State v. Jordan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN FREE JORDAN, Appellant.

Nos. 1 CA-CR 21-0093
1 CA-CR 21-0092
(Consolidated)
FILED 1-18-2022

Appeal from the Superior Court in Yavapai County
Nos. P1300CR201901292
P1300CR201800728
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

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

Kenneth S. Countryman PC, Tempe
By Kenneth S. Countryman
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the court, in
which Judge Brian Y. Furuya and Judge Michael J. Brown joined.

H O W E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Justin
Free Jordan has advised this court that counsel found no arguable questions
of law and asks us to search the record for fundamental error. Jordan was
convicted of four counts of aggravated driving or actual physical control
while under the influence of intoxicating liquor or drugs (“aggravated
DUI”), class 4 felonies. He was given an opportunity to file a supplemental
brief in propria persona; he has not done so. After reviewing the record, we
affirm Jordan’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Jordan. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). A Prescott police officer pulled
over Jordan’s vehicle because a rear-mounted camera obstructed
one-quarter of the license plate that should display the state of registration.
Because the officer was still able to see the characters on the plate, he
checked the license plate and found that it was invalid. Jordan was the car’s
only occupant.

¶3 During their interaction, the officer observed that Jordan’s
eyes were bloodshot and watery, he was grinding his teeth, and he was
fidgeting. The officer asked Jordan the status of his license plate and Jordan
said that he believed it was revoked. The officer then asked Jordan whether
he had any weapons, and Jordan responded that he did not. The officer
conducted a pat down and then asked Jordan to sit on the patrol car’s
bumper. During the course of the interaction, two other officers stopped by.
The officer conducted field sobriety tests on Jordan, which included having
him walk in a straight line, placing one foot directly in front of the other,
and balancing on one foot. During each test, Jordan could not maintain his
balance and displayed eye and body tremors. After the officer conducted

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Decision of the Court

the tests, he arrested Jordan and read him his Miranda1 rights. The officer,
who had trained as a drug-recognition expert, then asked Jordan whether
he had consumed methamphetamine; Jordan replied that it had been
“forever.” At the police department, he consented to a blood draw and
urinary analysis. The officer again asked Jordan whether he had used
methamphetamine, and Jordan said that he had a drink with the drug
in it two nights before at a friend’s house. He tested positive for
methamphetamine.

¶4 Jordan was later charged with aggravated driving or actual
physical control while under the influence while license is suspended or
revoked, aggravated driving or actual physical control with a drug or its
metabolite in the body while license is suspended or revoked, and two
counts of aggravated driving or actual physical control while under the
influence with two prior convictions of DUI within the last 84 months. The
State alleged that Jordan had three historical prior felony convictions:
criminal impersonation, a class 6 felony; aggravated driving while under
the influence of intoxicating liquor or drugs (third offense in 84 months), a
class 4 felony; and endangerment, a class 6 felony. The State also alleged
that these prior convictions constituted aggravating circumstances and that
Jordan committed the current offense while on probation. The court later
held a settlement conference, during which Jordan rejected the State’s plea
offer.

¶5 At the jury trial, Jordan’s arresting officer, his probation
officer, and the drug toxicology analyst of his drug tests testified. The jury
found Jordan guilty on all four counts of aggravated driving or actual
physical control while under the influence of intoxicating liquor or drugs.
The jury also found that having committed the offense while on probation
was an enhancement to his sentence. At the sentencing hearing, the court
found that Jordan had prior convictions—an aggravating circumstance—
and revoked his probation. The court also found as mitigating
circumstances his struggle with substance abuse and attempt to improve
his life. For the offenses on which he had been on probation, the court
sentenced him to mitigated terms of 0.33 years’ imprisonment for criminal
impersonation, with 187 days’ presentence incarceration credit; one year’s
imprisonment for aggravated driving or actual physical control while
under the influence of intoxicating liquor or drugs; 0.33 years’
imprisonment for endangerment; and six months in jail for criminal
damage, with 298 days’ presentence incarceration credit. For the current
aggravated DUI offenses, the court weighed the aggravating and mitigating

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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circumstances to impose a presumptive sentence of 10 concurrent years’
imprisonment for all four counts with 312 days’ presentence incarceration
credit. The court ordered that the sentences for the probation offenses be
served concurrently with each other but consecutively to the sentences for
the aggravated DUI offenses. Jordan timely appealed.

DISCUSSION

¶6 We review Jordan’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011).
We have read and considered counsel’s brief and fully reviewed the record
for reversible error, see Leon, 104 Ariz. at 300, and find none. All the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. Jordan was represented by counsel at all stages of the
proceedings, and the sentences imposed were within the statutory
guidelines. We decline to order briefing and affirm Jordan’s convictions and
sentences.

¶7 We note, however, that the sentencing minute entry lists all
four counts as nonrepetitive and cites the sentencing statute for first-time,
rather than repetitive, offenders. “When a discrepancy between the trial
court’s oral pronouncement of a sentence and the written minute entry can
be clearly resolved by looking at the record, the oral pronouncement in
open court controls over the minute entry.” State v. Ovante, 231 Ariz. 180,
188 ¶ 38 (2013). At the sentencing hearing, the court found that Jordan had
been convicted of prior felonies, making him a repetitive offender under
A.R.S. § 13–703. The sentencing minute entry, however, marks all four
counts as “nonrepetitive.” Accordingly, we order that the minute entry be
corrected. See id.

¶8 Upon the filing of this decision, defense counsel shall inform
Jordan of the status of the appeal and of his future options. Counsel has no
further obligations 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 (1984). Jordan shall have 30 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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Decision of the Court

CONCLUSION

¶9 For the foregoing reasons, we affirm but order that the
sentencing minute entry be corrected to reflect that Jordan was sentenced
on all four counts as a repetitive offender under A.R.S. § 13–703.

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

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