819 P.2d 1010 (Ariz.App. Div. 1 1991), 1 CA-CR 90-971, State v. Ellison

Docket Nº:1 CA-CR 90-971.
Citation:819 P.2d 1010, 169 Ariz. 424
Opinion Judge:[10] Ehrlich
Party Name:STATE of Arizona, Appellee, v. Samuel Henry ELLISON, Appellant.
Attorney:[7] Grant Woods, The Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee. [8] Dean W. Trebesch, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, for appellant.
Case Date:July 11, 1991
Court:Court of Appeals of Arizona
 
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Page 1010

819 P.2d 1010 (Ariz.App. Div. 1 1991)

169 Ariz. 424

STATE of Arizona, Appellee,

v.

Samuel Henry ELLISON, Appellant.

No. 1 CA-CR 90-971.

Court of Appeals of Arizona, First Division, Department E

July 11, 1991

Review Granted Nov. 5, 1991.

Page 1011

[169 Ariz. 425] Grant Woods, The Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Div., Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Stephen R. Collins, Deputy Public Defender, Phoenix, for appellant.

OPINION

EHRLICH, Judge.

Samuel Henry Ellison, the defendant, appeals from his convictions for two counts of armed robbery and from the sentences imposed. We affirm the judgments.

FACTS

By indictment, the defendant was charged with five counts of armed robbery, each a class 2 felony. The indictment later was amended to allege that three of the counts were dangerous felonies and that a conviction from any one or more of the five counts would serve as a Hannah 1 prior for any of the other convictions.

The defendant entered a written agreement to plead no contest to two counts of armed robbery, both class 2 and non-dangerous felonies. The agreement set forth the range of sentence, the maximum fine and the required payment of a felony assessment. The parties stipulated that the defendant would receive the presumptive term of seven years' imprisonment for one count followed by a five-year probationary term for the other count. The agreement also provided that the defendant would make restitution on each of the five counts in the indictment. The state agreed to dismiss the other three counts of armed robbery and its allegation of Hannah priors.

At the change-of-plea hearing, the prosecutor provided the factual basis as to one count of armed robbery: The defendant and an accomplice demanded money from a store clerk who told them that he had none. The defendant then went behind the counter and punched the clerk in the arm, at which time the clerk opened the cash register and the defendant and his companion took $74 before leaving the store. The two men "simulated that they had handguns in their pockets at the time that they were demanding the money."

The prosecutor also provided the factual basis as to the other count of armed robbery: The defendant's same companion entered another store and, "simulating a handgun under his shirt, demanded money from the clerk." The accomplice then took approximately $100 from the cash register, having "threatened to blast her [the clerk] if she did not open the register." The accomplice then left the store and got into a vehicle driven away by the defendant.

The trial court addressed the defendant personally and determined that the pleas were knowing, voluntary, intelligent and factually-based. Judgment and sentencing were postponed to permit preparation of a presentence report.

The presentence report subsequently submitted to the court provided as to one of the counts that "[b]oth of the men had their hands in their pockets, acting like they had weapons." It further stated that "according to the police reports, either the defendant or ... [his accomplice] carried a weapon or appeared to have a weapon."

At sentencing, the trial court accepted the defendant's pleas...

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