State v. Marshall ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL W. MARSHALL, Appellant.
No. 1 CA-CR 15-0044
FILED 2-9-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-002070-001
The Honorable Michael W. Kemp, Judge
JUDGMENT AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Law Office of Kyle T. Green, PLLC, Mesa
By Kyle Green
Counsel for Appellant
STATE v. MARSHALL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following Michael Marshall's convictions of aggravated assault, a Class 3
felony, and misconduct involving weapons, a Class 4 felony. Counsel has
searched the record on appeal and found no arguable question of law that
is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. at
738; State v. Clark, 196 Ariz. 530 (App. 1999). Marshall was given the
opportunity to file a supplemental brief but did not do so. Counsel now
asks this court to search the record for fundamental error. After reviewing
the entire record, we affirm Marshall's convictions and sentences, but
modify the judgment of conviction to replace "non dangerous" with
"dangerous" and to add a citation to Arizona Revised Statutes ("A.R.S.")
section 13-704 (2016).1
FACTS AND PROCEDURAL HISTORY
¶2 Following an oral confrontation with another man, Marshall
pointed a revolver at him.2 At trial, Marshall stipulated to having a prior
felony conviction, which rendered him a prohibited possessor at the time
of the assault. See A.R.S. § 13-3101(7)(b) (2016) (convicted felon is a
prohibited possessor); A.R.S. § 13-3102(A)(4) (2016) (a person commits
misconduct involving weapons by possessing a deadly weapon if the
person is a prohibited possessor). A jury convicted Marshall of aggravated
assault and misconduct involving weapons. The superior court sentenced
1 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
2 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Marshall.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
2
STATE v. MARSHALL
Decision of the Court
him to concurrent terms of 7.5 years' incarceration for the assault and 2.5
years for the weapons crime.
¶3 Marshall timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12-120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016).
DISCUSSION
¶4 The record reflects Marshall received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages, except when counsel waived his presence
during a discussion on jury instructions and aggravating factors.3
¶5 The superior court properly may rely on counsel's waiver of
a defendant's presence. See State v. Rose, 231 Ariz. 500, 504, ¶ 9 (2013). The
record reveals no circumstances that call into question counsel's waiver in
this case. The jury instructions were proper; Marshall did not receive an
aggravated sentence; and he was present for the rest of the trial, including
the reading of the final jury instructions and the closing arguments.
Accordingly, Marshall was not prejudiced by the waiver. See State v. Dann,
205 Ariz. 557, 575, ¶ 73 (2003).
¶6 The court held appropriate pretrial hearings. The State
presented both direct and circumstantial evidence sufficient to allow the
jury to convict. The jury was properly comprised of 14 members. The court
properly instructed the jury on the elements of the charges, the State's
burden of proof and the necessity of a unanimous verdict. The jury
returned a unanimous verdict, which was confirmed by juror polling.
¶7 Pursuant to a plea agreement in another matter, Marshall
stipulated that the assault conviction in this case was a dangerous offense
and that he was a convicted felon. After a colloquy with Marshall, the court
accepted Marshall's stipulation. As required by Arizona Rule of Criminal
Procedure 17.2, the court explained to Marshall that he could be sentenced
to a term of between five and 15 years for a Class 3 dangerous felony, but
did not inform Marshall of the less severe sentencing range for a Class 3
non-dangerous felony. See A.R.S. § 13-704(A) (2016) (sentencing range for
3 Although Marshall failed to attend two pretrial conferences,
following the issuance of a bench warrant, he was present for the
rescheduled pretrial conference, at which the court confirmed the final trial
management conference date and trial date.
3
STATE v. MARSHALL
Decision of the Court
a Class 3 dangerous felony is between five and 15 years); A.R.S. § 13-702(A),
(D) (2016) (sentencing range for a Class 3 non-dangerous felony is between
two and 8.75 years); see also State v. Osborn, 220 Ariz. 174, 176-77, ¶ 6 (2009)
(court must inform defendant of the effect an admission may have on the
applicable sentencing range). The oversight, however, did not prejudice
Marshall, see State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005), because the
court had told him of the two sentencing ranges during the final trial
management conference. Cf. State v. Morales, 215 Ariz. 59, 62, ¶ 11 (2007)
("[P]rejudice generally must be established by showing that the defendant
would not have admitted the fact of the prior conviction had the colloquy
been given.").
¶8 The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed legal
sentences for the crimes of which Marshall was convicted.4
¶9 The transcript confirms that Marshall accepted a plea
agreement in a separate criminal case contingent upon his stipulation that
the assault in this case is a dangerous offense. Accordingly, we correct the
judgment of conviction for the assault conviction to reflect that it is
"dangerous" instead of "non dangerous." The sentencing minute entry also
erroneously omits a reference to A.R.S. § 13-704. Accordingly, we modify
the sentencing minute entry to reflect that Marshall's conviction was for a
"dangerous" offense pursuant to A.R.S. § 13-704(A). See State v. Bowles, 173
Ariz. 214, 216 (App. 1992) (when an appellate court can determine the
superior court's intent from the record, remand for clarification is
unnecessary).
CONCLUSION
¶10 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences. See
Leon, 104 Ariz. at 300.
¶11 After the filing of this decision, defense counsel's obligations
pertaining to Marshall's representation in this appeal have ended. Defense
counsel need do no more than inform Marshall of the outcome of this
appeal and his future options, unless, upon review, counsel finds "an issue
4 The record does not allow us to ascertain the number of days of
presentence incarceration credit to which Marshall was entitled, but neither
party has raised any objections to the award of 477 days' presentence
incarceration credit.
4
STATE v. MARSHALL
Decision of the Court
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, Marshall has 30 days from the date of this decision to proceed,
if he wishes, with a pro per motion for reconsideration. Marshall has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.
:ama
5