State v. Thomas ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
AARON PHILLIP THOMAS, Appellant.
No. 1 CA-CR 14-0865
FILED 5-17-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-418819-001
The Honorable Danielle J. Viola, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. THOMAS
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.
C A T T A N I, Judge:
¶1 Aaron Phillip Thomas appeals his convictions of armed
robbery and aggravated assault and the resulting sentences. Thomas’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent
search of the record, he found no arguable question of law that was not
frivolous. Thomas was twice granted additional time to file a supplemental
brief, but did not do so. Counsel asks this court to search the record for
reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After
reviewing the record, we affirm Thomas’s convictions and sentences as
modified to reflect credit for 626 days of presentence incarceration.
FACTS AND PROCEDURAL BACKGROUND
¶2 One evening in April 2013, as he was preparing to leave a gas
station on his motorcycle, B.K. noticed two men in the parking lot. One of
the men, Thomas, approached him and asked if he had any “bud.” B.K.
told him he did not have any, and Thomas firmly grasped his arm, poked a
sharp object into his left side, and said “Give me something. Don’t make me
cut you.” Seeing that occur, Thomas’s companion, his brother, walked past
the two, grabbed Thomas, said “don’t do this,” and kept walking. B.K.
handed Thomas eight dollars, the change from his gasoline purchase, and
asked if he could leave. Thomas let B.K. go, then headed north.
¶3 B.K. drove a short distance, then called 9-1-1 and gave a
description of Thomas and his companion. Officers subsequently saw
Thomas and his brother at a liquor store just north of the gas station. B.K.
rode in the back of an officer’s car, and upon seeing Thomas and his brother,
immediately told the officer that he was certain that the person with the
long hair and tank top—Thomas—had assaulted him.
¶4 Thomas was purchasing a bottle of beer at the liquor store’s
walk up window when police cars pulled into the parking lot. Thomas
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STATE v. THOMAS
Decision of the Court
attempted to hand the cashier money, but the cashier refused to take it
because he noticed that the cash was wrapped around a knife.
¶5 Thomas was arrested and charged with armed robbery and
aggravated assault, and following a jury trial, he was convicted as charged.
The jury also found that Thomas was on probation for three previous
offenses, that he attempted to cover up the crimes, and that the offenses
involved the infliction or threatened infliction of serious physical injury,
were dangerous, and were committed with the expectation of pecuniary
gain.
¶6 At sentencing, the court found Thomas had two historical
prior felonies, and sentenced him as a category three repetitive offender.
The court found mitigating factors, including Thomas’s history of
substance abuse, that alcohol had impaired his judgment, that he had made
efforts to participate in substance abuse programs, and that he had family
support. Finding that the aggravating factors found by the jury outweighed
the mitigating factors, the court sentenced Thomas to an aggravated term
of 17 years for the armed robbery conviction and to a concurrent aggravated
term of 13 years for the aggravated assault conviction, with 598 days of
presentence incarceration credit. The court also sentenced Thomas to
consecutive sentences for his probation violations. Thomas timely
appealed.
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
no error regarding Thomas’s convictions, but note an error in the
calculation of his presentence incarceration credit.
¶8 Thomas was present and represented by counsel at all stages
of the proceedings against him. The record reflects that the superior court
afforded Thomas 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 pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts.
¶9 Thomas’s sentences fall within the range prescribed by law,
but his sentences inaccurately understate the amount of presentence
incarceration credit to which he is entitled. Defendants are entitled to credit
for all the days spent in custody, and therefore the failure to award full
credit for time served in custody is fundamental error. See A.R.S. § 13-
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STATE v. THOMAS
Decision of the Court
712(B); State v. Cofield, 210 Ariz. 84, 86, ¶ 10 (App. 2005). Here, the superior
court’s calculation of presentence incarceration (598 days) failed to account
for a 28-day continuance before sentencing, during which Thomas was in
custody. Accordingly, we modify Thomas’s sentence to reflect 626 days of
presentence incarceration credit.
CONCLUSION
¶10 Thomas’s convictions and sentences are affirmed as modified.
After the filing of this decision, defense counsel’s obligations will end after
informing Thomas of the outcome of this appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984). Thomas shall have 30 days from the date of this
decision to proceed, if he desires, with a pro se motion for reconsideration
or petition for review.
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