State v. Rice

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELROY MILTON RICE, JR., Appellant.

No. 1 CA-CR 17-0302
FILED 11-20-18

Appeal from the Superior Court in Maricopa County
No. CR 2015-132023-001
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

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

Brown & Little, PLC, Chandler
By Matthew O. Brown
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Elroy Milton Rice, Jr. appeals his convictions and sentences
for attempt to commit second-degree murder and two counts of aggravated
assault. Counsel for Rice filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising that after
searching the record on appeal, he found no meritorious grounds for
reversal. Rice was given the opportunity to file a supplemental brief but
did not do so. Our obligation is to review the entire record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the
facts in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Rice. See State v. Guerra, 161 Ariz. 289, 293
(1989).

¶2 Rice was initially a bystander to a fight in which his friend,
Rudy, was being attacked by one of the victims, V.P. When J.P., the second
victim, ran towards the fight, Rice pointed a gun at J.P., telling him not to
jump into the fight. Soon thereafter, J.P. approached the fight, kicked Rudy,
and then managed to separate V.P. and Rudy. The fight resumed, however,
and Rudy told Rice to shoot V.P. Rice fired his gun, hitting V.P. and causing
him to suffer a fractured rib, bullet fragments in his spine, and the loss of
one kidney, among other injuries. After Rice was detained, J.P. identified
Rice as the shooter. Rice consented to a police interview, during which he
admitted to pointing a gun at J.P. and stated that he “tried to shoot the gun
real quick just to scare somebody and run.”

¶3 The State charged Rice with four counts of aggravated assault
and one count of attempt to commit second-degree murder. Before trial,
the State dropped two of the aggravated assault charges. The State also filed
an allegation of aggravating circumstances.

¶4 The case proceeded to trial, where Rice and Rudy were tried
as co-defendants until the superior court granted Rudy’s motion to sever
during trial. As to the charge of aggravated assault of J.P., Rice presented

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Decision of the Court

a defense that his actions were justified by self-defense, defense of a third
person, and crime prevention.

¶5 Following the 16-day trial, the jury found Rice guilty as
charged. The jury then found that the State proved aggravating
circumstances as to each count. The superior court imposed “slightly
aggravated” concurrent sentences of 11 years’ imprisonment for attempt to
commit second-degree murder and 8 years for each of the aggravated
assault charges, with 650 days of presentence incarceration.1 Rice then filed
this appeal.

¶6 After a thorough review of the record, we find no reversible
error. See Clark, 196 Ariz. at 541, ¶ 50. The record reflects Rice was present
(or his presence was waived) and represented by counsel at all critical
stages of the proceedings against him. The evidence presented supports
the convictions, and the sentences imposed fall within the range permitted
by law. As far as the record reveals, these proceedings were conducted in
compliance with Rice’s constitutional and statutory rights and the Arizona
Rules of Criminal Procedure. Therefore, we affirm Rice’s convictions and
the resulting sentences.

¶7 Defense counsel’s obligations pertaining to Rice’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do no more than inform Rice of the outcome of

1 The court awarded Rice 650 days of presentence incarceration credit
but he was entitled to only 648 days. The State did not cross-appeal the
court’s calculation and thus we have no authority to correct it. State v.
Dawson, 164 Ariz. 278, 286 (1990) (“In the absence of a timely appeal or
cross-appeal by the state seeking to correct an illegally lenient sentence, an
appellate court has no subject matter jurisdiction to consider that issue.”).

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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. Id. at 584–85. Rice has 30 days from the date of this
decision to proceed, if he wishes, with a pro per motion for reconsideration
or petition for review.

AMY M. WOOD • Clerk of the Court
FILED: JT

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