Statev.Biehler

ARIZONA COURT OF APPEALS DIVISION TWOJul 10, 2019
No. 2 CA-CR 2018-0268 (Ariz. Ct. App. Jul. 10, 2019)

No. 2 CA-CR 2018-0268

07-10-2019

THE STATE OF ARIZONA, Appellee, v. ELIJAH SHANE WILLIAM BIEHLER, Appellant.

COUNSEL Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant


THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See
Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County
No. CR20180174001
The Honorable Javier Chon-Lopez, Judge

AFFIRMED AS CORRECTED

COUNSEL

Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

VÁSQUEZ, Chief Judge:

¶1 Following a jury trial, appellant Elijah Biehler was convicted of four counts of burglary in the third degree and one count of theft with a value of $1,000 or more but less than $2,000. The trial court imposed concurrent, minimum prison terms, the longer of which are three years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297 (1969), and State v. Clark, 196 Ariz. 530 (App. 1999), stating she has "reviewed the entire record and has been unable to find any arguably meritorious issue to raise on appeal" and asking us to search the record for error. Consistent with Clark, 196 Ariz. 530, ¶ 32, she has provided "a detailed factual and procedural history of the case with citations to the record." Biehler has not filed a supplemental brief.

¶2 Viewed in the light most favorable to sustaining the verdicts, see State v. Delgado, 232 Ariz. 182, ¶ 2 (App. 2013), the evidence is sufficient to support the jury's findings of guilt, see A.R.S. §§ 13-1501(4), 13-1506(A)(1), (B), 13-1802(A)(1), (G). The evidence presented at trial showed that on December 21, 24, and in the morning and evening of December 25, 2017, Biehler entered a fenced commercial yard belonging to a cement manufacturing company and removed copper wire. We further conclude the sentences are within the statutory limits and were imposed in a lawful manner. See A.R.S. §§ 13-702(D), 13-703(A), (H), (I).

¶3 In our review of the record pursuant to Anders, we discovered that although the trial court stated at the sentencing hearing that Biehler was convicted of theft in count five, a nonrepetitive offense, the sentencing order incorrectly stated he had been convicted of a repetitive offense on that count. We thus correct the sentencing order to reflect that count five was a nonrepetitive offense, as reflected in the sentencing transcript and the sentence imposed. See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013) (discrepancy between oral pronouncement of sentence and written minute

entry generally controlled by oral pronouncement and reviewing court will correct minute entry if record clearly identifies intended sentence).

¶4 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. Accordingly, we affirm Biehler's convictions and the sentences imposed but correct the sentencing order to reflect that count five was a nonrepetitive offense.