State v. Drew

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENT DREW, Appellant.

No. 1 CA-CR 14-0451
FILED 9-10-2015

Appeal from the Superior Court in Maricopa County
No. CR 2013-105422-001
The Honorable Jeanne M. Garcia, Judge

CONVICTIONS AFFIRMED; SENTENCE MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
 STATE v. DREW
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.

D O W N I E, Judge:

¶1 Kent Drew timely appeals his convictions for armed
robbery, aggravated assault, and misconduct involving weapons in
violation of Arizona Revised Statutes (“A.R.S.”) sections 13-1203(A)(1), -
1204(A)(2), -1902, -1904, and -3102(A)(4). Pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969),
Drew’s counsel searched the record, found no arguable question of law,
and asked that we review the record for reversible error. See State v.
Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Drew was
given the opportunity to file a supplemental brief in propria persona; he has
not done so. For the following reasons, we affirm Drew’s convictions but
modify his sentence to reflect entitlement to 171 days of presentence
incarceration credit rather than 170 days.

FACTS AND PROCEDURAL HISTORY1

¶2 A.F. bought smart phones from Drew on several occasions.
On September 15, 2012, Drew called to say that he had 20–30 phones to
sell. The men met in Drew’s car in the parking lot of A.F.’s apartment
complex and discussed the available phones and what A.F. was willing to
pay. A.F. gave Drew cash, but when A.F. reached in the backseat to “grab
the bag with the phones in it,” Drew ordered him out of the car. Drew
also pulled out a gun. A.F. said, “Are you really about to rob me, are you
serious.” Drew responded, “You know what time it is.”2 A.F. lunged at
Drew and attempted to redirect the gun. During the altercation, A.F. was
shot in the calf and foot.

1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Nihiser, 191
Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).
2 A.F. testified that in “street lingo,” Drew’s statement basically
meant “I’m about to rob you.”

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Decision of the Court

¶3 The State charged Drew with armed robbery, aggravated
assault, and misconduct involving weapons. A jury trial ensued. At the
conclusion of the State’s case-in-chief, Drew moved for a judgment of
acquittal pursuant to Arizona Rules of Criminal Procedure, Rule 20. The
court denied the motion. The jury returned a guilty verdict on all charges.
Drew asked to be remanded into custody immediately following the
verdict and waived his right to be present during the aggravation hearing.

¶4 At the aggravation hearing, the jury found that the State had
proven the following aggravating factors for the armed robbery and
aggravated assault counts: (1) the offenses involved the infliction or
threatened infliction of serious physical injury; (2) the offenses caused
physical, emotional, or financial harm to the victim; (3) the counts were
dangerous offenses, meaning an offense involving the discharge, use, or
threatening exhibition of a deadly weapon or dangerous instrument or the
intentional or knowingly infliction of serious physical injury on another
person; (4) Drew committed the offenses as consideration for the receipt
or in the expectation of the receipt of anything of pecuniary value; and (5)
Drew was previously convicted of a felony within the ten years
immediately preceding the date of the offense.3 The jury found the fifth
aggravating factor also applied to the misconduct involving weapons
offense.

¶5 At sentencing, the court found several mitigating factors, but
determined the aggravating factors tended to outweigh them. It also
found Drew had been convicted of five prior felony offenses. The court
thus imposed sentences greater than the presumptive: twelve years for
armed robbery; nine years for aggravated assault; and six years for
misconduct involving weapons. Each sentence was to run concurrently.
The court awarded Drew 170 days of presentence incarceration credit.

DISCUSSION

¶6 We have read and considered the brief submitted by Drew’s
counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451

3 Under A.R.S. § 13-701(D)(11), it is the trial court’s role — not the
jury’s — to find an aggravating circumstance of a prior felony conviction
within ten years. The error was not prejudicial or fundamental here,
however, as the State introduced a certified affidavit establishing the
conviction and Drew admitted to another qualifying conviction at
sentencing.

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P.2d at 881. With the exception of presentence incarceration credit, we
find no reversible error. All of the proceedings were conducted in
compliance with the Rules of Criminal Procedure, and the sentences
imposed were within the statutory range. Drew was present at all critical
phases of the proceedings and represented by counsel. The jury was
properly impaneled and instructed. The jury instructions were consistent
with the offenses charged. The record reflects no irregularity in the
deliberation process.

I. Batson Challenge

¶7 During jury selection, Drew raised a Batson challenge after
the State struck Juror 3 — the only potential juror who was black.4 See
Batson v. Kentucky, 476 U.S. 79, 80 (1986) (“Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely on account of their race .
. . .”). The trial court rejected the challenge.

¶8 We employ a three-step process in determining whether a
peremptory strike violates Batson: (1) the opposing party must make a
prima facie showing of discrimination; (2) the proponent must offer a race-
neutral basis for the strike; and (3) the opponent must persuade the court
that the proffered reason is a pretext and the strike was “actually based on
race.” State v. Lucas, 199 Ariz. 366, 368, ¶ 7, 18 P.3d 160, 162 (App. 2001).
When considering a Batson challenge, we defer to the trial court's findings
of fact unless clearly erroneous, but we review the court's application of
the law de novo. Lucas, 199 Ariz. at 368, ¶ 6, 18 P.3d at 162. To rebut a
prima facie showing of discrimination, the State must give “a clear and
reasonably specific explanation” of its “legitimate reasons” for exercising
a peremptory strike. Purkett v. Elem, 514 U.S. 765, 768 (1995).

¶9 The prosecutor offered the following explanation for striking
Juror 3:

I struck number 3 for multiple reasons. One, I’m concerned
for his kids, his six and four year old who he has no one to
pick up after school. He repeatedly said he doesn't have

4 Drew also moved to strike the entire jury panel because the pool of
sixty included only one black member. He did not argue or show,
however, “that the disparity [was] a result of systematic exclusion in the
jury selection process.” Randolph v. People of the State of Cal., 380 F.3d 1133,
1140 (9th Cir. 2004); see Duren v. Missouri, 439 U.S. 357, 364 (1979).

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anyone to pick them up and CPS would be called if he didn't
pick them up he said by 2:45 or 3:00 p.m. The other reasons
include he has lots of family members in the Department of
Corrections. His wife works for a criminal defense firm. He
doesn't know which one. He says he talks to her a lot about
what she does presumably criminal defense work. The state
did not strike him based on race. The reasons we struck him
is mainly because he doesn't have any one to pick up his
kids. I think that's going to be distracting to him.

Drew did not offer any reasons why the State’s explanation was
pretextual. The trial court thus appropriately rejected the Batson
challenge. See State v. Newell, 212 Ariz. 389, 401, ¶ 54, 132 P.3d 833, 845
(2006) (the State meets its burden by offering a “facially valid explanation”
for the challenge).

II. Rule 20 Motion

¶10 A judgment of acquittal is appropriate only when there is
“no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
Substantial evidence is such proof that “reasonable persons could accept
as adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d
866, 869 (1990). “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to
support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d
610, 624 (1996).

¶11 A.F. testified that Drew took several thousand dollars in
cash from him at gunpoint and that he was shot in the resulting struggle.
Drew’s ex-girlfriend testified that Drew told her he robbed A.F. and shot
him. A police officer and two apartment managers testified about the
content of a surveillance video overlooking the parking lot where the men
met.5 Their testimony corroborated A.F.’s version of events. The State
also introduced an affidavit certified by the clerk of the Maricopa County

5 Apartment management promised to give officers a copy of the
footage but never did so, and the content was deleted. Based on the
unavailability of the video, the trial court gave a Willits instruction to the
jury. See State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964)
(adverse-inference jury instruction appropriate when the State loses or
destroys evidence that could have been useful to a defense).

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Superior Court establishing that Drew had a prior conviction and had not
had his right to carry a gun reinstated.

¶12 Based on the foregoing, the State presented substantial
evidence that Drew was guilty of: (1) armed robbery by forcefully using a
deadly weapon with the intent to coerce A.F. to surrender cash from his
person and against his will, see A.R.S. §§ 13-1902, -1904; (2) aggravated
assault, because Drew was at least reckless when he physically injured
A.F. with a deadly weapon, see A.R.S. §§ 13-1203(A)(1), -1204(A)(2); and
(3) misconduct involving weapons, because Drew knowingly possessed a
gun while he was a prohibited possessor, see A.R.S. § 13-3102(A)(4).

III. Presentence Incarceration Credit

¶13 “All time actually spent in custody pursuant to an offense
until the prisoner is sentenced to imprisonment for such offense shall be
credited against the term of imprisonment.” A.R.S. § 13–712(B). When
calculating presentence incarceration credit, a defendant is entitled to a
full day of credit for any partial day spent in custody. State v. Carnegie,
174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). When the date sentence
is imposed serves as the first day of a defendant’s sentence under A.R.S. §
13-712(A) that date does not also count for presentence credit under A.R.S.
§ 13-712(B). See State v. Lopez, 153 Ariz. 285, 285, 736 P.2d 369, 369 (1987)
(interpreting A.R.S. § 13-709, which is now A.R.S. § 13-712). Applying
these standards, Drew was entitled to 171 days of presentence
incarceration credit.

¶14 Presentence incarceration credit under A.R.S. § 13–712(B) is
mandatory and the sentencing court has no discretion in the matter. See
State v. Williams, 128 Ariz. 415, 416, 626 P.2d 145, 146 (App. 1981). A
sentence that does not comply with a mandatory sentencing statute is
illegal. State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App.
2007). Because our calculation reveals Drew was entitled to 171 days of
presentence incarceration credit, not 170, we modify the sentencing order
to so reflect.

CONCLUSION

¶15 We affirm Drew’s conviction but modify his sentence to
award him 171 days of presentence incarceration credit. Counsel’s
obligations pertaining to Drew’s representation in this appeal have ended.
Counsel need do nothing more than inform Drew of the status of the
appeal and his future options, unless counsel’s review reveals an issue
appropriate for submission to the Arizona Supreme Court by petition for

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review. State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57
(1984). On the court’s own motion, Drew shall have thirty days from the
date of this decision to proceed, if he desires, with an in propria persona
motion for reconsideration or petition for review.

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