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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JEFFERY SCOTT TRIMBLE, Appellant.

                             No. 1 CA-CR 18-0048
                               FILED 1-8-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-106838-001
                The Honorable Gregory S. Como, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
                           STATE v. TRIMBLE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1             Jeffery Scott Trimble appeals his convictions and sentences for
theft of means of transportation and conducting a chop shop. He argues
the trial court committed four errors. First, he argues insufficient evidence
supported his conviction for theft of means of transportation. Second,
Trimble contends the superior court incorrectly sentenced him as a
Category 3 repetitive offender because the State failed to prove he had two
historical prior felony convictions. Third, he contends the superior court
failed to properly credit him with time he had served in custody. Fourth,
he asserts that a discrepancy between the court’s oral pronouncement of
sentence and the sentencing minute entry unlawfully increased his prison
term. For the following reasons, we affirm his convictions and modify his
sentences.

                  FACTS1 AND PROCEDURAL HISTORY

¶2            During a search of Trimble’s property, police officers
discovered parts belonging to four stolen vehicles. Trimble was convicted
of the above crimes. He was sentenced to 11.5 years’ imprisonment for the
theft of means of transportation and 13 years’ imprisonment for the
operation of a chop shop.2



1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2      Arizona Revised Statutes section 13-4701 defines “Chop shop” as:

       any building, lot or other premises in which one or more
       persons alters, destroys, disassembles, dismantles,
       reassembles or stores at least one motor vehicle or watercraft
       or two or more motor vehicle or watercraft parts from at least
       one vehicle or watercraft that the person or persons knows



                                      2
                            STATE v. TRIMBLE
                            Decision of the Court

¶3            He timely appealed his convictions and sentences. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

                               DISCUSSION

I.     Sufficient evidence supported the conviction for theft of means of
       transportation.

¶4             Trimble was charged with knowingly controlling J.S.’s 1999
Isuzu Amigo, knowing or having reason to know that it was stolen. At trial,
an officer testified that in searching Trimble’s property, he found parts to
an Isuzu Amigo, and another officer testified the VIN recovered from the
Isuzu parts matched the VIN of an Isuzu Amigo that had been reported
stolen. Further, J.S. testified he owned a 1999 Isuzu Amigo that had been
stolen. Although the make and model year of the vehicle stolen from J.S.
matched the make and model year of the parts found on Trimble’s property,
the State did not present any other evidence to show that the parts found
on Trimble’s lot came from J.S.’s Isuzu Amigo. Trimble argues insufficient
evidence therefore supported the jury’s guilty verdict. We review the
sufficiency of evidence de novo. State v. West, 226 Ariz. 559, 562, ¶15 (2011).
When reviewing the evidence, the question is whether “any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Cox, 217 Ariz. 353, 357, ¶22 (2007) (internal
citation and quotations omitted).

¶5           Under the charged statute, the State was required to prove
Trimble knowingly controlled “another person’s means of transportation
knowing or having reason to know that the property is stolen.” A.R.S. § 13-
1814(A)(5). Although Trimble argues the State was required to prove the
stolen Isuzu Amigo parts belonged to J.S., that is not an essential element

       were obtained by theft, fraud or conspiracy to defraud with
       the intent to:
       (a) Alter, counterfeit, deface, destroy, disguise, falsify, forge,
       obliterate or remove the identity of the motor vehicles or
       motor vehicle parts, including the vehicle identification
       number for the purpose of misrepresenting or preventing the
       identification of the motor vehicles or motor vehicle parts.

       (b) Sell or dispose of the motor vehicles or motor vehicle parts.




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                           STATE v. TRIMBLE
                           Decision of the Court

of the offense. The statute does not require the stolen means of
transportation to belong to a specific person; it only requires the State to
prove Trimble controlled a means of transportation that was stolen.

¶6             Here, sufficient evidence supported the jury’s guilty verdict.
The officer testified the Isuzu Amigo parts found on Trimble’s property had
been reported stolen. Trimble admitted that a person named “Shane”
brought the parts to his property. Trimble knew Shane stole cars. Based on
this evidence, a rational jury could have found Trimble knowingly
controlled a stolen vehicle knowing or having reason to know it was stolen.

II.    The superior court did not reversibly err by sentencing Trimble as a
       Category 3 repetitive offender.

¶7             The State alleged Trimble had at least two historical prior
felony convictions. Before enhancing a defendant’s sentence with prior
convictions, the court must find the defendant committed the prior felonies.
State v. Morales, 215 Ariz. 59, 61, ¶ 6 (2007). Trimble concedes proof of one
historical prior felony, a conspiracy to commit possession of a dangerous
drug for sale. He argues the State did not prove the second historical prior
felony. Trimble did not object in the superior court to being sentenced as a
Category 3 repetitive offender, so we review for fundamental error. State
v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶8             A historical prior felony conviction may be established by a
defendant’s admission. Morales, 215 Ariz. at 61, ¶ 7. If a defendant admits
a prior felony conviction, he or she must do so voluntarily and intelligently,
id. at ¶ 8, which requires the court to “advise the defendant of the nature of
the allegation, the effect of admitting the allegation on the defendant’s
sentence, and the defendant’s right to proceed to trial and require the State
to prove the allegation,” State v. Young, 230 Ariz. 265, 268, ¶ 8 (App. 2012)
(internal citation and quotations omitted).

¶9            In a separate criminal sentencing in another matter, Trimble
pleaded guilty to two felonies committed in 2017. Following the plea
colloquy in that separate matter, Trimble admitted a prior felony conviction
for aggravated driving under the influence (“DUI”). During the sentencing
on the theft and chop shop convictions, the State offered Trimble’s
admission to the DUI felony as proof that he committed a second historical
prior felony. Because Trimble made the admission for purposes of
sentencing on the 2017 charges and not on these convictions, he argues his
admission to the DUI does not constitute proof of the second prior felony
conviction in the instant case.



                                      4
                            STATE v. TRIMBLE
                            Decision of the Court

¶10           Although the State argues the court in this case properly used
Trimble’s admission to the DUI to enhance his sentences, when Trimble
made that admission, he was not informed of its effect on his sentences for
the theft and chop shop convictions. The failure to conduct the appropriate
colloquy before sentencing Trimble as a Category 3 repetitive offender was
error. Morales, 215 Ariz. at 61-62, ¶ 10.

¶11            The absence of a formal colloquy, however, does not
automatically entitle Trimble to a resentencing; he must first establish
prejudice. Id. at 62, ¶ 11. Trimble fails to argue how he was prejudiced.
Trimble’s Category 3 sentence is supported by conclusive evidence. Such
evidence included Trimble’s own admission, made after an appropriate
colloquy, in a hearing in the other matter. Said hearing was conducted at
the same time as a scheduling hearing in the instant case. Additionally, the
presentence report also established the fact of the prior conviction.
Trimble’s failure to object to that report waived objections as to its accuracy.
State v. Gonzales, 233 Ariz. 455, 458, ¶ 11 (App. 2013). In fact, the presentence
report stated he had committed four prior felonies. Any third or more prior
felony conviction constitutes a historical prior felony. A.R.S. § 13-
105(22)(d). Based on this information alone, Trimble had two historical
prior felonies and was correctly sentenced as a Category 3 offender. We
find no prejudice.

III.   Trimble must receive additional incarceration credit.

¶12           At sentencing, Trimble received 282 days of incarceration
credit. Trimble argues he should receive two additional days of
incarceration credit. Because he did not object at sentencing, we review for
fundamental error. Escalante, 245 Ariz. at 138, ¶ 1. A failure to award
deserved incarceration credit is fundamental error. State v. Cofield, 210 Ariz.
84, 86, ¶10 (App. 2005).

¶13            According to A.R.S. § 13-712(B), a defendant must receive
credit for “[a]ll time actually spent in custody[.]” The State concedes that
Trimble spent an additional two days in custody not including the 282 days
of credit he already received. Therefore, he must receive two additional
days of presentence incarceration credit.

IV.    Trimble’s prison term must be corrected to reflect the term the court
       orally pronounced.

¶14        At sentencing, the court ordered Trimble to serve 11.25 years’
imprisonment for the theft of means of transportation conviction.



                                       5
                          STATE v. TRIMBLE
                          Decision of the Court

However, the sentencing minute entry states the sentence imposed as 11.5
years’ imprisonment.

¶15          When there is a discrepancy between the oral pronouncement
of sentence and the sentencing minute entry, the oral pronouncement
controls. State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013). As the State
concedes, Trimble’s sentence must be modified to 11.25 years’
imprisonment for the theft of means of transportation conviction.

                             CONCLUSION

¶16          Trimble’s convictions are affirmed as modified. We modify
his sentence for the theft of means of transportation to 11.25 years’
imprisonment. We modify his presentence incarceration credit from 282
days to 284 days.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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