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State v. Gibson

Court of Appeals of Arizona, First Division, Department S

October 15, 2013

STATE OF ARIZONA, Appellee,
v.
STEVEN MICHAEL GIBSON, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Yavapai County Cause No. P1300CR201201190 The Honorable Cele Hancock, Judge

Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Eliza C. Ybarra, Assistant Attorney General Attorneys for Appellee

Nicole Farnum Phoenix Attorney for Appellant

MEMORANDUM DECISION

DIANE M. JOHNSEN, Chief Judge

¶1 Steven Michael Gibson was convicted of three counts of aggravated assault, Class 4 felonies, and one count of resisting arrest, a Class 6 felony. The court imposed consecutive one- year sentences on each of the aggravated assault convictions and a concurrent one-year term of incarceration on the conviction for resisting arrest.

¶2 On appeal, Gibson does not dispute his convictions and does not contest the sentences imposed on the three aggravated assault convictions. He argues, however, that the superior court's imposition of a one-year term for resisting arrest is inconsistent with statements of the court during sentencing and in the judgment of conviction that it intended to impose a mitigated sentence on that conviction. Gibson points out that although the court stated it intended to impose a mitigated sentence, the one-year sentence it imposed is the presumptive sentence for a Class 6 felony. See A.R.S. § 13-702(D) (2013).[1]

¶3 The State confesses error, acknowledging that one year is the presumptive sentence for the Class 6 felony of resisting arrest, and that "[e]ither the trial court erred in calling the sentence 'mitigated' or it erred in sentencing [Gibson] to one year." For the same reason, we agree that the sentence should be remanded so that the superior court may clarify its intent.

¶4 For the reasons stated, we affirm the convictions and the sentences imposed for the three aggravated assault convictions, but vacate and remand the sentence imposed for resisting arrest.

CONCURRING: PATRICIA A. OROZCO, Judge, MAURICE PORTLEY, Judge


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