State v. Purkey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JEREMY PURKEY, Appellant.

No. 1 CA-CR 14-0136
FILED 7-9-2015

Appeal from the Superior Court in Maricopa County
No. CR2013-105016-001
The Honorable Richard L. Nothwehr, Commissioner

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
 STATE v. PURKEY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.

N O R R I S, Judge:

¶1 Jeremy Purkey timely appeals from his conviction and
sentence for misconduct involving weapons, a class 4 felony, in violation of
Arizona Revised Statutes (“A.R.S.”) sections 13-3102(A)(3), -3101(A)(8)(v)
(Supp. 2014).1 After searching the record on appeal and finding no arguable
question of law that was not frivolous, Purkey’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking
this court to search the record for fundamental error. This court granted
counsel’s motion to allow Purkey to file a supplemental brief in propria
persona, but he did not do so. After reviewing the entire record, we find no
fundamental error and, therefore, affirm Purkey’s conviction and sentence
as corrected.

FACTS AND PROCEDURAL BACKGROUND2

¶2 On October 7, 2012, two Phoenix police officers, Officer R. and
Officer G., responded to an emergency 911 call at a convenience store.
Before the officers arrived at the store, they were informed that a “subject
with a gun” was “going up to cars” at the gas pumps.

¶3 When the officers arrived, they identified a subject matching
the description—Purkey—and Officer R. began explaining why they were
there. Purkey put his hands up and, when asked if he had “any weapon”
on him, said he “had something in his pocket.” Officer R. could see three

1Although the Arizona Legislature has amended certain
statutes cited in this decision since the date of Purkey’s offense, the
alterations are immaterial to the outcome of this case. Thus, we cite to the
current version of these statutes.
2We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Purkey. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

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 STATE v. PURKEY
Decision of the Court

to four inches of a silver “tube” sticking out of Purkey’s pocket. Purkey
made a “kick motion” with his leg and the tube popped out of his pocket
and fell on the ground. After patting Purkey down for additional weapons,
Officer R. retrieved the tube, and, after unscrewing it, determined it was a
nunchaku—two sticks connected by a chain. See A.R.S. § 13-3101(A)(8)(v).
One of the sticks contained a “weird shaped knife, dagger, shank, object”
measuring about three inches long.

¶4 Purkey told the officers he carried the nunchaku for “personal
protection” because, as a prohibited possessor, he was not allowed to carry
a gun. The officers confiscated the nunchaku, drafted their report, and
released Purkey.

¶5 On May 31, 2013, a grand jury indicted Purkey on one count
of misconduct involving weapons (prohibited weapon), and one count of
misconduct involving weapons (deadly weapon/prohibited possessor),
both class 4 felonies. In addition to the foregoing facts, at trial, the State
presented evidence Purkey had been convicted of a felony in 2000 (which
qualified as a historical prior felony conviction under A.R.S. § 13-105(22)(b)
(Supp. 2014)) and his “civil rights” had not been restored. A jury found
Purkey guilty on the first count, but not guilty on the second count.

¶6 During the “trial on the priors,” the State proved Purkey had
been convicted of a second felony in 2006 (which also qualified as a
historical prior felony conviction under A.R.S. § 13-105(22)(b)). The
superior court sentenced Purkey, as a category three repetitive offender, to
the presumptive term of ten years’ imprisonment, see A.R.S. § 13-703(C), (J)
(Supp. 2014), with 295 days of presentence incarceration credit.

DISCUSSION

¶7 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Purkey received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.

¶8 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members and the
court properly instructed the jury on the elements of the charge, Purkey’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report, Purkey was given an opportunity to speak at
sentencing and did so, and his sentence was within the range of acceptable
sentences for his offense. See A.R.S. § 13-703(J).

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Decision of the Court

¶9 In our review of the record, we discovered an error in the
superior court’s sentencing minute entry. At the sentencing hearing, the
superior court explicitly sentenced Purkey “as a repetitive offender . . .
subject to sentencing pursuant to A.R.S. §§ 13-703(C) and -703(J)” and it
imposed the presumptive ten year sentence applicable to a class three
repetitive offender. See A.R.S. § 13-703(C), (J). The court’s minute entry,
however, references “A.R.S. § 13-702,” the sentencing statute for first-time
felony offenders. We thus correct the sentencing minute entry to remove
the reference to A.R.S. § 13-702.

CONCLUSION

¶10 We decline to order briefing and affirm Purkey’s conviction
and sentence as corrected.

¶11 After the filing of this decision, defense counsel’s obligations
pertaining to Purkey’s representation in this appeal have ended. Defense
counsel need do no more than inform Purkey of the outcome of this appeal
and his 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, 684 P.2d 154, 156–57
(1984).

¶12 Purkey has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Purkey 30 days from the date of this decision to
file an in propria persona motion for reconsideration.

:ama

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