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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TIMOTHY WHITE,
Appellant.
No. 1 CA-CR 21-0519
FILED 12-01-2022
Appeal from the Superior Court in Navajo County
No. S0900CR201900439
The Honorable Dale P. Nielson, Judge
VACATED IN PART, AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Weagant Law Offices, PLC, Florence
By Megan Weagant
Counsel for Appellant
STATE v. WHITE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Brian Y. Furuya and Judge Jennifer M. Perkins joined.
W E I N Z W E I G, Judge:
¶1 Timothy White appeals his convictions and sentences for
transportation and possession of a dangerous drug for sale. White’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297 (1969), avowing that she searched the
record and found no non-frivolous issues for appeal. White filed a
supplemental pro se brief. Finding a double jeopardy violation, we vacate
White’s conviction and sentence for possession of a dangerous drug for
sale. We affirm the rest.
FACTS AND PROCEDURAL BACKGROUND
¶2 A police officer observed a maroon vehicle driving on I-40 in
May 2019, and determined that its registration had expired. The officer
activated his siren and overhead lights to conduct a traffic stop. He then
noticed “almost frantic[]” movement in the vehicle’s back seat.
¶3 After the vehicle stopped, the officer told the driver that the
vehicle’s registration had expired in 2013, but the driver pointed to a
temporary tag on the inside rear window. By that time, the officer had
noticed a package on the rear passenger floorboard, which resembled a
package of drugs. White was in the backseat in a “fairly awkward” pose,
extending one leg as though trying to hide the package. Socks and other
garments had also been placed to hide the package. The officer then spotted
a second package between the driver’s seat and door frame. Both the driver
and White were detained. Lab results confirmed the packages held about
three ounces of methamphetamine.
¶4 White was charged with two felonies: transportation of a
dangerous drug for sale, and possession of a dangerous drug for sale.
Before trial, defense counsel moved unsuccessfully to suppress evidence
recovered in the vehicle. At trial, the superior court instructed the jury that
possession of a dangerous drug for sale was the lesser-included offense to
transportation of a dangerous drug for sale. White was convicted of
transportation of a dangerous drug.
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STATE v. WHITE
Decision of the Court
¶5 At the sentencing hearing, the superior court orally advised
White he had been convicted of a single felony—transportation of a
dangerous drug—and imposed a slightly mitigated prison sentence of eight
years. But the court’s minute entry found White guilty of “possession of a
dangerous drug for sale,” and imposed an additional eight-year prison
sentence to run concurrently with the first. White timely appealed, and we
have jurisdiction. See Ariz. Const., art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-
4031 and -4033(A)(1).
DISCUSSION
¶6 White’s counsel avowed that she saw no meritorious issues
for appeal, but we find reversible error after independently reviewing the
record. See Leon, 104 Ariz. at 300.
¶7 Aside from a written error described below, the record
reflects that the superior court afforded White all his constitutional and
statutory rights, and the proceedings were conducted in accordance with
the rules of criminal procedure. White was represented by counsel at all
critical stages of the proceedings, and he had notice of the proceedings.
White did not appear for his jury trial. The court conducted appropriate
pretrial hearings, and the evidence presented at trial and summarized
above was enough to support a guilty verdict on the charge for
transportation of a dangerous drug. White’s sentence for transportation of
a dangerous drug fell within the range prescribed by law.
I. Double Jeopardy
¶8 In its sentencing order, however, the superior court
erroneously stated that White had been found guilty of both transportation
and possession of a dangerous drug for sale. The court then sentenced
White to eight additional years in prison on the possession count, to be
served concurrently. That was error. The jury did not convict White of the
felony charge of possession. Indeed, the court instructed the jury to leave
the possession box blank if they found White guilty of transportation
because possession is a lesser-included offense of transportation. See State
v. Cheramie, 218 Ariz. 447, 448, ¶ 9 (2008) (“To constitute a lesser-included
offense, the offense must be composed solely of some but not all of the
elements of the greater crime so that it is impossible to have committed the
crime charged without having committed the lesser one.”).
¶9 The written order also conflicts with the superior court’s oral
pronouncement at the sentencing hearing, which properly advised White
that he was only found guilty of the transportation count. “When a
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STATE v. WHITE
Decision of the Court
discrepancy between the trial court’s oral pronouncement of a sentence and
the written minute entry can be clearly resolved by looking at the record,
the oral pronouncement in open court controls over the minute
entry.” State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) (cleaned up). As a
result, we vacate White’s conviction and sentence for possession of a
dangerous drug for sale, the lesser-included offense.
II. White’s Arguments
¶10 White filed a pro se supplemental brief, arguing ineffective
assistance of counsel. But “ineffective assistance of counsel claims are to be
brought in Rule 32 proceedings,” and “will not be addressed by appellate
courts [on direct appeal,] regardless of merit.” State v. Spreitz, 202 Ariz. 1,
3, ¶ 9 (2002).
¶11 White also argues the superior court erroneously denied his
motion to suppress, which we review “for [an] abuse of discretion if it
involves a discretionary issue.” State v. Gay, 214 Ariz. 214, 217, ¶ 4 (App.
2007) (citation omitted). We consider only the evidence presented at the
suppression hearing, viewing it in the light most favorable to sustaining the
trial court’s ruling, id., while “accord[ing] deference to a trained law
enforcement officer’s ability to distinguish between innocent and
suspicious actions,” State v. Majalca, 251 Ariz. 325, 331, ¶ 20 (App. 2021).
¶12 We discern no error. The officer had reasonable suspicion to
stop the vehicle based on expired registration. The officer then saw the
suspicious package in plain view, which was located near White. The
package and White’s attempts to conceal it led the officer to reasonably
suspect a drug-related offense. See State v. Teagle, 217 Ariz. 17, 23, ¶ 22
(App. 2007) (prolonged traffic stop justified even after the driver shows
valid registration if, during the stop, the officer gains a “reasonable and
articulable suspicion” that criminal activity is afoot) (citation omitted); State
v. Sumter, 24 Ariz. App. 131, 135 (1975) (extended vehicle search justified
when, in addition to other factors, officer saw fresh thumbprints on a dusty
car trunk and the suspect acted suspiciously and evasively).
CONCLUSION
¶13 We affirm White’s conviction and sentence for transportation
of a dangerous substance (count one), but vacate his conviction and
sentence for possession of a dangerous drug for sale (count two), and direct
the superior court to correct its sentencing order. See Ariz. R. Crim. P.
31.19(c); Ovante, 231 Ariz. at 188, ¶ 38 (“This Court can order the minute
entry corrected if the record clearly identifies the intended sentence.”).
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STATE v. WHITE
Decision of the Court
¶14 Defense counsel’s obligations in this appeal will end once
counsel informs White of the outcome and his future options, unless
counsel finds an issue appropriate for the Arizona Supreme Court’s review.
See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court’s own motion,
White has 30 days from the date of this decision to proceed with a pro se
motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: JT
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