State v. McNew

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRYAN LEE MCNEW, Appellant.
No. 1 CA-CR 22-0256
FILED 1-5-2023
Appeal from the Superior Court in Yavapai County
No. V1300CR202180062
The Honorable Michael R. Bluff, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
STATE v. MCNEW
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge Samuel A. Thumma joined.
F U R U R A, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Bryan Lee
McNew advised this court that she has found no arguable question of law
after searching the entire record and asks this court to conduct an Anders
review. McNew was given the opportunity to file a supplemental brief but
did not do so. This court has reviewed counsel’s brief and the record and
has found no reversible error as to McNew’s convictions. However, he was
not given full credit for his presentence incarceration. Accordingly,
McNew’s convictions are affirmed, and his sentences are modified.
FACTS AND PROCEDURAL HISTORY
¶2 McNew was arrested on December 10, 2020 by narcotics
trafficking detectives after an investigation led officers to believe he was
involved in drug sales. Following the investigation, detectives executed a
search warrant of a home where McNew was discovered and taken into
custody. McNew was taken to the Cottonwood Police Station, where he was
advised of his Miranda rights and interviewed by detectives. The interview
lasted less than an hour and was recorded. During the interview, McNew
made several incriminating statements, confirming that he sold
methamphetamine and providing details about his sales.
¶3 McNew was charged by information with Count 1,
possession of dangerous drugs for sale (methamphetamine), a Class 2
felony; Count 2, possession of narcotic drugs for sale (fentanyl), a Class 2
felony; Count 3, possession of drug paraphernalia, a Class 6 felony; Count
4, misconduct involving weapons during commission of a felony, a Class 4
felony; and Count 5, misconduct involving weapons while being a
prohibited possessor, a Class 4 felony. Count 2 was dismissed by the State
prior to trial and Count 5 was severed for resolution following trial on the
other three counts.
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STATE v. MCNEW
Decision of the Court
¶4 Evidence presented at trial showed that McNew possessed
various items indicative of methamphetamine sales, including several bags
containing methamphetamine, scales with what appeared to be
methamphetamine residue, unused bags, and a large amount of cash.
Detectives testified that these items, taken together, suggested McNew’s
involvement in methamphetamine sales. Detectives further presented
evidence that McNew was in possession of a loaded and operational
shotgun at the time of his arrest, which was discovered during execution of
the search warrant. Finally, McNew’s recorded statements to detectives
were admitted and played at trial, during which McNew admitted to
selling methamphetamine.
¶5 Following trial, a jury found McNew guilty on Counts 1, 3,
and 4, and he subsequently pled guilty to Count 5. The trial court also found
that McNew had at least two prior historical felony convictions, making
him a category three repetitive offender.
¶6 After considering the presentence report and mitigation
presented by McNew’s counsel, the court sentenced McNew to the
minimum term of imprisonment on each count. McNew was sentenced to
the minimum terms of 14 years’ flat-time imprisonment on Count 1, three
years’ imprisonment on Count 3, and eight-years’ imprisonment each on
Counts 4 and 5, all to run concurrently. The court also gave McNew credit
for 521 days of presentence incarceration. McNew timely appealed.
DISCUSSION
¶7 A defendant is entitled to credit for “[a]ll time actually spent
in custody pursuant to an offense until the prisoner is sentenced to
imprisonment for such offense.” Ariz. Rev. Stat. (“A.R.S.”) § 13–712(B).
Failure to award full credit for presentence incarceration constitutes
fundamental error. State v. Cofield, 210 Ariz. 84, 86 ¶ 10 (App. 2005)
(citing State v. Ritch, 160 Ariz. 495, 498 (App. 1989)).
¶8 The record shows that McNew was arrested on December 10,
2020 and remained in custody until sentencing on May 16, 2022. The record
contains no indication that McNew was released at any time prior to
sentencing. McNew is therefore entitled to 522 days of presentence
incarceration credit. However, he was credited with only 521 days of
presentence incarceration.
¶9 We have authority to modify a sentence to reflect the correct
amount of presentence incarceration credit. State v. Long, 207 Ariz. 140, 148
¶ 42 n.6 (App. 2004) (citing A.R.S. § 13–4037(B)); see also Ariz. R. Crim. P.
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STATE v. MCNEW
Decision of the Court
31.17(b). Accordingly, McNew’s sentences are modified to reflect credit for
522 total days of presentence incarceration.
¶10 No other fundamental error is discernable from this record.
See Leon, 104 Ariz. at 300 (“An exhaustive search of the record has failed to
produce any prejudicial error.”). McNew was represented by counsel at all
stages of the proceedings, and he was present at all critical stages. The
record contains substantial evidence supporting the verdict. Other than as
discussed above, the sentences imposed were within statutory limits. In all
other respects, from the record presented, all proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure.
CONCLUSION
¶11 We have read and considered counsel’s brief and have
searched the record provided for reversible error and have found none.
Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Accordingly, McNew’s convictions are affirmed. His sentences are
modified to reflect presentence incarceration credit of 522 days for each
count.
¶12 Upon the filing of this decision, counsel is directed to inform
McNew of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
McNew 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.
AMY M. WOOD • Clerk of the Court
FILED: AA
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