State v. Warax

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELISSA ROSELLEN WARAX, Appellant.

No. 1 CA-CR 23-0276

FILED 11-12-2024

Petition for Review from the Superior Court in Apache County
No. S0100CR202300035
The Honorable Garrett L. Whiting, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

R. John Lee Attorney, St. Johns
Counsel for Appellant
 STATE v. WARAX
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Melissa Rosellen Warax timely appealed under Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following her convictions for three counts of aggravated assault of a peace
officer. Warax had the opportunity to file a supplemental brief but did not
do so. Warax’s counsel searched the record and advised this Court that he
found no arguable, non-frivolous question of law. See Anders, 386 U.S. at
744; State v. Melendez, 256 Ariz. 14, 19, ¶ 1 (App. 2023).

¶2 We must “review the entire record for reversible error,
viewing the evidence in the light most favorable to sustaining the
convictions and resolving all reasonable inferences against [Warax].”
Melendez, 256 Ariz. at 19, ¶ 1 (cleaned up). Having reviewed the record, we
find no reversible error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 Late in the evening on February 4, 2023, Warax entered her
husband’s (“Husband”) bedroom holding a lemon and repeatedly asked
him for a knife. Husband responded each time that he did not have a knife,
but eventually went to the kitchen, retrieved a knife, and handed it to
Warax. After taking the knife, Warax stared at Husband and continued
asking him to give her his knife. Warax’s behavior made Husband
uncomfortable, so he left the house, drove downtown, and flagged down a
police officer. Husband explained the situation and asked the officer to
remove Warax from his home for the night.

¶4 The officer followed Husband back to his home and called
two other officers for backup. The officers knocked, introduced themselves
as officers of the local police department, and asked to come inside. Once
inside, they questioned Warax about Husband’s story, and she denied all
of Husband’s allegations. The officers advised Warax she needed to leave
Husband’s home and asked her to stand up. Warax refused, so two officers

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 STATE v. WARAX
Decision of the Court

lifted Warax to her feet. Warax tried to pull away and refused to follow
further orders. The officers placed Warax’s hands behind her back,
handcuffed her, and escorted her from the home.

¶5 Once outside, Warax became “dead weight,” dragged her
feet, and refused to walk. One of the officers tried to grab Warax’s legs to
help carry her to the patrol car, but Warax flipped over and got her
handcuffed hands in front of her body. As the officers placed Warax on the
ground to get her hands behind her back, Warax began flailing and kicking,
striking one officer in the face and a second officer in the chest and arms.
Warax tried to bite the third officer’s leg and kicked his legs.

¶6 The State charged Warax with three counts of aggravated
assault of a peace officer, a class 5 nondangerous felony. A.R.S. § 13-
1204(A)(8) and (G). Warax waived her right to a jury trial. After a bench
trial, the court convicted Warax on all counts.

¶7 The court found Warax had two historical prior felony
convictions for assaulting a peace officer and corrections officer, and
sentenced her as a category-three repetitive offender. See A.R.S. § 13-703(C).
It also considered a third historical prior felony conviction as an
aggravating circumstance and Warax’s “mental health condition” as a
mitigating factor. The court found the aggravating and mitigating factors
balanced each other out and imposed presumptive, consecutive terms of
five years’ imprisonment for each of the three counts. See A.R.S. § 13-703(J)
(sentencing range for a class 5 nondangerous felony committed by a
category-three repetitive offender). The court explained consecutive
sentences were appropriate “because of the very repetitive nature of the[]
offenses” and because there were three separate victims.

¶8 The court awarded Warax 142 days of presentence
incarceration credit. This was one day too many. Warax was arrested on
February 5, 2023, and remained in custody until sentencing on June 26,
2023. Because the date of sentencing is not included in the calculation of
credit for presentence incarceration, State v. Hamilton, 153 Ariz. 244, 246
(App. 1987), Warax was only entitled to 141 days of credit. Despite this
error, “we will not correct sentencing errors that benefit a defendant, in the
context of [her] own appeal, absent a proper appeal or cross-appeal by the
state.” State v. Kinslow, 165 Ariz. 503, 507 (1990).

DISCUSSION

¶9 The record reflects that the superior court conducted all
proceedings in compliance with the Arizona Rules of Criminal Procedure.

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 STATE v. WARAX
Decision of the Court

See State v. Gomez, 27 Ariz. App. 248, 251 (1976) (citing Ariz. R. Crim. P. 1.2).
Warax was represented by counsel at all stages of the proceedings. Warax
was not present for part of an evidentiary hearing conducted immediately
before the bench trial, but counsel waived her presence for the time she was
absent. Warax waived her presence at her arraignment but was present for
trial and sentencing. The record reveals sufficient evidence from which the
court could determine, beyond a reasonable doubt, that Warax was guilty
of assaulting three police officers. Warax spoke at sentencing. The court
stated on the record the factors it considered in imposing Warax’s sentence,
see Ariz. R. Crim. P. 26.10, and sentenced her within the statutory
guidelines, see A.R.S. §§ 13-701 to -709.

CONCLUSION

¶10 We have reviewed the entire record for arguable issues of law
and find none. We therefore affirm Warax’s convictions and resulting
sentences. See Leon, 104 Ariz. at 300–01.

¶11 Defense counsel’s obligations pertaining to Warax’s
representation in this appeal have ended. Counsel need do no more than
inform Warax of the outcome of this appeal and her future options, 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). On the Court’s own motion, Warax has thirty days
from the date of this decision to proceed, if she wishes, with a pro per
motion for reconsideration. Warax also has thirty days from the date of this
decision to proceed, if she wishes, with a pro per petition for review.

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

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