State v. Dean ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SHADOWE BEAR DEAN, Appellant.
No. 1 CA-CR 18-0173
FILED 2-12-2019
Appeal from the Superior Court in Navajo County
No. S0900CR201400711
The Honorable Ralph E. Hatch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Emery K. La Barge Attorney at Law, Snowflake
By Emery K. La Barge
Counsel for Appellant
STATE v. DEAN
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.
W E I N Z W E I G, Judge:
¶1 Shadowe Bear Dean appeals from the revocation of his
intensive probation and resulting sentences. After searching the record and
finding no arguable, non-frivolous question of law, Dean’s counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), asking this court to search the record for
fundamental error. Dean had an opportunity to file a supplemental brief
but did not. After reviewing the record, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Dean had sexual relations with a minor, A.L., before and after
he turned 18 years old. A.L. was 13 years old when the relationship began.
Dean and A.L. recognized the legal concerns with the relationship when
Dean became a legal adult, but they continued having sexual relations.
¶3 Dean was arrested one month after his eighteenth birthday.
He pled guilty to attempted sexual conduct with a minor under 15 years of
age (a dangerous crime against children and class 3 felony). A.R.S. § 13-
1405(A); A.R.S. § 13-705(J), (O), (Q)(1)(e). The superior court suspended his
sentence and imposed eight years of standard probation. Dean agreed to
abide by the uniform conditions of supervised probation, including the
requirement that he “maintain a crime-free lifestyle, by obeying all laws.”
¶4 Dean violated the terms of his probation when he moved to a
new residence in Navajo County and failed to inform the county sheriff
within 72 hours as required under A.R.S. § 13-3822(A). He pled guilty to
the offense, a class 4 felony, A.R.S. § 13-3824(A), and agreed he violated the
terms of his probation. The superior court reinstated his term of probation,
but placed him on intensive probation. Dean’s probation terms required
him to complete 40 hours of community service per month and to comply
with all written directives of his probation officer; he was also prohibited
from consuming alcohol and required to stay home unless for work, school,
community service, or as approved by his probation officer.
2
STATE v. DEAN
Decision of the Court
¶5 Dean again violated the terms of his probation. He consumed
alcohol, visited two people he was ordered not to visit, left home without
permission and neglected to perform monthly community service
requirements. The assigned probation officer petitioned to revoke Dean’s
probation in July 2016 and January 2017. Dean contested the alleged
violations, and the superior court eventually held a probation revocation
hearing over two days in June and November 2017.
¶6 At the hearing, the superior court admitted eight exhibits and
heard testimony from the person responsible for collecting urine samples
and Dean’s probation officer. The court determined Dean violated his
probation conditions and revoked his probation. The court sentenced him
to five years in prison for the original offense of attempted sexual conduct
with a minor (receiving 991 days of presentence incarceration credit) and
two years for failure to notify the sheriff of his new address (receiving 630
days of presentence incarceration credit), to run concurrently. Dean timely
appealed. We have jurisdiction pursuant to Ariz. Const. art. 6, § 9, and
A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A)(1).
DISCUSSION
¶7 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none, except for the clerical errors and miscalculated presentence
incarceration credit explained in paragraphs 9-10.
¶8 Dean was present and represented by counsel at all stages of
the proceedings against him. The record reflects that the superior court
afforded Dean all his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate hearings, and the
evidence presented at the revocation hearing and summarized above was
sufficient to support the court’s decision. Dean’s sentences fall within the
range prescribed by law.
¶9 We identified two clerical errors in the superior court’s
January 16, 2018 minute entry. The minute entry must be modified to
reflect in CR 2014-00711 (page two) that Dean violated A.R.S. §§ 13-1001,
13-1405, 13-1401, 13-705, 13-701, and 13-801, rather than “A.R.S. §§: 13-1001,
13-3405, 13-3401, 13-705, 13-701, and 13-801.” (Bold and underline added.)
The minute entry must also be modified to reflect in CR 2016-00042 (page
two) that “Defendant shall serve a term of 2.0 years,” as the court orally
stated at the sentencing hearing, rather than the presumptive “term of 2.5
3
STATE v. DEAN
Decision of the Court
years.” See Ariz. R. Crim. P. 26.16(a) (“The judgment of conviction and
sentencing on the judgment are complete and valid at the time the court
orally pronounces them in open court.”); State v. Lopez, 230 Ariz. 15, 18, ¶ 9
n.2 (App. 2012) (correcting sentencing minute entry to reflect the court’s
oral pronouncement).
¶10 The superior court also miscalculated Dean’s presentence
incarceration credit in the January 16, 2018 minute entry for both CR 2014-
00711 and CR 2016-00042. We modify Dean’s sentence to reflect he served
and was entitled to 994 days of presentence incarceration credit in CR 2014-
00711 and 632 days of presentence incarceration credit in CR 2016-00042.
See State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992) (correcting presentence
incarceration credit by modifying sentence without remanding).
CONCLUSION
¶11 Dean’s convictions and sentences are affirmed, except for the
clerical and sentencing modifications explained in paragraphs 9-10.
Counsel’s obligations in this appeal will end once Dean is informed of the
outcome and his future options, unless 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 (1984). On the court’s own motion,
Dean has 30 days from the date of this decision to proceed with a pro se
motion for reconsideration or petition for review. 1
AMY M. WOOD • Clerk of the Court
FILED: AA
1 We did not review the superior court’s restitution order that was
entered after Dean filed his notice of appeal because it must be separately
appealed as “[a]n order made after judgment affecting the substantial rights
of the party.” A.R.S. § 13-4033(A)(3); see Ariz. R. Crim. P. 31.2(a).
4