State v. Whitebird

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

SHELDON JOHN WHITEBIRD, Petitioner.

No. 1 CA-CR 25-0275 PRPC
FILED 12-10-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2022-001885-001
The Honorable Suzanne M. Nicholls, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith C. Klepper
Counsel for Respondent

Law Office of Stephen M. Johnson, Phoenix
By Stephen M. Johnson
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Sheldon John Whitebird seeks review of the superior court’s
dismissal of his post-conviction relief (“PCR”) petition filed under Arizona
Rule of Criminal Procedure (“Rule”) 33.1. We grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In April 2021, while intoxicated, Whitebird drove his truck
onto a sidewalk in Tempe, where three people were standing, striking two
and endangering the third. Whitebird fled the scene of the accident. A
grand jury indicted Whitebird on one count of leaving the scene of a serious
injury accident, a class 2 felony; endangerment, a class 6 dangerous felony;
two counts of aggravated assault, a class 3 dangerous felony; and four
counts of aggravated driving while under the influence of intoxicating
liquor or drugs, a class 4 felony.

¶3 Whitebird entered into a plea agreement in which he pled
guilty to one count of leaving the scene of a serious injury accident and one
count of aggravated assault, with the remaining counts dismissed with
prejudice.

¶4 The State filed its sentencing memorandum the morning of
the sentencing hearing, which recommended that Whitebird receive the
maximum sentence for Count 2, fifteen years. It also recommended that the
court suspend Whitebird’s sentence on Count 1 and place him on five years
of supervised probation. The State alleged three aggravating factors under
Arizona Revised Statutes (“A.R.S.”) § 13-701(D) and listed several more
under the catch-all aggravating factor of A.R.S. § 13-701(D)(27). At the
sentencing hearing, one of the victims and his family read statements
detailing the serious and life-threatening physical injuries as well as the
emotional impacts from the accident. The State again recommended that
Whitebird receive the statutory maximum for Count 2 and probation for
Count 1.

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¶5 Whitebird presented several mitigating factors during the
sentencing hearing. The superior court, noting it had considered those
factors along with several aggravating factors, sentenced Whitebird to
fifteen years for Count 2, the maximum under A.R.S. § 13-704(A), and five
years of supervised probation for Count 1.

¶6 Whitebird petitioned for PCR, claiming the imposed sentence
was unlawful, but the superior court summarily denied the petition.
Whitebird sought review, and we have jurisdiction under A.R.S. §§ 13-4031
and -4239 and Rule 33.16.

DISCUSSION

¶7 “This court will not disturb a superior court’s ruling on a
petition for [PCR] absent an abuse of discretion.” State v. Reed, 252 Ariz. 236,
238, ¶ 6 (App. 2021). But we review the superior court’s legal conclusions
de novo, and the petitioner bears the burden of proving the superior court
abused its discretion by denying the PCR petition. Id.

¶8 On review, Whitebird alleges four errors about his
sentencing: (1) the court failed to give him adequate notice of its intent to
impose the maximum sentence; (2) the court failed to weigh mitigating
evidence adequately; (3) the court failed to exclude inflammatory victim
statements; and (4) the court did not impose a sentence in accordance with
the reasonable expectations created by the plea negotiations. We review
each claim in turn.

A. Whitebird Waived Any Right to Notice of a Potential Aggravated
Sentence.

¶9 Whitebird claims the court failed to give him notice of its
intent to impose the maximum sentence for Count 2. The court sentenced
Whitebird under A.R.S. § 13-704 as a first-time dangerous offender.

¶10 For a first-time non-dangerous offender, A.R.S. § 13-702(E)
requires a court to “inform all of the parties before sentencing occurs of its
intent to increase or decrease a sentence to the aggravated or mitigated
sentence.” But A.R.S. § 13-702(E) also states that a party who fails to object
at the time of sentencing waives the right to be so informed. For dangerous
offenders under A.R.S. § 13-704, only subsection F (applicable to
convictions of two or more dangerous offenses) has a similar notice
requirement. There is no statutory notice requirement for the other types of
dangerous offenders. Whitebird’s conviction did not invoke the statutory

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notice requirement. And even if it did, Whitebird’s failure to object during
the sentencing hearing waived the right to raise the claim.

¶11 Whitebird argues that even if such a waiver occurs, due
process still requires fair notice, and that the State’s filing of its sentencing
memorandum the morning of his sentencing “compounded this
unfairness.” Whitebird’s reliance on State v. Schmidt, for this argument is
mistaken because Schmidt held only that the use of a “catch-all” aggravator
under A.R.S. § 13-701(D)(27) “as the sole factor to increase a defendant’s
statutory maximum sentence” violates due process. 220 Ariz. 563, 566, ¶ 10
(2009). Whitebird does not allege in his petition, nor does the transcript
support, that the superior court sentenced him to the maximum sentence
based on a “catch-all” aggravator alone.

¶12 Whitebird pled guilty to a dangerous offense, and his plea
agreement advised him of the statutory maximum for that offense. See Rule
17.2. Despite receiving the State’s memorandum the morning of sentencing,
he presented mitigating evidence during the sentencing hearing, which the
court expressly considered. Whitebird fails to explain what other evidence
he would have presented at sentencing with more notice. We find no
prejudice in any alleged improper notice of the State’s sentencing
recommendation. See State v. Bocharski, 218 Ariz. 476, 482, ¶ 12 (2008) (“We
review a failure to provide timely notice of aggravating circumstances for
prejudice.”).

B. The Court Properly Considered Whitebird’s Mitigating Evidence.

¶13 Whitebird claims that, despite the presence of mitigating
factors, the court imposed the maximum sentence without explaining how
it weighed them. During sentencing, the superior court explicitly listed the
mitigating and aggravating evidence it considered. Then it stated that the
court found the aggravating circumstances “sufficiently substantial to
warrant a maximum sentence” for Count 2.

¶14 The superior court has discretion over the weight to be given
to any presented mitigating factor. It need not find mitigating
circumstances or explain how it weighed the factors presented. State v.
Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003). Here, the superior court
explained it considered “all the mitigating and aggravating factors,” and
that by sentencing Whitebird to the maximum, it was not “completely
devaluing any mitigation.” Thus, we conclude the court properly
considered the mitigation evidence. See id.

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C. Whitebird Fails to Show the Victims’ Statements Unduly
Influenced the Court.

¶15 Whitebird asserts that the victims’ statements during
sentencing were extensive and “emotionally charged” and thereby unduly
influenced the court to impose the maximum term.

¶16 Victims have the right to make statements during sentencing
that inform the sentencer of the specific harm caused by the crime. State v.
Bush, 244 Ariz. 575, 594, ¶ 80 (2018). Whitebird asserts that while victim
impact statements are admissible, they cannot be so unduly prejudicial that
the trial is unfair. See Bocharski, 218 Ariz. at 488, ¶ 51. But “[w]hen victim
impact evidence is offered, we have generally assumed that the sentencing
judge is capable of focusing on the relevant factors and setting aside the
irrelevant, inflammatory, and emotional factors, absent evidence to the
contrary.” State v. Spears, 184 Ariz. 277, 292 (1996). Here, aside from
characterizing the victims’ statements as emotionally charged, Whitebird
fails to show how those statements unduly influenced the court. We decern
no error.

D. The Sentence Was Within the Statutory Limits, Consistent with
the Plea Agreement, and Did Not Violate Reasonable Expectations.

¶17 Whitebird claims that imposing the maximum sentence for
Count 2 violated Whitebird’s reasonable expectations for his sentence based
on the plea agreement negotiations. Whitebird argues that he had a
reasonable expectation of receiving a sentence of 7.5 to 10 years for Count
two, based on the discussions surrounding the plea deal.

¶18 “The terms of plea agreements must be meticulously adhered
to, and [the defendant’s] reasonable expectations under the agreement
should be accorded deference.” State v. Rosenbaum, 123 Ariz. 551, 553 (App.
1979). A violation occurs not only when the State directly breaks its promise
in a plea agreement, “but also when the spirit of the inducement, reasonably
inferred from the written agreement, is breached.” State v. Ross, 166 Ariz.
579, 583 (App. 1990) (quotation omitted).

¶19 Here, the plea agreement required Whitebird to plead guilty
to Count 1, leaving the scene of a serious injury accident, and Count 2,
aggravated assault. The agreement informed Whitebird that count two
carried a maximum sentence of fifteen years. The court sentenced
Whitebird to 15 years for Count 2 and placed him on probation for Count
1. These sentences fall within the statutory limits and the terms of the plea

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agreement, and the superior court gave due consideration to all the
evidence presented at sentencing. See Cazares, 205 Ariz. at 427, ¶ 6.

¶20 Whitebird relies on these statements by the prosecutor to
assert his reasonable-expectation claim.

So I can’t make any promises as far as what that plea
will look like. What I can tell you is that I don’t see the plea
offer being less than the trial exposure, so I don’t see - I see us
asking you to plea guilty to what potentially could be what
you get at trial, but with that being said as well, I recognize
that, you know, this would be a trial that’s traumatic for
essentially everyone involved, and I’d like to avoid that if we
can.
So my plea offer thought process at this point is,
because Mr. Crawford told me that it might be helpful for you
and for your family to start hearing some numbers of what
some potential possibilities, I think that a plea offer is
probably going to be somewhere around 7-1/2, 10 years. That
would probably be likely is that it’s going to be significant,
and it’s going to require also probably probation after you
come out of custody to keep you monitored while you’re out
of custody.
But the plea offer is not going to be essentially less than
what you could get after trial, so it’s just more minimizing of
what the Court has available to them and how much that they
could sentence you to. That’s essentially what I think our offer
will be, but I can’t promise anything without talking with the
other victims first.
The State made no promises about its plea offer or its sentencing
recommendation if Whitebird accepted the ultimate plea agreement.
Whitebird did not get a plea offer of seven and a half to ten years, and any
reliance by him on the prosecutor’s statements during the settlement
conference was not reasonable.

¶21 The superior court acted within its discretion by finding
substantial aggravating evidence to warrant imposing the maximum
sentence under the statute. See Cazares, 205 Ariz. 426–27, ¶¶ 5–9. Whitebird
failed to make a colorable claim.

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CONCLUSION

¶22 We grant review but deny relief.

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

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