                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     BRIAN KEITH SUTTON, Appellant.

                             No. 1 CA-CR 13-0376
                              FILED 07-24-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-123695-001
                The Honorable John R. Ditsworth, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant

Brian Keith Sutton, Tucson
Appellant
                             STATE v. SUTTON
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1            Brian Keith Sutton appeals his convictions of burglary in the
third degree (a class 4 felony) and possession of burglary tools (a class 6
felony), and the resulting sentences. Sutton’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of
the record, he found no arguable question of law that was not frivolous.
Counsel asks this court to search the record for reversible error. See State v.
Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).

¶2             Sutton filed a supplemental brief in which he argues that (1)
he was denied due process because of ineffective assistance of counsel, (2)
the evidence was insufficient to support his convictions, and (3) the trial
court erred by improperly enhancing his sentence and by not considering
mitigating factors. Having reviewed the record and having considered the
issues raised in Sutton’s supplemental brief, we affirm his convictions. We
also affirm Sutton’s sentences as modified, vacating only the portion of the
sentencing order requiring him to pay for DNA testing.

             FACTS AND PROCEDURAL BACKGROUND

¶3            The relevant facts, viewed in the light most favorable to
upholding the jury’s verdicts, are as follows. During a routine patrol of an
apartment complex in Glendale late in the evening on May 4, 2012, security
guards saw Sutton using a head-mounted flashlight manipulating the wires
in a cable box attached to one of the buildings. One of the security guards
recognized Sutton as the person he had seen tampering with a cable box
two weeks earlier on April 21, 2012, at the same apartment complex, but
had been unable to apprehend.

¶4            The security guards detained Sutton, who explained that he
had worked as a subcontractor for a cable company 25 years earlier, and
that he was attempting to fix the signal at the request of a friend who lived
in the complex. Sutton had wire cutters in one of his hands. The security



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                           Decision of the Court

guards were unable to verify Sutton’s story, and they handcuffed Sutton
and called the Glendale Police Department.

¶5            When Glendale Police Officer Durham arrived at the scene,
he saw Sutton handcuffed and sitting on a curb. At the cable box, Officer
Durham saw three cut cable ends, a cable splitter and cable end lying in the
bottom of the cable box, and a coaxial cable end lying on the ground below
the box. In addition to wire cutters, Officer Durham found five coaxial cable
ends, a box cutter (missing a blade), and two flashlights (one of which was
on Sutton’s head).

¶6            After having been read his Miranda1 rights, Sutton told Officer
Durham that he was trying to fix the cable signal for a friend who lived in
the complex and that the cut coaxial cable found in front of the cable box
was his, but that he had found it while “dumpster diving” at a nearby
electronics store. Sutton denied involvement in the incident that had
occurred two weeks earlier.

¶7            After being read his Miranda rights a second time at the police
station, Sutton stated that (1) the cable box was open when he got there, (2)
he had not manipulated the cable boxes, and (3) he did not take any cables
out of the cable box.

¶8            The next morning, a criminal investigator for the cable
company inspected the cable box and noticed that the cover to the box had
been broken off and physically removed. Additionally, someone had
tampered with several of the cables that connected to apartments, had cut
the ends of the cable connections, had pulled out the wires, and had broken
off some of the ends of the connection places.

¶9             Sutton was charged with burglary in the third degree and
aggravated criminal damage stemming from the April 21, 2012 incident as
well as burglary in the third degree, aggravated criminal damage, and
possession of burglary tools stemming from the May 4, 2012 incident. After
the close of the State’s case in chief, the court granted a defense motion for
judgment of acquittal and dismissed the April 21 criminal damage charge.
The jury found Sutton guilty of the May 4 third-degree burglary and
possession of burglary tools, but not guilty of the remaining counts. Sutton
admitted to two prior felony convictions. The court sentenced Sutton as a
repetitive offender to a mitigated term of six years for third-degree burglary


1      Miranda v. Arizona, 384 U.S. 436 (1966).



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                            Decision of the Court

and a presumptive term of 3.75 years for possession of burglary tools to be
served concurrently, with 364 days’ presentence incarceration credit.2

¶10            Sutton timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033.3

                               DISCUSSION

¶11            Sutton was represented by counsel and was present at all
stages of the proceedings, except for a brief portion of trial day two and trial
day five, for which counsel waived Sutton’s presence. The record reflects
that the superior court afforded Sutton his rights under the federal and state
constitutions, and that the proceedings were conducted in accordance with
Arizona statutes and the Arizona Rules of Criminal Procedure. The court
conducted appropriate pretrial hearings, and the evidence presented at trial
and summarized above was sufficient to support the jury’s verdicts.4
Finally, Sutton’s sentences fall within the range prescribed by law, with
proper credit given for presentence incarceration.

¶12            Sutton argues he was denied due process because of
ineffective assistance of counsel. An ineffective assistance claim may not be
reviewed on direct appeal, and we therefore do not address this argument,


2       The court orally sentenced Sutton to “a presumptive term of three
years” as to the burglary tools conviction. In contrast, the sentencing
minute entry reflects a “[p]resumptive” term of “3.75 year(s).” Despite this
discrepancy between the oral pronouncement of sentence and the written
minute entry, the record clearly reflects that the court intended to sentence
Sutton to a presumptive term of imprisonment: 3.75 years for a class 6
felony committed by a category three repetitive offender. See Ariz. Rev.
Stat. (“A.R.S.”) § 13-703(J). Because this discrepancy is readily resolved by
reference to the record, we need not remand for clarification. See State v.
Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992).
3       Absent material revisions after the relevant date, we cite the current
version of the statute.
4       Although Sutton argues that the jury was given an erroneous jury
instruction as to burglary in the third degree because the apartment
complex was not a nonresidential structure, his argument is misplaced; the
term “nonresidential structure” in the instruction relates to the cable box
and not the apartment complex. See A.R.S. § 13-1501(10) (defining a
nonresidential structure as “any structure other than a residential structure
and includes a retail establishment”).


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                             STATE v. SUTTON
                            Decision of the Court

without prejudice to Sutton pursuing it in a proceeding under Arizona Rule
of Criminal Procedure 32. See State ex rel. Thomas v. Rayes, 214 Ariz. 411,
415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39
P.3d 525, 527 (2002).

¶13           Sutton contends the court erred by sentencing him as a
category three, rather than a category one, repetitive offender. He argues
that because the two prior felony convictions he admitted at trial were
committed more than five years before the instant offenses, they do not
qualify as historical prior felony convictions under A.R.S. § 13-105(22)(c)
(“Any class 4, 5 or 6 felony . . . that was committed within the five years
immediately preceding the date of the present offense.”). But, because
Sutton’s 2006 felony convictions were his fourth and fifth felony
convictions, they qualified as historical priors under § 13-105(22)(d) (“Any
felony conviction that is a third or more prior felony conviction.”). Thus,
the court properly sentenced Sutton as a category three repetitive offender
with two or more historical priors. See A.R.S. § 13-703(C).

¶14           Sutton also argues that the court erred by not considering in
mitigation the support he was receiving from family and friends. Although
there appeared to be initial confusion over whether the court had received
mitigation information from Sutton’s counsel, the record reflects that the
court received and considered the information. The court weighed the
mitigating factors of minimal economic loss, defendant’s remorse, and
family support against the fact that Sutton had been convicted of his sixth
and seventh felonies. Moreover, the court sentenced Sutton to a mitigated
term for burglary in the third degree, which further demonstrates
consideration of Sutton’s proffered mitigation evidence.

¶15            At sentencing, the superior court ordered, pursuant to A.R.S.
§ 13-610, that Sutton “submit to DNA testing for law enforcement
identification purposes and pay the applicable fee for the cost of that
testing.” In State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App.
2013), this court held that A.R.S. § 13-610 does not authorize the sentencing
court to require the convicted person to pay for his DNA testing. We
therefore vacate the portion of the sentencing order requiring Sutton to pay
the cost of his DNA testing.

¶16           After the filing of this decision, defense counsel’s obligations
pertaining to Sutton’s representation in this appeal will end after informing
Sutton of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Sutton shall




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                           Decision of the Court

have 30 days from the date of this decision to proceed, if he desires, with a
pro se motion for reconsideration or petition for review.

                              CONCLUSION

¶17           For the forgoing reasons, we vacate the portion of the
sentencing order requiring Sutton to pay for his DNA testing, but otherwise
affirm his convictions and sentences.




                                :gsh




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