STATE OF ARIZONA v. ADIYIA SUNDIATA

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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 FILED BY CLERK SEP -6 2013 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee, v. ADIYIA SUNDIATA, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0507 DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20102083001 Honorable Christopher Browning, Judge Honorable Paul E. Tang, Judge VACATED IN PART; AFFIRMED IN PART AS CORRECTED Roach Law Firm, L.L.C. By Brad Roach Tucson Attorney for Appellant E C K E R S T R O M, Judge. ¶1 Following a jury trial, appellant Adiyia Sundiata was convicted of unlawful use of a means of transportation. The trial court sentenced him to a presumptive, 1.5-year term of imprisonment. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating he has reviewed the record and has found no arguable issues on appeal. Counsel has asked us to search the record for reversible error. Sundiata has not filed a supplemental brief. ¶2 Viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury s finding of guilt. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). The evidence presented at trial showed an off-duty police officer had followed Sundiata and another man in a vehicle that had been reported stolen its owners testified they had not given anyone else permission to drive it. The two men drove the vehicle into a wash and ran, before ultimately being apprehended by other officers. ¶3 We further conclude the sentence imposed is within the statutory limit. See A.R.S. §§ 13-702(D), 13-1803(A)(1), (B). The sentencing minute entry, however, provides that the fines, fees, assessments, and/or restitution the court had imposed were reduced to a Criminal Restitution Order (CRO). When Sundiata was sentenced in 2012, A.R.S. § 13-805 did not permit this action. See 2011 Ariz. Sess. Laws, ch. 263, § 1 and ch. 99, § 4.1 This court has determined that, under the former § 13-805(A), the imposition of a CRO before the defendant s probation or sentence has expired constitutes an illegal sentence, which is necessarily fundamental, reversible error. State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Therefore, the CRO 1 Changes to the statute taking effect from and after March 31, 2013, now permit the entry of a CRO at sentencing in cases involving restitution to victims. 2012 Ariz. Sess. Laws, ch. 269, §§ 1, 3. 2 is vacated. The minute entry also incorrectly cites the statute under which Sundiata was convicted of unlawful use of a means of transportation. Consistent with the trial court s oral pronouncement of sentence, we correct page two of the minute entry to cite A.R.S. § 13-1803 rather than A.R.S. § 13-1814. Having found no other fundamental or reversible error in our review pursuant to Anders, Sundiata s conviction and sentence are otherwise affirmed. /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Judge CONCURRING: /s/ Virginia C. Kelly VIRGINIA C. KELLY, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 3

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