State v. Bookman

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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. ) ) DAVID EARL BOOKMAN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05/17/2011 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 10-0283 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-005872-001 DT The Honorable Barbara L. Spencer, Judge Pro Tempore CONVICTION AFFIRMED; SENTENCE AFFIRMED AS MODIFIED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix David Earl Bookman Appellant Florence B R O W N, Judge ¶1 David Earl Bookman appeals his conviction and sentence for one count of aggravated assault. Counsel for Bookman 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 searching the record on appeal, unable to find any arguable grounds for reversal. she was Bookman was granted the opportunity to file a supplemental brief in propria persona, and he has done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We view the facts in the light most sustaining the conviction and resolve all reasonable inferences against Bookman. State v. Guerra, 161 Ariz. (1989). 289, 293, 778 P.2d 1185, 1189 Finding no reversible error, we affirm. BACKGROUND ¶3 Bookman In with January 2009, aggravated an indictment assault, a class was 3 filed charging dangerous felony pursuant to Arizona Revised Statutes ( A.R.S. ) section 13-1203 and -1204 (2010 & Supp. 2010). 1 In February, the State attached a Plea Offer Form to its notice of disclosure. At the initial pretrial conference held in April, Bookman rejected the State s plea offer. The following evidence was presented at trial. 1 Absent material revision after the date offense, we cite the statute s current version. 2 of the alleged ¶4 The victim testified that in July 2008, she attended a party at the home of a friend, where she smoked marijuana and phencyclidine ( PCP ). She recognized Bookman, who was also at the party, as a childhood friend. Bookman rented a motel room and After the party, she and smoked crack cocaine until approximately 5:00 a.m. ¶5 After a sexual encounter, the victim told Bookman to take her home. his vehicle. Bookman abruptly left the hotel room and started The victim jumped on the hood of the vehicle while Bookman was backing out, afraid that Bookman was going to leave her stranded at the motel. Bookman stopped his vehicle and allowed the victim to get inside, accelerating immediately after she entered closed. the car but before the passenger side door was He continued to accelerate down the street, violently swerving the vehicle. As the victim began to fall out of the door, she grabbed onto the side-door pocket. She was dragged approximately one-quarter of a mile before letting go of the door. ribs, She a sustained collapsed substantial lung, a injuries, lacerated liver, including and broken severe skin abrasions. ¶6 A jury found Bookman guilty of aggravated assault and found that it was a dangerous offense. The court found Bookman had four prior historical felony convictions and sentenced him to an enhanced, presumptive term 3 of eleven and one-quarter years imprisonment with 145 days of presentence incarceration credit. He timely appealed. DISCUSSION ¶7 Bookman raises several issues in his supplemental brief; however, because he failed to raise them in the trial court, we review for fundamental error only. See State v. Henderson, 210 Ariz. 561, 563, ¶ 1, 115 P.3d 601, 603 (2005). To prevail under this standard of review, Bookman must establish that: (1) error occurred; (2) the error was fundamental; and (3) the error caused him prejudice. Id. at 568, ¶¶ 23-26, 115 P.3d at 608. ¶8 Bookman first complains that he did not get a chance to fight or ask for a lesser plea deal[,] and that his lawyer never [asked] me to fight for it. The record indicates that during a Donald 2 hearing, the court asked Bookman if his attorney had explained the State s offer, and Bookman answered in the affirmative. The court then asked him if he had any questions about the offer, and Bookman answered in the negative. When the court inquired if Bookman wished to accept or reject the State s offer, he replied, reject. ¶9 Based on fundamental error. this record, we find no error, much less The decision whether to extend a plea offer 2 State v. Donald, 198 Ariz. 406, 418, ¶ 46, 10 P.3d 1193, 1205 (App. 2000). 4 is an executive function. 197, ¶ 15, 148 concurring). bargain. P.3d See State v. Vallejo, 215 Ariz. 193, 916, Therefore, a 920 (App. defendant 2007) has no (Howard, right to J., plea State v. Delk, 153 Ariz. 70, 72, 734 P.2d 612, 614 (App. 1986). Moreover, to the extent Bookman asserts that his lawyer was responsible for failing to request a lesser plea deal or for failing to ask Bookman to fight for a lesser deal, this issue is not properly before us. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (recognizing that claims of ineffective assistance of counsel are not considered on direct appeal regardless of merit). ¶10 the Bookman scene next never argues [asked] that the the officers witnesses . . investigating . what had [happened,] and if they had, it could have cleared [him] of any [wrongdoing.] here, however, prejudice. We need not decide whether error occurred because Bookman has failed to establish Bookman s assertion is nothing more than speculation and is therefore insufficient to establish prejudice. See State v. Martin, 225 Ariz. 162, 166, ¶ 15, 235 P.3d 1045, 1049 (App. 2010). Moreover, at trial, the victim testified that Bookman was the perpetrator and eyewitness testimony revealed that a man fitting Bookman s description committed the offense. Bookman has made no showing of prejudice alleged failure to interview certain witnesses. 5 by the Therefore, officers ¶11 Bookman next victim s testimony. He challenges argues the that credibility the victim of made the several different statements and asserts that they were not true at all. Although the victim admitted that she may have made inconsistent statements, [n]o rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury. 988-89 State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, (1974). We do not reweigh this evidence on appeal. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). ¶12 Finally, Bookman challenges the court s impartiality, stating that the trial judge had a conflict of [interest] because she said she recognized the name of one of the people who attended present. the party where Bookman and the victim were The trial judge, outside the presence of the jury, explained that in 1996, when she was a public defender, she had represented someone with the same name. She asked the attorneys if they had any objection to her continuing as the trial judge in the case and neither one objected. supports Bookman s conflict of Nothing in the record interest claim; therefore, we find no error, much less fundamental error. ¶13 We have searched error and find none. the entire record for fundamental All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. 6 The record shows that Bookman was present and represented by counsel at all pertinent stages of the proceedings, except for reading of the verdict, when he was voluntarily absent. the He was afforded the opportunity to speak before sentencing, and the sentence imposed was within statutory limits. ¶14 We have found error, however, in the trial court s calculation received of 145 presentence days of credit incarceration for the credit. present Bookman case. Because Bookman was incarcerated on October 27, 2009, and sentenced on March 22, credit. 147 days 2010, he is entitled to 147 days of presentence Accordingly, we modify Bookman s sentence to reflect of presentence incarceration credit, affirm Bookman s conviction and sentence. and otherwise A.R.S. § 13-712(B) (2010); see State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). ¶15 Upon the filing of this decision, counsel shall inform Bookman of the status of the appeal and his options. Defense counsel has no further obligations 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). 7 Bookman shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DANIEL A. BARKER, Presiding Judge /s/ _________________________________ MARGARET H. DOWNIE, Judge 8

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