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State v. Robertson

Court of Appeals of Arizona, First Division

April 18, 2019

STATE OF ARIZONA, Appellee,
v.
DEMITRES ROBERTSON, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2002-015076 The Honorable John R. Doody, Judge Pro Tempore

          Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee

          Maricopa County Public Defender's Office, Phoenix By Lawrence S. Matthew Counsel for Appellant

          Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

          OPINION

          MORSE, JUDGE

         ¶1 Demitres Robertson appeals the superior court's July 12, 2017 order revoking her probation and imposing a term of imprisonment. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In August 2002, the State charged Robertson with one count of first-degree murder, a class 1 felony, and two counts of intentional child abuse, class 2 felonies and dangerous crimes against children, based on acts that occurred in November 2001. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-604.01 (2001), -1105 (2001), -3623(A)(1) (2001). The court later dismissed the first count of child abuse for lack of probable cause. See Ariz. R. Crim. P. 5.4(d).[1]

         ¶3 Had Robertson been convicted of the charged count of first- degree murder, she faced a mandatory sentence of life imprisonment. See A.R.S. §§ 13-1105(C), -703(A) (2001). She also faced the potential for a mandatory consecutive sentence of up to 28 years imprisonment for the count of intentional child abuse as a dangerous crime against children. See A.R.S. §§ 13-3623(A)(1), -604.01(D), (K)[2].

         ¶4 Pursuant to a plea agreement, the State reduced the charged counts, and Robertson avoided the potential for life in prison plus a consecutive sentence. She pleaded guilty to one amended count of manslaughter, a class 2 dangerous felony, and one amended count of reckless child abuse, a class 3 felony. See A.R.S. §§ 13-1103 (2001), -3623(A)(2). Robertson faced a sentence of seven to 21 years for manslaughter, and two to 8.75 years for reckless child abuse. See A.R.S. §§ 13-604(I) (2001), -701 (2001), -702 (2001), -702.01 (2001). Pursuant to the plea agreement, however, the parties stipulated to a prison term of eight to 15 years for manslaughter and a consecutive term of probation for reckless child abuse. The court sentenced Robertson to ten years' imprisonment for manslaughter, credited Robertson 602 days of presentence incarceration, and placed Robertson on a lifetime term of probation upon completion of her prison sentence. Robertson completed her prison sentence in August 2010.

         ¶5 Robertson violated her probation in September of 2014 and June of 2016, and the superior court reinstated her probation after both violations. After the September 2014 violation, one of the terms of Robertson's reinstated probation was a six-month term of incarceration in the county jail. Robertson violated her probation again in March 2017, and the court imposed intensive probation.

         ¶6 Two months later, in May 2017, the State filed a petition claiming Robertson violated intensive probation and sought to revoke Robertson's probation. Robertson denied the petition's allegations.

         ¶7 At the probation-violation hearing, Robertson argued for the first time that the crimes of manslaughter and child abuse constituted a single act involving a single victim, and therefore, consecutive sentencing on the convictions violated the statutory prohibition against double punishment. See A.R.S. § 13-116. The court denied Robertson's oral motion to dismiss the petition to revoke.

         ¶8 After the hearing, the court revoked Robertson's probation and ordered that Robertson be imprisoned for a presumptive term of 3.5 years pursuant to A.R.S. ยง ...


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