State v. Peterson

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. GREGORY ALLEN PETERSON, Appellant. No. 1 CA-CR 25-0034 FILED 11-09-2026 Appeal from the Superior Court in Maricopa County No. CR2022-127779-001 The Honorable Justin Beresky, Judge AFFIRMED AS MODIFIED COUNSEL Arizona Attorney General’s Office, Phoenix By Michael O’Toole Counsel for Appellee Vingelli & Company, Law Offices, PLLC, Scottsdale By John N. Vingelli Counsel for Appellant  STATE v. PETERSON Decision of the Court MEMORANDUM DECISION Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Brian Y. Furuya and Judge D. Andrew Gaona joined. P E R K I N S, Judge: ¶1 Gregory Allen Peterson timely filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), following his convictions for possession of weapons by a prohibited person, a Class 4 felony (Count 1); kidnapping, a Class 2 felony (Count 2); second degree murder, a Class 1 felony (Count 3); and first degree burglary, a Class 2 felony (Count 4). Peterson’s counsel searched the record and advised this Court he found no arguable question of law that is not frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). Peterson had the opportunity to file a supplemental brief but did not do so. ¶2 We must review the entire record for reversible error, State v. Thompson, 229 Ariz. 43, 45 ¶ 3 (App. 2012), viewing the evidence in the light most favorable to sustaining the convictions and resolving all reasonable inferences against Peterson. See State v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). FACTS AND PROCEDURAL BACKGROUND ¶3 In July 2022, Peterson, who was prohibited from possessing firearms under Arizona Revised Statutes (“A.R.S.”) Section 13-3101(7), entered his ex-girlfriend’s (“Homeowner”) home, ignored her demands that he leave, and shot and killed her friend during a tense exchange. Peterson then grabbed Homeowner’s phone, purse, and car keys and demanded she join him. She “was scared,” and “didn’t know what [Peterson] would do” if she defied him. With no other choice, Homeowner complied. ¶4 Peterson drove Homeowner’s car to a convenience store, where he forced her to withdraw money from an ATM and give it to him. ¶5 The court bifurcated Count 1 from the rest of the counts, to be determined during the aggravation phase of the trial. After the State rested, 2  STATE v. PETERSON Decision of the Court Peterson moved for acquittal for insufficient evidence under Arizona Rule of Criminal Procedure 20, which the court denied. ¶6 The jury found Peterson guilty on all counts. ¶7 For Count 1, the court sentenced Peterson as a category three repetitive offender to an aggravated term of fifteen years in prison. See A.R.S. § 13-703(J). For Count 2, the court sentenced Peterson to a greater than presumptive but less than maximum term of twenty years in prison. See id. For Count 3, the court sentenced Peterson to a greater than presumptive but less than maximum term of twenty-two years in prison. See A.R.S. § 13-710(A). For Count 4, the court sentenced Peterson to a greater than presumptive but less than maximum term of twenty years in prison See A.R.S. § 13-703(J). ¶8 For all counts, the jury found three aggravating circumstances: (1) Peterson was previously convicted of a felony within ten years immediately preceding the date of the offense, see A.R.S. § 13- 701(D)(11); (2) Peterson was on probation for a felony offense when the current offense was committed, see State v. Ritacca, 169 Ariz. 401, 403 (App. 1991); and (3) Peterson was on release for a felony offense when this count was committed, see A.R.S. § 13-708(D). For Counts 2 through 4, the jury found two additional aggravating circumstances: the offense was a dangerous offense, see A.R.S. § 13-701(D)(2); and the offense caused physical, emotional, or financial harm to the victim’s immediate family, see A.R.S. § 13-701(D)(9). ¶9 The superior court pronounced Peterson’s guilt and sentences on January 17, 2025. The court did not credit Peterson for any presentence incarceration. The court ordered Counts 1, 2, and 4 to be served concurrently and Count 3 to be served consecutively to the other counts. ¶10 Peterson filed his notice of appeal on January 17, 2025. DISCUSSION ¶11 We reviewed the entire record for fundamental, prejudicial errors. We conclude that the superior court committed non-prejudicial error by enhancing Peterson’s sentences based on multiple priors without a jury determination that those offenses were committed on separate occasions. We also hold that Peterson was entitled to one extra day of pre- sentence incarceration credit. We affirm as modified. 3  STATE v. PETERSON Decision of the Court I. Multiple Prior Felony Convictions ¶12 The court enhanced Peterson’s sentences based on multiple prior felony convictions under A.R.S. Section 13-703, sentencing him as a Category Three offender. But the jury did not determine whether the convictions were committed on the same occasion. ¶13 Whether a defendant committed prior convictions on separate occasions is a fact a jury must “find beyond a reasonable doubt” if it “increases his exposure to punishment.” Erlinger v. United States, 602 U.S. 821, 828 (2024). Convictions for multiple “offenses committed on the same occasion” constitute only one conviction. A.R.S. § 13-703(L). The jury, rather than the superior court, should determine whether prior convictions occurred on the “same occasion.” State v. Porter, 258 Ariz. 590, 593 ¶ 10 (App. 2024) (review denied, and depublished in part by 259 Ariz. 467 (2025)). If the defendant did not request that jury finding, we review for fundamental error. Id. at ¶ 6. If the defendant establishes fundamental error, he must make a separate showing of prejudice. State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). ¶14 Although the jury did not make the necessary finding of prior convictions committed on separate occasions as required in Erlinger, Peterson cannot establish prejudice. The record demonstrates beyond a reasonable doubt that he has multiple prior felony convictions committed on separate occasions and the superior court did not use a lesser standard in concluding Peterson qualified as a Category Three offender. The superior court’s error was thus not fundamental, prejudicial error requiring a remand. II. Presentence Incarceration Credit ¶15 While incarcerated before sentencing, Peterson earned a total of 1,071 days of presentence incarceration credit. The superior court credited Peterson for 913 days’ presentence incarceration for a previous case. For another case, the court credited Peterson for 157 days. So, Peterson is entitled to one additional day of presentence incarceration credit, to be credited against his sentence for Count 3. III. No Reversible Error ¶16 The record shows the superior court conducted all pre-trial proceedings in compliance with the Arizona Rules of Criminal Procedure. See State v. Gomez, 27 Ariz. App. 248, 251 (1976) (citing Ariz. R. Crim. P. 1.2). Peterson was represented by counsel at all stages of the proceedings. He 4  STATE v. PETERSON Decision of the Court was present at all stages of the proceedings, except for (1) a jury question, and his counsel waived his appearance; and (2) the aggravation phase of the trial when Peterson knowingly, intelligently, and willfully waived his presence. The evidence presented at trial was sufficient to support the jury’s verdict. The court stated on the record the factors it considered in imposing Peterson’s sentence. See Ariz. R. Crim. P. 26.10 (a)–(c). And it sentenced him within the statutory guidelines. See A.R.S. §§ 13-701 to -709. CONCLUSION ¶17 After reviewing the entire record for reversible error, we find none. We affirm Peterson’s convictions and sentences except we increase his presentence incarceration credit by one day, to be credited against his sentence for Count 3. ¶18 Upon the filing of this decision, defense counsel shall inform Peterson of the status of the appeal and of his future options. Counsel has no more obligations unless counsel finds an issue appropriate to submit to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Peterson shall have 30 days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 5