Opinion
2 CA-CR 2012-0166
01-14-2013
THE STATE OF ARIZONA, Appellee, v. PIERRE MANTANO HOLNESS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Joseph L. Parkhurst Attorneys for Appellee Law Offices of Cornelia Wallis Honchar, P.C. By Cornelia Wallis Honchar Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20101808001
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Joseph L. Parkhurst
Attorneys for Appellee
Tucson
Law Offices of Cornelia Wallis Honchar, P.C.
By Cornelia Wallis Honchar
Attorney for Appellant
Tucson
ECKERSTROM, Presiding Judge. ¶1 Appellant Pierre Holness was convicted after a jury trial held in his absence of two counts each of aggravated robbery and aggravated assault with a deadly weapon or dangerous instrument, and one count each of armed robbery and robbery. The jury additionally found all but the robbery charge to be dangerous offenses. After he was returned to custody, the trial court sentenced him to concurrent, presumptive prison terms for each offense, the longest of which was 10.5 years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating she has reviewed the record but found "[n]o arguable question of law" to raise on appeal. Holness has not filed a supplemental brief. ¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In May 2010, Holness and one other person entered an apartment; Holness threatened the apartment's lone occupant with a gun and struck him twice. The men searched the apartment and took several items. A few days later, Holness and one other individual entered a second apartment and one of them held the occupant at gunpoint while the other ransacked the apartment; the men left with several items. This evidence is sufficient to support the jury's verdicts. See A.R.S. §§ 13-105(13), 13-1203(A), 13-1204(A)(2), 13-1902(A), 13-1903(A), 13-1904(A). ¶3 In our review of the record pursuant to Anders, we identified an issue arguably constituting fundamental error and ordered the parties to file supplemental briefs addressing whether Holness's sentence for robbery as a dangerous, nonrepetitive offense is fundamental, prejudicial error. Because Holness did not raise this issue below despite having had the opportunity to do so, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); cf. State v. Vermuele, 226 Ariz. 399, ¶ 14, 249 P.3d 1099, 1103 (App. 2011) (noting limited exception to fundamental-error review when "alleged errors . . . did not become apparent until the trial court pronounced sentence"). But, in any event, imposition of an illegal sentence is fundamental, prejudicial error. State v. McPherson, 228 Ariz. 557, ¶ 4, 269 P.3d 1181, 1183 (App. 2012). ¶4 For Holness's robbery conviction, the trial court stated it was a "dangerous, nonrepetitive offense" and sentenced Holness to a six-year prison term pursuant to A.R.S. § 13-704(A). We agree with Holness that there was no basis for the trial court to sentence him pursuant to that statute because the jury found Holness guilty of robbery as a lesser-included offense and acquitted him of armed robbery as well as the dangerous-nature allegation for armed robbery. See § 13-704(L) (enhanced sentence permitted only "if an allegation of dangerous offense is charged in the indictment or information and admitted or found by the trier of fact"). Nor is dangerousness reflected in the verdict because the crime of robbery does not necessarily entail "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." § 13-105(13); see also § 13-1902(A); cf. State v. Gatliff, 209 Ariz. 362, ¶ 12, 102 P.3d 981, 983 (App. 2004) (dangerousness may be "inherent in a conviction" and permit enhanced sentence). The state concedes error. ¶5 Holness's remaining sentences were within the prescribed statutory range and imposed lawfully. See §§ 13-704(A), 13-1204(D), 13-1903(B), 13-1904(B). Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none save the sentencing error discussed above. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (interpreting Anders to require appellate court to search record for fundamental error). Accordingly, for the reasons stated, we vacate Holness's sentence for robbery and remand the case to the trial court for resentencing on that count. We otherwise affirm Holness's convictions and sentences.
Throughout this decision we cite the current versions of the statutes referred to, as their material provisions have not changed since the dates of the offenses.
______________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: _______________
GARYE L. VÁSQUEZ, Judge
_______________
VIRGINIA C. KELLY, Judge