State v. Perryman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID PERRYMAN, JR., Appellant.

No. 1 CA-CR 20-0069
FILED 5-20-2021

Appeal from the Superior Court in Maricopa County
No. CR 2019-001483-001
The Honorable Timothy J. Ryan, Judge

AFFIRMED

COUNSEL

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

Kyle T. Green, Tempe
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 This appeal is presented to us pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Perryman 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, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999),
viewing the evidence in the light most favorable to sustaining the
conviction and resolving all reasonable inferences against Perryman, State
v. Guerra, 161 Ariz. 289, 293 (1989).

¶2 M.B., Perryman’s fiancée and mother of their five children,
told police officers she and Perryman had a verbal argument that became
physical after Perryman entered M.B.’s home by climbing through a
window. In three separate indictments, Perryman was charged with
multiple crimes relating to this domestic violence incident. The only crimes
at issue here, however, are two counts of tampering with a witness. While
incarcerated before trial, one of Perryman’s phone calls was randomly
selected for monitoring by law enforcement. During the call, M.B. and
Perryman referred to each other by name and the call was associated with
Perryman’s booking number. The officer then pulled six or seven more
calls that contained conversations during which Perryman asked M.B. to
recant her story and to confirm it by providing an affidavit.

¶3 About a month before trial, Perryman informed the superior
court he wanted to represent himself. After conducting a thorough
colloquy, the court determined Perryman could represent himself, and
advisory counsel would be appointed. The court also sua sponte
consolidated all three cases for trial.

¶4 At trial, portions of various phone calls Perryman made to
M.B. from jail were played for the jury. Perryman admitted in his testimony
that he called M.B. often, but said he only did so to talk about their

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 STATE v. PERRYMAN
Decision of the Court

relationship. Perryman also acknowledged he was on probation at the time
of the offenses and he had prior felony convictions.

¶5 The jury found Perryman guilty as charged in the present
case, and found him guilty of tampering with a witness, assault, and
disorderly conduct in the other cases. Perryman has appealed only the
disposition and sentence of this case, for two counts of witness tampering.1

¶6 At Perryman’s request, the superior court appointed counsel
to represent him for sentencing. The court then imposed presumptive
concurrent sentences of 3.75 years in prison on each count. The court
awarded Perryman 343 days of presentence incarceration credit, although
he was only entitled to credit for 342 days. Because the State did not cross-
appeal the court’s calculation, we will not correct it. See State v. Dawson, 164
Ariz. 278, 286 (1990). Perryman timely appealed.

¶7 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Perryman was
present and represented himself, with the assistance of advisory counsel, at
all critical stages of the trial proceedings. He was present and represented
at sentencing by counsel. 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
the Arizona Rules of Criminal Procedure and Perryman’s constitutional
and statutory rights. Therefore, we affirm Perryman’s convictions and
sentences.

¶8 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Perryman of the outcome of this appeal and his

1 As far as the record reveals, Perryman did not appeal the convictions
and sentences in the other two cases that were consolidated for trial with
the present case. We express no opinion on whether Perryman may have a
viable claim under Arizona Rule of Criminal Procedure 32.1 for counsel’s
failure to file notices of appeal in those two cases.

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 STATE v. PERRYMAN
Decision of the Court

future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Perryman 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: AA

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