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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JOSHUA MICHAEL LUDWIG, Appellant.

                             No. 1 CA-CR 14-0355
                               FILED 6-11-2015


           Appeal from the Superior Court in Yavapai County
                       No. V1300CR201380316
                The Honorable Michael R. Bluff, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

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

Yavapai County Public Defender’s Office, Prescott
By John David Napper
Counsel for Appellant
                            STATE v. LUDWIG
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1            Joshua Michael Ludwig filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969), following his conviction of shoplifting with two or more
predicate offenses, a class four felony.1 The trial court sentenced him to
three years’ imprisonment. Finding no arguable issues to raise, Ludwig’s
counsel requested that this Court search the record for fundamental error.
Ludwig was given the opportunity to but did not file a pro per supplemental
brief, nor did counsel identify any issues for review. For the reasons that
follow, we affirm Ludwig’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2           On July 20, 2013, A.M. observed Ludwig and his father
exchange an automotive battery at Wal-Mart, where A.M. was employed.
After the exchange, A.M. saw Ludwig take a second battery and quickly
walk away with it. Believing Ludwig’s actions to be suspicious, A.M.
alerted Wal-Mart management that there was a theft in progress. M.S., Wal-
Mart’s loss prevention officer, was alerted that a suspect was possibly
attempting to steal an automotive battery. M.S. questioned some Wal-Mart
employees, including A.M., to get a description of the theft suspect. After
being unable to find the suspect in the store, M.S. reviewed surveillance
video from around the time Ludwig had been in the store.

¶3            Surveillance video revealed that after Ludwig and his
girlfriend approached the Wal-Mart exit while pushing a cart containing
the exchanged battery, Ludwig re-entered Wal-Mart. Ludwig found his
father in the store, pushing a cart containing another battery. Shortly
thereafter, the video shows Ludwig’s father pushing a cart containing the
stolen battery in the parking lot and placing it in a vehicle. By the time M.S.


1 Ludwig additionally pled guilty to two counts of criminal trespass in the
third degree, class three misdemeanors, and two counts of interfering with
judicial proceedings, class one misdemeanors.


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                              STATE v. LUDWIG
                              Decision of the Court

identified Ludwig as the suspect, Ludwig was already in the parking lot.
Because Wal-Mart’s policy is to not apprehend suspects if they are outside
of the store, M.S. obtained Ludwig’s license plate number and returned to
the store to record the shoplifting incident and alert the police.

¶4            Five days later, Ludwig returned to Wal-Mart. Upon
recognizing Ludwig, M.S. alerted the police. Officer B.C. arrived at Wal-
Mart and arrested Ludwig for criminal trespass. After reading Ludwig his
Miranda rights,2 Officer B.C. questioned Ludwig about the July 20
shoplifting incident. At first, Ludwig denied any involvement in
shoplifting the battery. However, after Officer B.C. told Ludwig that they
had enough evidence of Ludwig’s involvement to arrest him, Ludwig
admitted he and his father had taken the battery without paying for it.

¶5            While under arrest, Ludwig telephoned his father to pick up
his girlfriend and her child who were with him at Wal-Mart. When
Ludwig’s father arrived, police also placed him under arrest for
involvement in the shoplifting incident.           Ludwig’s father denied
involvement when questioned by Officer B.C. and, ultimately, was not
prosecuted for shoplifting related to the July 20 incident. At trial, however,
Ludwig’s father testified that he stole the battery and that Ludwig did not
know until the next day. He testified that Ludwig gave him money in Wal-
Mart on July 20 to buy the battery, but instead of paying for the battery, he
simply took the battery without paying for it. Ludwig, however, did not
claim he had given his father money to pay for the battery. Rather, Ludwig
admitted involvement in the shoplifting to Officer B.C.

¶6            Ludwig was charged with and found guilty of shoplifting
with two or more predicate convictions, a class four felony. Ariz. Rev. Stat.
(“A.R.S.”) § 13-1805(A), (I) (2009). Based on this conviction, the court
sentenced him to three years’ imprisonment, the minimum sentence for
category two repetitive offender convicted of a nondangerous, repetitive
offense. For the counts to which Ludwig pled guilty, see supra n.1, the court
sentenced him to 42 days’ imprisonment, to run concurrently with his
sentence of three years’ imprisonment. The court also credited Ludwig 42
days of presentence incarceration credit.

¶7             Ludwig timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. § 13-4031 (2010),
-4033(A)(1) (2010).



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


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                            STATE v. LUDWIG
                            Decision of the Court

                         STANDARD OF REVIEW

¶8             In an Anders appeal, this Court must review the entire record
for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388,
391 (App. 1993). Fundamental error is “error going to the foundation of the
case, error that takes from the defendant a right essential to his defense, and
error of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005) (internal quotation marks and citation omitted). To obtain a
reversal, the defendant must also demonstrate that the error caused
prejudice. Id. at ¶ 20.

                               DISCUSSION

¶9             After careful review of the record, we find no grounds for
reversal of Ludwig’s convictions or sentences. The record reflects Ludwig
had a fair trial and all proceedings were conducted in accordance with the
Arizona Rules of Criminal Procedure.           Ludwig was present and
represented by counsel at all critical stages of trial, was given the
opportunity to speak at sentencing, and the sentences imposed were within
the range for Ludwig’s offenses.

I.     Sufficiency of the Evidence

¶10            There is sufficient evidence in the record to support Ludwig’s
conviction. In reviewing the sufficiency of evidence at trial, “[w]e construe
the evidence in the light most favorable to sustaining the verdict, and
resolve all reasonable inferences against the defendant.” State v. Greene, 192
Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “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) (quoting State v. Scott, 113 Ariz. 423, 424-
25, 555 P.2d 1117, 1118-19 (1976)).

¶11           The crime of shoplifting requires proof that the defendant was
in an establishment in which merchandise was displayed for sale,
knowingly removed such merchandise without paying the purchase price,
with the intent to deprive the other person of the merchandise. A.R.S. § 13-
1805(A)(1). The crime of shoplifting with two or more predicate offenses
additionally requires proof that the defendant “has previously committed
or been convicted within the past five years of two or more offenses
involving burglary, shoplifting, robbery, organized retail theft or theft.”
A.R.S. § 13-1805(I).



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                           STATE v. LUDWIG
                           Decision of the Court

¶12           The State presented evidence that Ludwig was in Wal-Mart,
an establishment in which merchandise was displayed for sale when the
battery was stolen. Ludwig’s father testified that Ludwig was in Wal-Mart
on July 20. M.S. testified that he identified Ludwig as a suspect of the theft
on July 20. Officer B.C. also testified that when he interviewed Ludwig,
Ludwig admitted he was involved in the shoplifting of the battery from
Wal-Mart on July 20. Finally, the State presented photographs and video
surveillance of Ludwig in Wal-Mart on July 20.

¶13            The State also presented evidence that Ludwig knowingly
obtained the battery from Wal-Mart with the intent to deprive Wal-Mart of
the battery without paying for it. The State called A.M., a Wal-Mart
employee, as a witness. A.M. testified that he saw Ludwig and Ludwig’s
father exchange an old battery for a new one. A.M. then saw Ludwig later
return to the automotive department and retrieve a second battery. A.M.
testified that Ludwig looked “shifty” and was looking around when he
“snagged” the second battery. According to A.M., Ludwig then quickly
walked down the aisle toward the front of the Wal-Mart. Further, Officer
B.C. testified that Ludwig confessed he was involved in shoplifting the
battery.

¶14          Additionally, the State presented evidence of Ludwig’s
predicate convictions for shoplifting. The State called a clerk for the
Cottonwood municipal court as a witness. The clerk testified that Ludwig
was convicted of shoplifting on February 3, 2011 and on April 1, 2010.
Those convictions were not appealed or challenged. The State also
submitted Ludwig’s prior record into evidence.

¶15           Finally, after a colloquy, the trial court appropriately found
that Ludwig knowingly, intelligently, and voluntarily waived his right to a
jury trial and pled guilty to the crimes of criminal trespass in the third
degree and interfering with judicial proceedings. Based on these
convictions, the court sentenced Ludwig to 42 days’ on each of the four
counts imprisonment to run concurrently with Ludwig’s sentence of three
years’ imprisonment for shoplifting and granted Ludwig 42 days’
presentence incarceration credit.

¶16            Criminal trespass in the third degree is a class three
misdemeanor, see A.R.S. § 13-1502 (2014), and the sentencing guidelines in
place at the time of the crime only allowed for a maximum sentence of 30
days’ imprisonment for the criminal trespass convictions, A.R.S. § 13-707
(2010). Therefore, the court erred in sentencing Ludwig to 42 days’
imprisonment for the criminal trespass convictions. Such error is harmless,


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                           STATE v. LUDWIG
                           Decision of the Court

however, because all of Ludwig’s sentences are concurrent with one
another and, ultimately, Ludwig was properly sentenced to three years’
imprisonment for the shoplifting charge and 42 days’ imprisonment for
both counts of interfering with judicial proceedings.

II.    Presentence Incarceration Credit

¶17           Presentence incarceration credit is given for time spent in
custody beginning on the day of booking, State v. Carnegie, 174 Ariz. 452,
454, 850 P.2d 690, 692 (App. 1993), and ending on the day before sentencing.
State v. Hamilton, 153 Ariz. 244, 245-46, 735 P.2d 854, 855-56 (App. 1987).

¶18          Here, both the transcript and minute entry reflect the court
credited Ludwig with 42 days of presentence incarceration credit.
However, by our calculation, Ludwig was incarcerated for 43 days prior to
sentencing.3 Therefore, we modify his sentences as to each count and credit
Ludwig with 43 days of presentence incarceration credit.

                              CONCLUSION

¶19           For the foregoing reasons, we affirm Ludwig’s convictions
and sentences. Upon the filing of this decision, defense counsel shall inform
Ludwig of the status of his appeal and his future appellate options. Defense
counsel has no further obligations, unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). Upon the Court’s own motion, Ludwig shall have thirty days from
the date of this decision to proceed, if he so desires, with a pro per motion
for reconsideration or petition for review.




                                     :ama


3Ludwig was arrested on July 25, 2013 and then released on July 26, 2013
when he posted bond. Subsequently, after being convicted at trial, Ludwig
was taken into custody on April 4, 2014 and held without bond until his
sentencing hearing on May 16, 2014.


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