State v. Sharma

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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. ) ) PETER MOHAMMED SHARMA, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 10/04/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 11-0135 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-011597-001 DT The Honorable Michael W. Kemp, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Joseph T. Mariarz, Assistant Attorney General Attorneys for Appellee Stephen B. Manion Attorney for Appellant Phoenix Laveen S W A N N, Judge ¶1 Peter Mohammed Sharma ( Defendant ) appeals a sentence of four years imprisonment imposed after he violated the terms of his probation. Defendant s probation arose from his guilty plea to Fraudulent Schemes and Artifices, a class 2 felony. Because the trial court acted within its discretion, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶2 In February 2006, Defendant pled guilty to having committed Fraudulent Schemes and Artifices, a class 2 felony, between October 8, 2004 and May 3, 2005. On April 28, 2006, the court placed Defendant on five years probation, which was set to begin upon his release from imprisonment for an unrelated conviction. ¶3 On January 28, 2011, the trial court found that Defendant had violated the white collar provisions of his parole, which required Defendant to report his financial activities to the Adult Probation Department for supervision. Defendant does not appeal that finding. ¶4 At the disposition hearing, the court found that Defendant had continuously engaged in a pattern of behavior that was meant to help Defendant avoid detection while doing all kinds of things that [were] clearly inconsistent with [his] white collar terms. The court concluded that further probation would not be effective. outweighed the Finding that the mitigating factors aggravating factors, 1 the court imposed the We view the facts in the light most favorable to upholding the sentence. State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994). 2 minimum sentence of four years in prison, with credit for seven days of presentence incarceration. DISCUSSION ¶5 Probation defendant a is period a of judicial order time which in allowing to a criminal perform certain conditions and thereby avoid imposition of a sentence. . . . the conditions court may of vacate probation the are order not performed, suspending however, the imposition the sentence, and then impose sentence . . . . If of State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988). ¶6 Trial courts have broad discretion in sentencing; if a sentence is within statutory limits, we will not modify or reduce a sentence unless it was clearly an abuse of discretion. State v. Grier, 146 Ariz. 511, 515, 707 P.2d 309, 313 (1985). An abuse of capriciousness, discretion in arbitrariness sentencing or by is failure characterized to conduct by an adequate investigation into facts necessary for an intelligent exercise of the court's sentencing power. ¶7 Id. A.R.S. § 13-702(A)(2004) prescribes a sentencing range of four to ten years imprisonment for a class 2 non-dangerous, nonrepetitive felony with no historical prior convictions. However, a court may reduce the sentence to three years if it finds there are at least two substantial mitigating factors. A.R.S. § 13-702.01(B)(2004). 3 ¶8 a Here, before imposing sentence, the trial court reviewed disposition The court report heard prepared oral by arguments Defendant s from the parole state officer. and from Defendant s counsel, considered a statement made on Defendant s behalf by his ex-wife, and finally heard from Defendant himself. The court then found that Defendant s age, health problems and family circumstances were mitigating factors, and that although [t]here certainly [were] aggravating factors, the mitigating factors outweighed them. minimum sentence For that reason, the court imposed the prescribed by A.R.S. § 13-702(A)(2004). On this record, we cannot conclude that the court was capricious or arbitrary, or that it failed to investigate the necessary facts. ¶9 Defendant argues on appeal that the sentence is an unfair punishment for three technical violations of his probation, and that efforts. he has already been punished severely for his Defendant misconstrues his situation: the court did not sentence him for violating his probation. He was sentenced for pleading guilty to a class 2 felony, a sentence that his probation had deferred. at 19. See Muldoon, 159 Ariz. at 298, 767 P.2d Defendant had the opportunity to avoid that sentence, but relinquished it when he violated his probation. 4 Id. CONCLUSION ¶10 For the reasons given, we affirm Defendant s sentence. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ JON W. THOMPSON, Judge /s/ _____________________________________ JOHN C. GEMMILL, Judge 5

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