STATE v. PALMER

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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. MICHAEL SCOTT PALMER, Appellant. 1 CA-CR 11-0768 DIVISION ONE FILED: 08/09/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-156727-001 The Honorable Bruce R. Cohen, Judge AFFIRMED AS CORRECTED Thomas C. Horne, 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 Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 conviction Michael dangerous and Scott sentence felony. After Palmer for timely appeals aggravated assault, searching the record on from a class his appeal 3 and finding no Palmer s arguable counsel question filed a of brief law in that was not accordance with frivolous, Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Palmer to file a supplemental brief in propria persona, but Palmer did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Palmer s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 Late in the evening of October 21, 2010, Palmer was sitting at a table outside of a coffee shop with his girlfriend, R.W., and two other acquaintances, R.K. and C.R. C.R., who had been drinking offensive names throughout and the yelling day, [and] had been calling making a of lot R.W. noise. Palmer and the other witnesses gave differing accounts of what happened next, but agreed between Palmer and C.R. a physical altercation broke out During this altercation, Palmer, who testified he had been smoking methamphetamine earlier that day, pulled a knife from his pocket and stabbed C.R. multiple times along the left side of his body and head. 1 Palmer, R.W., and We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Palmer. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 R.K. then went to R.W. s house. After R.K. left R.W s house, he called the police and told them Palmer had stabbed C.R. The police arrested Palmer and a police detective interviewed him after informing him of his Miranda rights. denied stabbing C.R., but eventually told Palmer initially the detective he stabbed C.R. in self-defense after C.R. had grabbed him around his neck. ¶3 At trial, Palmer presented arguing he acted in self-defense. a justification defense, Palmer, R.K., R.W., and C.R. all testified about the events leading up to the stabbing. R.K. and C.R. testified Palmer was the aggressor, but Palmer and R.W. testified that Palmer stabbed C.R. only after Palmer and put Palmer in fear for his life. C.R. attacked The jury found Palmer guilty of aggravated assault and thus implicitly rejected his justification whether unable the to defense. State reach had a The proven an unanimous jury also deliberated aggravating verdict. The factor, over but superior was court sentenced Palmer to the presumptive term of 7.5 years in prison, and gave him 357 days of presentence incarceration credit. DISCUSSION ¶4 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Palmer received a fair trial. 3 He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶5 The evidence presented at trial was substantial and supports the verdict. members and the The jury was properly comprised of eight court properly instructed the jury on the elements of the charge, Palmer s presumed innocence, the State s burden of proof, and the necessity of a unanimous verdict. superior Palmer court spoke received at and sentencing, considered and his a presentence sentence was The report, within the range of acceptable sentences for his offense. ¶6 minute We note, entry however, incorrectly the superior described the court s sentencing offense as Dangerous and did not list the correct sentencing statute. grand jury s indictment alleged the offense was Non The dangerous, dangerousness was an inherent element of the offense as charged, see Ariz. Rev. Stat. ( A.R.S. ) § 13-105(12)-(13) (2010); State v. Gatliff, 209 Ariz. 362, 365, ¶ 17, 102 P.3d 981, 984 (App. 2004) ( A separate required. ), and jury the finding transcript of dangerousness is of the court s sentencing hearing reflects the court dangerous offender under A.R.S. § superior sentenced 13-704(A) Palmer (2009). not as a We therefore amend the superior court s sentencing minute entry to describe the offense as dangerous and to list A.R.S. § 13704(A) as the appropriate sentencing statute. 4 CONCLUSION ¶7 We decline to order briefing and affirm Palmer s conviction and sentence as corrected. ¶8 After the filing of this decision, defense counsel s obligations pertaining to Palmer s representation in this appeal have ended. Defense counsel need do no more than inform Palmer 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶9 Palmer has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court s own motion, we also grant Palmer 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ __ ANN A. SCOTT TIMMER, Presiding Judge /s/ __ DONN KESSLER, Judge 5

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