State v. Nelson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS JUNIOR NELSON, Appellant.

No. 1 CA-CR 19-0104
FILED 8-15-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-140285-001 DT
The Honorable Sally Schneider Duncan, Judge

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 Lawrence S. Matthew
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.
 STATE v. NELSON
Decision of the Court

W I N T H R O P, Judge:

¶1 Carlos Junior Nelson (“Appellant”) appeals his resentence on
remand for unlawful flight from a law enforcement vehicle. Appellant’s
counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), stating he has searched the
record on appeal and found no arguable question of law that is not
frivolous. Appellant’s counsel therefore requests that we review the record
for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(stating that this court reviews the entire record for reversible error). This
court allowed Appellant to file a supplemental brief in propria persona, but
he has not done so. Finding no reversible error, we affirm the resentence
on remand, but correct the trial court’s February 6, 2019 sentencing minute
entry to reflect that the historical prior conviction used to enhance
Appellant’s sentence was his conviction for possession of burglary tools,
rather than his conviction for possession of marijuana, which was not
alleged by the State before trial as a prior felony conviction.

FACTS AND PROCEDURAL HISTORY1

¶2 After a jury trial, Appellant was found guilty of one count of
unlawful flight from a law enforcement vehicle, a class 5 felony. Although
the State had properly alleged only one historical prior felony conviction
before trial, the trial court found the existence of three prior felony
convictions and sentenced Appellant to a four-year prison term as a
Category 3 repetitive offender. See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(C).
Appellant timely appealed his sentence, and the State confessed error,
agreeing that Appellant was improperly sentenced as a Category 3
repetitive offender and that the $20 probation assessment in the court’s
written sentencing order, see A.R.S. § 12-114.01(A), had not been properly
imposed because the court had failed to impose it “in open court with the
defendant present.” State v. Powers, 154 Ariz. 291, 295 (1987) (citing Ariz. R.
Crim. P. 26.9). After reviewing the record on appeal, this court accepted the
State’s confession of error, vacated Appellant’s sentence as a Category 3
repetitive offender (and the $20 probation assessment) and remanded the
matter so Appellant could be resentenced as a Category 2 repetitive
offender pursuant to A.R.S. § 13-703(B). See State v. Nelson, 1 CA-CR 18-
0346, 2018 WL 6695821, at *3, ¶ 6 (Ariz. App. Dec. 20, 2018) (mem. decision).

1 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64 (App. 1994).

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 STATE v. NELSON
Decision of the Court

¶3 On remand, the trial court sentenced Appellant as a Category
2 repetitive offender to a partially mitigated (minimum) term of 1.5 years’
imprisonment, with credit for 521 days of presentence incarceration.

¶4 Appellant filed a timely notice of appeal. We have
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

ANALYSIS

¶5 First, we note that, both before resentencing and in its
February 6, 2019 minute entry, the trial court found the existence of the
following prior felony conviction as the basis for sentencing Appellant as a
Category 2 offender: “MARIJUANA-POSSESS/USE, a Felony 6 Non
Dangerous felony committed on 03/22/2014 and convicted on 10/20/2014
in CR2014113520-001 in Maricopa County.” However, as this court noted
in its previous memorandum decision in this case, “[t]he State had timely
alleged [Appellant] had one historical nondangerous felony conviction,
possession of burglary tools, a Class 6 felony in CR 2007-005149.” Nelson, 1
CA-CR 18-0346 at *2, ¶ 2. Moreover, as conceded by the State in that earlier
appeal, “[a]t no time during the seven-month pretrial process here did the
State allege or give notice that it would use . . . any other conviction . . . to
enhance his sentence under the repetitive-offender statute.” Id. Thus,
because the State never alleged Appellant’s 2014 felony conviction as a
historical (or, for that matter, even as a non-historical) prior felony
conviction, the trial court could not properly find that conviction as a basis
for sentencing Appellant as a Category 2 offender. Instead, as this court’s
prior memorandum decision made clear, the trial court should have used
Appellant’s prior felony conviction for possession of burglary tools as the
basis for sentencing Appellant as a Category 2 offender. Accordingly, the
trial court’s February 6, 2019 sentencing minute entry must be corrected by
replacing Appellant’s 2014 felony conviction with the following prior
felony conviction: “BURGLARY TOOLS POSSESSION, a Felony 6 Non
Dangerous felony committed on 06/19/2007 and convicted on 05/01/2008
in CR2007005149-001 in Maricopa County.”

¶6 Second, we note that the trial court on remand also failed to
order that Appellant pay the $20 probation assessment, as provided for in
A.R.S. § 12-114.01. In Appellant’s first appeal, the trial court failed to orally
impose that assessment at sentencing, and the State conceded that adding
the $20 probation assessment in the court’s written sentencing order was
error and asked this court to remand to allow the court to cure that error.
Nelson, 1 CA-CR 18-0346 at *3, ¶¶ 4-5. We accepted the State’s confession

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 STATE v. NELSON
Decision of the Court

of error, vacated the probation assessment, and remanded. Id. at ¶ 6. The
error should have been corrected during resentencing by the trial court
properly advising Appellant of that assessment and ordering it. The trial
court ultimately did not do so, however, and it made no finding indicating
it exercised its discretion to waive the assessment. See A.R.S. § 12-114.01(C).
Nonetheless, the State has not appealed the failure to impose the $20
probation assessment and has therefore waived the error. See generally State
v. Lee, 160 Ariz. 323, 324 (App. 1989) (concluding that the failure by the State
to appeal an incorrect presentence incarceration credit waived the error).

¶7 Third, we note that both errors could have been avoided had
counsel provided the court with the correct information. Before
resentencing, the prosecutor inexplicably advised the court that it should
use “[t]he most recent [prior felony conviction], CR2014-113520-001” for
enhancement purposes, and the court agreed. At resentencing, after the
court initially imposed the $20 probation assessment, defense counsel
interrupted, stating, “Sorry I don’t mean to interrupt you. I believe that the
$20 probation fee was incorrectly ordered last time and should not be
ordered.” The court then agreed “[t]hat needs to be taken away,” and
concluded, “We’re not doing that.” In neither situation did opposing
counsel object to the error. As officers of the court, both the prosecutor and
defense counsel have duties to properly advise the court and be attentive.
See State v. Childs, 113 Ariz. 318, 323 (1976); State v. Darling, 109 Ariz. 148,
153 (1973) (citation omitted). In this case, neither counsel did so.

¶8 We have reviewed the remaining proceedings on remand for
reversible error and find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at
537, ¶ 30. Appellant was represented by counsel and given the opportunity
to speak at sentencing. The proceedings were conducted in compliance
with his constitutional and statutory rights and the Arizona Rules of
Criminal Procedure.

¶9 After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from the
date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

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 STATE v. NELSON
Decision of the Court

CONCLUSION

¶10 Appellant’s resentence on remand is affirmed. The trial
court’s February 6, 2019 sentencing minute entry is corrected to reflect the
existence of Appellant’s prior felony conviction for possession of burglary
tools, rather than his prior conviction for possession of marijuana.

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

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