State v. Bragna ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,
v.
JOHN JOSEPH BRAGNA, JR., Petitioner.
No. 1 CA-CR 14-0771 PRPC
FILED 12-13-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2004-036793-001SE
The Honorable Teresa A. Sanders, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
John Joseph Bragna, Jr., Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Andrew Gould and Judge Donn Kessler joined.
STATE v. BRAGNA
Decision of the Court
J O N E S, Judge:
¶1 Petitioner John Joseph Bragna, Jr., petitions this court for
review from the summary dismissal of a motion the trial court properly
treated as Bragna’s ninth successive petition for post-conviction relief.
Bragna pled guilty to attempted sexual conduct with a minor and
attempted sexual abuse in 2004. The trial court sentenced Bragna to a term
of imprisonment for attempted sexual conduct and placed him on
probation for attempted sexual abuse, all as required by the plea agreement.
¶2 Bragna properly presents one issue for review. Bragna argues
the trial court must order his release from prison because the sentencing
minute entry reflects that the trial court actually placed him on probation
for attempted sexual conduct rather than sentence him to prison.
¶3 We deny relief. The sentencing minute entry contains an
error. The minute entry shows the trial court sentenced Bragna to an
aggravated term of fifteen years’ imprisonment for attempted sexual
conduct with a minor. For unknown reasons, the minute entry contains a
statement purportedly suspending the imposition of sentence and placing
Bragna on probation. The minute entry does not, however, identify a term
of probation for that count, and the uniform conditions of probation the
court imposed identify only the count of attempted sexual abuse.
Additionally, the sentencing transcript shows the trial court did not
suspend the imposition of sentence after it sentenced Bragna to fifteen
years’ imprisonment for attempted sexual conduct. Where there is a
discrepancy between the sentencing minute entry and the oral
pronouncement of sentence, the oral pronouncement controls. State v.
Johnson, 108 Ariz. 117, 118 (1972), superseded by rule on other grounds as stated
in State v. Whitman, 234 Ariz. 565 (2014). Where, as here, the record allows
us to resolve such a discrepancy, it is not necessary to remand for
clarification or correction. State v. Bowles, 173 Ariz. 214, 216 (App. 1992).
¶4 We do not address the additional issues Bragna raises in his
petition for review because he did not raise those issues in the motion he
filed below. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Ramirez, 126 Ariz.
464, 468 (App. 1980) (declining to address new arguments presented in a
motion for rehearing after the court issued its original ruling on the petition
for post-conviction relief); State v. Bortz, 169 Ariz. 575, 577 (App. 1991)
(same); cf. State v. Smith, 184 Ariz. 456, 459 (1996) (holding review for
fundamental error in a post-conviction relief proceeding is not required);
State v. Swoopes, 216 Ariz. 390, 403, ¶¶ 40-41 (App. 2007) (same).
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STATE v. BRAGNA
Decision of the Court
¶5 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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