State v. Allen ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SAMMANTHA LUCILLE REBECCA ALLEN, Appellant.
No. 1 CA-CR 23-0106
FILED 12-19-2023
Appeal from the Superior Court in Maricopa County
No. CR2011-138856-003
The Honorable Scott Sebastian Minder, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Zhivago Law, PLLC, Phoenix
By Kerri Droban Zhivago
Counsel for Appellant
STATE v. ALLEN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Anni Hill Foster joined.
C A M P B E L L, Judge:
¶1 Sammantha Lucille Rebecca Allen appeals her sentence for
one count of negligent child abuse. Defense counsel filed a brief pursuant
to 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. Allen was
given an opportunity to file a supplemental brief in propria persona but did
not do so. After reviewing the record, we affirm Allen’s sentence.
BACKGROUND
¶2 In the summer of 2011, Allen and her husband lived with the
victim, a ten-year-old girl. One evening in July, the couple forced the victim
to engage in hours of calisthenics as punishment for taking a popsicle. This
included forcing the victim to remain in a backbend position with her feet
and head on the floor for at least one hour. Before the couple went to sleep
that evening, they locked the victim inside a storage box in a room without
air-conditioning, where the victim would eventually asphyxiate and die.
¶3 A jury convicted Allen of one count of first-degree felony
murder, a class 1 felony, one count of conspiracy to commit child abuse, a
class 2 felony, two counts of intentional or knowing child abuse, class 2
felonies, and one count of negligent child abuse, a class 6 felony. As relevant
here, the jury found Allen committed negligent child abuse by forcing the
victim to “do backbends for hours.” The jury found aggravating factors
applied and death to be an appropriate sentence for murdering the victim.
The superior court sentenced Allen to death for the murder conviction, and
to maximum and aggravated terms of imprisonment for the remaining
convictions. Regarding the negligent child abuse count, the jury found only
one aggravating factor, that the offense involved the “presence of an
accomplice,” and the court sentenced Allen to the aggravated term of two
years’ imprisonment. See A.R.S. §§ 13-701(D)(4), -702(D).1 In a separate trial,
1 We cite to the current versions of the applicable statutes because no
revisions material to this decision have since been made.
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STATE v. ALLEN
Decision of the Court
Allen’s husband was convicted of similar offenses and sentenced to death.
See State v. Allen, 248 Ariz. 352, 357–58, ¶¶ 1, 5 (2020).
¶4 On automatic appeal, the Arizona Supreme Court affirmed
Allen’s convictions and sentences, except her sentence for negligent child
abuse. See State v. Allen, 253 Ariz. 306, 364, ¶ 227 (2022). Allen argued, and
the State conceded, that the superior court’s use of a single factor to
aggravate her sentence for negligent child abuse constituted fundamental
error. Id. at 361, 363, ¶¶ 211, 220. Agreeing with the parties, the Court
explained, “[t]o impose a maximum sentence, at least one aggravator must
be found, A.R.S. § 13-701(C), but to impose an aggravated sentence, at least
two aggravating circumstances must be found for a first-time offender,
§ 13-702(C).” Id. at 362, ¶ 213. The Court found the sentence to be unlawful,
constituting fundamental error. Id. at 363, ¶ 220. The Court vacated Allen’s
sentence for negligent child abuse and remanded for resentencing. Id.
¶5 At resentencing, the superior court confirmed that it reviewed
the case file and the Arizona Supreme Court’s opinion. The State
recommended the maximum term of 1.5 years’ imprisonment. See A.R.S.
§ 13-702(D). Allen did not oppose this recommendation. The court
sentenced Allen to a term of 1.5 years’ imprisonment based on the jury’s
finding of “presence of an accomplice” as an aggravating factor. This timely
appeal followed. We have jurisdiction under Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(4).
DISCUSSION
¶6 We have reviewed the portions of the record relevant to
resentencing and have not found any reversible error. See Leon, 104 Ariz. at
300. The resentencing proceeding was conducted in compliance with the
Arizona Rules of Criminal Procedure, and the sentence imposed fell within
the statutory range. See A.R.S. § 13-702(D). The superior court acted within
its discretion in imposing a maximum sentence based on the aggravating
factor found by the jury. See Allen, 253 Ariz. at 362, ¶ 213; see also A.R.S.
§ 13-701(C). Allen was present and represented by counsel at the
proceeding. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at
critical stages); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at
critical stages). Nothing during the proceeding was unfairly prejudicial to
Allen nor was she deprived any constitutional protections.
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STATE v. ALLEN
Decision of the Court
CONCLUSION
¶7 We have reviewed the record for reversible error and find
none. Accordingly, we affirm Allen’s sentence as modified. After this
decision’s filing, defense counsel’s obligations in this appeal will end.
Defense counsel need do no more than inform Allen of the outcome of this
appeal and her future options, unless, upon review, 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). Allen has 30 days
from the date of this decision to proceed, if she wishes, with an in propria
persona motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: TM
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