STATE v. SHEPPARD

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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, ) ) ) ) ) ) Appellant. ) ) v. ALFRED JOHN SHEPPARD, DIVISION ONE FILED: 2/5/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0176 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-119604-002 The Honorable Susanna C. Pineda, Judge 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 J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 conviction Alfred and John Sheppard sentence for ( Appellant ) misconduct appeals involving his weapons. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm as modified herein. I. FACTS AND PROCEDURAL HISTORY 2 ¶3 On April 26, 2011, a grand jury issued an indictment, charging Appellant with one count of misconduct involving weapons, a class four felony, in violation of A.R.S. § 13-3102. 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 Before trial, the State alleged Appellant had five historical prior felony convictions. Additionally, the State and Appellant stipulated to Appellant s status as a prohibited possessor and that a valid search warrant was executed on the date of the alleged offense. ¶4 On At trial, the State presented the following evidence: April 19, Assignments 2011, Unit the Phoenix executed a search residence in Phoenix, Arizona. announcing their presence, Police Department s warrant on Special Appellant s After knocking on the door and officers breached the front door, entered, and located Appellant and his girlfriend in the master bedroom. Upon entering the room, the officers observed a shotgun leaning against a bedroom wall on Appellant s side of the bed. ¶5 After officers separated Appellant and his girlfriend, an officer placed Appellant in the backseat of a patrol car, advised him of his rights pursuant to Miranda, 3 and questioned him. Appellant possessor and acknowledged claimed the his status shotgun as belonged a to prohibited his son. Nevertheless, he acknowledged that it was unreasonable for him to have the shotgun not only inside of his inside his bedroom, and on his side of his bed. 3 See Miranda v. Arizona, 384 U.S. 436 (1966). 3 residence, but ¶6 Appellant did not testify at trial. Appellant s girlfriend, however, testified that she had placed the shotgun in the bedroom on the morning of Appellant s arrest obtaining it from a friend as collateral for a loan. after She also testified that she had not provided this information to officers on the day of the arrest. from an officer who The State offered rebuttal testimony stated that on the day of Appellant s arrest, Appellant s girlfriend claimed she was unaware who owned the gun, but admitted the shotgun was kept in the bedroom and that Appellant had handled the shotgun before. ¶7 The jury found Appellant guilty as charged. Before sentencing, the trial court determined that Appellant had two historical prior purposes. The court sentenced Appellant to a minimum term of eight years Corrections, incarceration. 4 felony convictions imprisonment with credit in for for the 114 sentence Arizona days enhancement Department of of presentence Appellant filed a timely notice of appeal. 4 The trial court s March 5, 2012 minute entry indicates that Appellant was sentenced to more than the presumptive term for the sole count. The transcript of the sentencing proceeding and the actual sentence, however, make clear that the court sentenced Appellant to a minimum term. Accordingly, the court s minute entry should be modified to reflect that Appellant was sentenced to a minimum term for the sole count. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). 4 II. ¶8 We have reviewed ANALYSIS error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdict, and the sentencing proceedings followed the statutory requirements. Appellant was represented was by given counsel the at all stages opportunity the speak to of at proceedings and sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶9 After obligations appeal have filing pertaining ended. of this to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a reconsideration or petition for review. 5 pro per motion for III. ¶10 CONCLUSION Appellant s conviction and sentence are affirmed. The sentencing minute entry is modified to reflect that the court sentenced Appellant to a minimum term of imprisonment. _______________/S/_______________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _____________/S/___________________ DIANE M. JOHNSEN, Judge ____________/S/____________________ DONN KESSLER, Judge 6

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