appeal and his future options, 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). On the court s own motion, Ozuna has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Ozuna has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ JON W. THOMPSON, Judge 5

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