State v. Gosney

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROGER BRIAN GOSNEY, Appellant.

No. 1 CA-CR 24-0130
FILED 04-24-2025

Appeal from the Superior Court in Maricopa County
No. CR2019-104832-001
The Honorable Laura Johnson Giaquinto, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Law Office of Stephen M. Johnson, Inc., Phoenix
By Stephen M. Johnson
Counsel for Appellant
 STATE v. GOSNEY
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Vice Chief Judge Randall M. Howe
joined.

J A C O B S, Judge:

¶1 A jury convicted Roger Brian Gosney of two counts of
Aggravated Driving Under the Influence (“DUI”) and sentenced him to two
12-year concurrent prison terms. He argues the sentence violated his rights
to due process because it rests, in part, on an incorrect prior prison-release
date. Because there was no factual error, we affirm.

FACTS AND PROCEDURAL HISTORY

A. Officers Arrest Gosney, and a Grand Jury Indicts Him on
Two Counts of Aggravated DUI.

¶2 On January 30, 2019, officers arrested Gosney during a traffic
stop after Gosney failed field sobriety tests and showed other signs of
impairment. Officers also discovered his driver’s license had been revoked.
Officers obtained a search warrant for Gosney’s blood, which contained a
blood alcohol concentration (“BAC”) of .227. A grand jury indicted Gosney
on two counts of Aggravated DUI, both class four felonies. The State also
alleged Gosney had four prior felony DUI convictions.

B. The Superior Court Issued a Bench Warrant After Gosney
Failed to Appear, and the Jury Convicted Gosney.

¶3 In May 2019, Gosney failed to appear at a comprehensive
pretrial conference, and the court issued a bench warrant for his arrest. The
court tried Gosney in absentia after he failed to appear at trial in August
2019. The jury convicted Gosney on both counts. The court then held a trial
on the alleged priors and found the State proved all four prior DUI felony
convictions.

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Decision of the Court

C. The Superior Court Sentenced Gosney to Two 12-Year
Concurrent Prison Terms.

¶4 Four years later, in November 2023, officers arrested Gosney
on the outstanding warrant. The court eventually sentenced Gosney in
January 2024.

¶5 At sentencing, the court found several aggravating factors,
consisting of Gosney’s: criminal record (including nine prior felony and
misdemeanor DUI convictions, three of which had occurred within the last
84 months); absence from trial and cutting his electronic monitor; elevated
BAC at the time of the offense; and committing the offense within “26 days
after [being] released from the Department of Corrections [“DOC”] on a
same or similar offense.” The court also found Gosney’s support in the
community, medical issues, and status as a business owner to be mitigating
factors. The court found Gosney’s alcohol dependence to be both
mitigating and aggravating.

¶6 As proof that the January 2019 DUI was committed within 26
days of Gosney’s prior release, the State submitted DOC records showing
Gosney’s “Prison Release Date” as “01/04/2019[.]” The records listed
“Release Type” as “COMM SUP END DT[.]”

¶7 Before the judge announced the sentence, Gosney’s counsel
clarified that Gosney did not commit the January 2019 offense within 26
days of his prior prison release. He stated that while Gosney did not
complete community supervision until January 4, 2019, he was physically
released from prison months prior. The court explicitly acknowledged this
fact when it stated,

So, to make our record clear, I will consider that you were
perhaps physically released from the Department of
Corrections in 2017, but you were on community supervision
until January 4th, 2019, and these two offenses were
committed on January 30th, 2019.

And the State’s point was that was merely 26 days after you
were released from the Department of Corrections for a term
of seven and a half years for the same offense that you
committed in this matter.

¶8 The court sentenced Gosney to two 12-year concurrent prison
terms. Gosney timely appealed. We have jurisdiction. Ariz. Const. art. 6,
§ 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).

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Decision of the Court

DISCUSSION

The Sentencing Judge Did Not Sentence Gosney Based on
Incorrect Facts.

¶9 The parties dispute what standard of review applies. The
State argues we should apply fundamental error because Gosney failed to
object to the supposed factual error upon which his sentence rests, while
Gosney contends he preserved his objection to the supposed factual
mistake. Yet even if we assume harmless error applies, as Gosney suggests,
his appeal misses the mark because he establishes no error, fundamental or
otherwise. See State v. Diaz, 223 Ariz. 358, 360 ¶ 11 (2010) (“Regardless of
how an alleged error ultimately is characterized . . . a defendant on appeal
must first establish that some error occurred.”).

¶10 Gosney argues the court violated his due process rights by
“rel[ying] on a false and material fact in sentencing him to an aggravated
term of twelve years.” Specifically, he argues “[t]he court‘s sentencing
determination was heavily influenced by its belief” that Gosney committed
the January 2019 DUI “just 26 days after being released from prison for a
prior DUI conviction.” He alleges this was incorrect because Gosney was
physically released from prison on October 6, 2017, even though he did not
complete community supervision until January 4, 2019. We disagree.

¶11 Gosney is correct that “due process rights are violated when
a sentence is imposed based on materially untrue” information. See State v.
Grier, 146 Ariz. 511, 515 (1985) (recognizing a due process right to be
sentenced on accurate information and holding that sentences based in part
on false information must be set aside (citing United States v. Tucker, 404 U.S.
443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948))).

¶12 But the court did not rely on untrue information when
sentencing Gosney. The court explicitly acknowledged that DOC
physically released Gosney from prison before January 4, 2019, stating “I
will consider that you were perhaps physically released from the
Department of Corrections in 2017, but you were on community
supervision until January 4th, 2019[.]”

¶13 The court’s summary is well supported by the DOC records
presented at sentencing, showing Gosney completed community
supervision on that date. Because community supervision was part of
Gosney’s prior sentence, the DOC did not discharge him until he completed
community supervision. See A.R.S. § 13-105(5) (defining community
supervision as a “portion of a felony sentence”). Nothing barred the court

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 STATE v. GOSNEY
Decision of the Court

from basing Gosney’s sentence, in part, on the 26-day gap between
Gosney’s release from DOC supervision on January 4 and his new offense
on January 30. Because there was no factual error in the grounds for his
sentence, the sentence did not violate Gosney’s rights to due process. The
court did not abuse its discretion by imposing an aggravated sentence.

CONCLUSION

¶14 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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