State v. Anderson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALBERT ANDERSON,
Appellant.

No. 1 CA-CR 19-0600
FILED 8-12-2021

Appeal from the Superior Court in Maricopa County
No. CR2019-104052-001
The Honorable Ronee Korbin Steiner, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
 STATE v. ANDERSON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Albert Jerome Anderson appeals his conviction and sentence
for misconduct involving weapons. After searching the record and finding
no arguable, non-frivolous question of law, Anderson’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking this court to search the record for fundamental
error. Anderson had the opportunity to file a supplemental brief but did
not. We affirm Anderson’s conviction and sentence after reviewing the
record but vacate the portion of the sentencing order requiring him to pay
for DNA testing.

FACTS AND PROCEDURAL BACKGROUND

¶2 A bus driver contacted Phoenix police in January 2019 to
report that Anderson was “sleeping on the bus [and] refusing to exit.”
Officers responded, entered the bus and detained Anderson. Officers then
frisked Anderson and found a loaded .380 semi-automatic handgun in his
pants. Anderson was arrested.

¶3 Because Anderson was on felony probation, the State charged
him with misconduct involving weapons. See A.R.S. §§ 13-3101(A)(7)(d); -
3102(A)(4). The State also offered Anderson’s felony probation status as an
aggravating circumstance under A.R.S. § 13-708(C). Anderson pleaded not
guilty.

¶4 After a three-day trial, the jury convicted Anderson of the
charged offense but found the State did not prove Anderson’s felony
probation status beyond a reasonable doubt. The superior court sentenced
Anderson to ten years in prison on the weapons charge and one consecutive
1.5-year term for violating the terms of his probation after finding six prior
felony convictions. See A.R.S. § 13-703(C), (J); -708(E). The court awarded
Anderson 257 days’ presentence incarceration credit.

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 STATE v. ANDERSON
Decision of the Court

¶5 Anderson timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

¶6 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none. Anderson was present and represented by counsel at all stages of the
proceedings against him. The record reflects that the superior court
afforded Anderson all his constitutional and statutory rights and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdict. Anderson’s sentence falls within the range
prescribed by law, with sufficient credit given for presentence
incarceration.

¶7 We correct one sentencing error. See State v. McPherson, 228
Ariz. 557, 559, ¶ 4 (App. 2012) (“[A]n illegal sentence constitutes
fundamental, prejudicial error.”). The superior court erroneously ordered
Anderson to pay for DNA testing under A.R.S. § 13-610. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14 (App. 2013) (holding that A.R.S. § 13-610 cannot
form the basis to assess a defendant the cost of DNA testing). We thus
vacate that portion of the court’s sentencing order.

CONCLUSION

¶8 Anderson’s conviction and sentence are affirmed. Counsel’s
obligations in this appeal will end once Anderson is informed of the
outcome and his future options, unless 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). On the court’s own motion,
Anderson has 30 days from the date of this decision to proceed with a pro
se motion for reconsideration or petition for review.

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

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