State v. Johnson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MITCHELL ROY JOHNSON, Appellant.

No. 1 CA-CR 23-0337

FILED 10-31-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-120249-001
The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

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

The Law Office of Kyle T. Green, Mesa
By Kyle Green
Counsel for Appellant
 STATE v. JOHNSON
Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Angela K. Paton joined.

F O S T E R, Judge:

¶1 Mitchell Roy Johnson appeals his convictions and sentences
for burglary in the second degree, criminal damage, and three counts of
endangerment. Johnson’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, he found no arguable
questions of law. Counsel asks us to search the record for reversible error.
Johnson had the opportunity to file a supplemental brief but did not do so.
After reviewing the record, this Court affirms Johnson’s convictions and
sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 On May 30, 2021, a driver in Mesa called the Mesa Police
Department to report a Chrysler Sebring had been sitting stationary at the
intersection of Mesa Drive and Brown Road through multiple green light
cycles. Two officers arrived and blocked the Sebring in place with their
patrol vehicles.

¶3 When the officers approached the Sebring, they saw a
shirtless man asleep in the driver’s seat with tattoos on his torso. Mesa
Police identified the man as Johnson through a Motor Vehicle Division
photo and confirmed that Johnson was the registered owner of the Sebring.

¶4 One officer tried multiple times to wake Johnson by knocking.
When Johnson awoke, he rammed both patrol vehicles until he had enough
room to flee. Both officers were standing near the Sebring when Johnson
started to try to drive away, and he nearly hit one of them.

¶5 The officers pursued Johnson, but they eventually lost him.
They heard over their radios that another officer found the Sebring crashed
into the front exterior of a home that S.P. and B.P. owned. A renter, M.D.,
had been inside of the home when the Sebring crashed into it. M.D. heard
tires screeching and was walking towards a window when the Sebring
crashed through the same window.

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 STATE v. JOHNSON
Decision of the Court

¶6 A neighbor, G.M., called 911 to report that Johnson had
entered his home and taken clothes that belonged to G.M. and a family
member. Officers found clothing in G.M.’s laundry room that suggested
Johnson changed in there, and then found Johnson walking off a nearby
property. They detained Johnson, and he gave them his name. Johnson was
later photographed without his shirt. One of the officers said that Johnson’s
visible tattoos were consistent with the Sebring driver’s tattoos.

¶7 The State charged Johnson with one count of burglary in the
second degree, a class 3 felony; one count of criminal damage, a class 4
felony; one count of endangerment as to the renter, a class 6 felony; and two
counts of endangerment as to the officers, class 1 misdemeanors. See A.R.S.
§§ 13-1507(B) (burglary in the second degree); 13-1602(B) (criminal
damage); 13-1201(B) (endangerment). The State alleged the felony
endangerment charge was a dangerous offense. See A.R.S. § 13-105(13).

¶8 Johnson was tried twice, with the first trial ending in a
mistrial. In the second trial, Johnson argued the State could not prove he
was the Sebring’s driver. The superior court excluded Johnson from closing
arguments, finding he was disruptive after the court admonished him.
Johnson did return, however, before the jury entered guilty verdicts on all
five counts. The jury also found that Johnson caused $10,000.00 or more in
property damage. Johnson did not attend the reading of the verdicts
regarding aggravating circumstances because he refused transportation
from the jail to court. For the three felony convictions, the jury found that
the following aggravating circumstances applied: the offenses caused
physical, emotional, or financial harm to the victim, see A.R.S. § 13-
701(D)(9); the defendant committed the offenses while on release for a
separate felony, see A.R.S. § 13-708; and, for the felony endangerment count,
the offense was a dangerous offense, see A.R.S. § 13-105(13).

¶9 The court held a separate trial on Johnson’s prior offenses
after which he was determined to be a category 3 repetitive offender. The
court also determined that Johnson had one historical prior felony
conviction for a dangerous offense.

¶10 On the second-degree burglary charge, the court sentenced
Johnson to a greater-than-presumptive term of 14 years in prison. See A.R.S.
§ 13-703(J). On the criminal damage charge, the superior court sentenced
Johnson to a greater-than-presumptive term of 13 years in prison. See A.R.S.
§ 13-703(J). The court also ordered Johnson to pay $38,086.34 in restitution
to the owners of the damaged home. See A.R.S. § 13-603(C). On the felony
endangerment charge, the court sentenced Johnson to a greater than

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Decision of the Court

presumptive term of 4.25 years in prison. See A.R.S. § 13-704(B). For these
three crimes Johnson received 795 days of presentence incarceration credit.
On the other two endangerment charges, the court sentenced Johnson to six
months in jail with credit for 180 days for each charge. See A.R.S. § 13-
707(A)(1). The court ran all five sentences concurrently with but entered a
consecutive sentence after revoking probation in a separate case. See A.R.S.
§ 13-708(E).

¶11 Johnson timely appealed. This Court has jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A)(1).

DISCUSSION

¶12 This Court has read and considered counsel’s brief and has
reviewed the record for arguable issues of reversible error. See Leon, 104
Ariz. at 300. This Court finds none.

¶13 The record reflects that the superior court afforded Johnson
all his constitutional and statutory rights and that it conducted the
proceedings in compliance with the Arizona Rules of Criminal Procedure.
Johnson was represented by counsel at all critical stages. Although Johnson
was not present for closing arguments or the reading of the verdicts
regarding aggravating factors, he forfeited his right to be present at each.
See Ariz. R. Crim. P. 9.1, 9.2(a). The evidence presented at trial was sufficient
to support the jury’s verdicts. The jury was properly composed and
instructed, and there is no evidence of misconduct. Johnson’s sentences fall
within the range prescribed by law.

¶14 This Court notes that Johnson was given an extra day of
presentence credit because the sentencing date is excluded when
calculating presentence credit. State v. Hamilton, 153 Ariz. 244, 246 (App.
1987). Johnson was incarcerated on May 31, 2021, and he was sentenced on
August 3, 2023. But this Court will not correct an illegal sentence that favors
a defendant without a cross-appeal from the State. State v. Dawson, 164 Ariz.
278, 281–82 (1990).

¶15 This Court also notes that the verdict form incorrectly asked
jurors to assess the value of “the property” – as opposed to the value of
property “damage.” See A.R.S. § 13-1602(B)(1). But this discrepancy does
not raise an arguable issue of reversible error because jurors were correctly
informed by the judge and the State that they should determine the amount
of property damage, and there was undisputed evidence that the amount
of damage exceeded $37,000.

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 STATE v. JOHNSON
Decision of the Court

CONCLUSION

¶16 This Court affirms Johnson’s convictions and sentences.
Unless defense counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review, his obligations regarding
Johnson’s appeal will end after informing him of the outcome of this appeal
and his future options. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).

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

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