State v. Salmon ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TIMOTHY SALMON, Appellant.
No. 1 CA-CR 19-0566
FILED 9-15-2020
Appeal from the Superior Court in Maricopa County
No. CR2018-141927-001
The Honorable Katherine M. Cooper, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
STATE v. SALMON
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Randall M. Howe1 joined.
W I L L I A M S, Judge:
¶1 Timothy Salmon2 appeals his convictions and sentences for
aggravated assault, resisting arrest, possession of dangerous drugs, and
possession of drug paraphernalia. Salmon’s counsel filed a brief per Anders
v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
advising us there are no meritorious grounds for reversal. Salmon was
given the opportunity to file a supplemental brief in propria persona but did
not do so. Our obligation is to review the entire record for reversible error,
State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the evidence in
the light most favorable to sustaining the convictions and resolving all
reasonable inferences against Salmon, State v. Guerra, 161 Ariz. 289, 293
(1989). After reviewing the record, we affirm Salmon’s convictions and
sentences as modified.
FACTUAL AND PROCEDURAL HISTORY
¶2 On August 25, 2018, around 10:00 p.m., Officers Davidson
and Meyer were on patrol in Phoenix when they saw Salmon riding down
the street on a bicycle with no lights or reflectors. Intending to stop Salmon
for a traffic violation, the officers turned on the lights and sirens of their
fully-marked police vehicle and began following Salmon. The officers
instructed Salmon to stop, but he refused, turning around and shouting
expletives. While the officers pursued Salmon in the street’s median at
approximately five miles per hour, Salmon abruptly stopped his bicycle,
causing the vehicle to collide into the back tire of Salmon’s bicycle. Salmon
was not injured in the collision, and, after shouting an expletive at the
officers, dismounted the bicycle and began running in the street’s median.
1Judge Randall M. Howe replaces the Honorable Kenton D. Jones, who was
originally assigned to this panel. Judge Howe has read the briefs and
reviewed the record.
2 Salmon was indicted under a different name, which was later corrected.
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STATE v. SALMON
Decision of the Court
¶3 Officer Meyer ran after Salmon and tackled him to the
ground. Salmon fought back, at first by struggling to pull away, but then
he punched and kicked Officer Meyer to avoid being handcuffed. Officer
Davidson joined Officer Meyer and attempted to secure Salmon’s upper
body. Salmon pulled a hunting knife from a sheath on his right hip and
made stabbing motions toward the officers’ necks and faces, but neither
officer was stabbed. The officers continued to struggle with Salmon until
they were able to remove the knife from Salmon’s grip and take him into
custody. Salmon sustained injuries requiring emergency room treatment.
¶4 A search incident to arrest revealed Salmon had
methamphetamine in a baggie in his pocket, as well as in a capsule on a
necklace.
¶5 Salmon was charged with two counts of aggravated assault,
Class two dangerous felonies (“Count One” and “Count Two”); resisting
arrest, a Class six felony (“Count Three”); possession or use of dangerous
drugs, a Class four felony (“Count Four”); and possession of drug
paraphernalia, a Class six felony (“Count Five”). Salmon filed a motion to
sever Counts One, Two and Three from Counts Four and Five; following
oral argument the superior court denied the motion.
¶6 At trial, Salmon renewed his severance motion and also
moved for a directed verdict under Rule 20 following the State’s
presentation of the case. The superior court denied both motions. A jury
convicted Salmon on all counts, and determined Counts One and Two were
dangerous offenses. Salmon was sentenced to presumptive terms of
imprisonment as follows: 10.5 years each for Counts One and Two; 1 year
for Count Three; 2.5 years for Count Four; and 1 year for Count Five, all
running concurrently, with presentence credit for 392 days served. Salmon
filed a motion for a new trial under Rule 24.1, which the court denied. This
timely appeal followed. We have jurisdiction pursuant to Article 6, Section
9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A), 13-4031 and
13-4033.
DISCUSSION
¶7 After a thorough review of the record, we find no reversible
error requiring remand, Clark, 196 Ariz. at 541, ¶ 50, but note one error we
can resolve. The superior court credited Salmon with 392 days of
presentence incarceration. And, although neither the State nor defense
counsel discussed presentence incarceration at the sentencing hearing, the
presentence report indicates Salmon was incarcerated beginning August
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STATE v. SALMON
Decision of the Court
26, 2018. There is nothing in the record suggesting Salmon was ever out-of-
custody between August 26, 2018 and September 25, 2019, the date he was
sentenced. In fact, the sentencing transcript specifically noted that Salmon
appeared “in custody” for sentencing. Because Salmon was continuously
in-custody from August 26, 2018 through September 25, 2019, he should
have been credited with 396 days of presentence incarceration.
¶8 The remainder of the record reflects Salmon was present and
represented by counsel at all critical stages of the proceedings. The evidence
presented supported the convictions, and the sentences imposed fall within
the range permitted by law. The superior court appropriately considered
and resolved pre-trial, trial, and post-trial motions. As far as the record
reveals, these proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure and Salmon’s constitutional and statutory
rights.
CONCLUSION
¶9 We have reviewed the entire record for reversible error and
find none. Therefore, we affirm Salmon’s convictions and sentences but
modify the sentencing minute entry to reflect that Salmon is credited with
396 days of presentence incarceration for each of the five counts.
¶10 After this decision’s filing, defense counsel’s obligation
pertaining to Salmon’s representation in this appeal will end. Defense
counsel need do no more than inform Salmon of this appeal’s outcome and
his future options, unless, upon review, counsel finds “an issue appropriate
for submission” to the Arizona Supreme Court by petition for review. State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the Court’s own motion, Salmon
has 30 days from the date of this decision to proceed, if he wishes, with an
in propria persona motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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