Opinion
No. 2 CA-CR 2017-0411
07-26-2018
THE STATE OF ARIZONA, Appellee, v. DAVID FIGUEROA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Michael Villarreal, Florence Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201601411
The Honorable Steven J. Fuller, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Michael Villarreal, Florence
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial, David Figueroa was convicted of one count of transportation of dangerous drugs for sale, and sentenced to a mitigated eight-year prison term. He now appeals, arguing that his sentence was excessive. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the jury's verdict. See State v. Pena, 235 Ariz. 277, ¶ 5 (2014). On the morning of May 19, 2016, an Arizona State Trooper stopped Figueroa while he was driving an SUV on the freeway in Pinal County. Upon learning the SUV had been rented the previous night in North Hollywood, California, the trooper sought, and Figueroa consented to, a search of the vehicle. About eight pounds of methamphetamine was subsequently discovered under the rear floorboard. Figueroa was arrested, then tried and sentenced as described above. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
At the time of the stop the SUV contained a female passenger, who was apparently separately charged with and convicted of the same offense. --------
Discussion
¶3 Figueroa's sole argument on appeal is that, given the circumstances of his offense, the sentence of eight years in prison is excessive, cruel, and unusual. Because he offers no substantive argument or citation to legal authority in support of his claim that the sentence was cruel and unusual, he has waived it, and we limit our review to his contention that the trial court abused its discretion by failing to impose the minimum sentence. See State v. Carver, 160 Ariz. 167, 175 (1989) (failure to present "significant argument[]" on a claim constitutes abandonment and waiver); see also Ariz. R. Crim. P. 31.10(a)(7) (briefs must contain contentions with supporting reasons with citation to supporting legal authorities).
¶4 "The imposition of a penalty upon conviction is entirely within the discretion of the trial court, and will not be reduced unless it clearly appears that the sentence imposed is excessive, resulting in an abuse of discretion." State v. Jerousek, 121 Ariz. 420, 429 (1979). "An abuse of discretion occurs when the decision is characterized by capriciousness or arbitrariness or by a failure to conduct an adequate investigation into the facts necessary for an intelligent exercise thereof." State v. Patton, 120 Ariz. 386, 388 (1978).
¶5 Figueroa was sentenced under A.R.S. § 13-3407(E), which provides a sentencing range of five to fifteen years of flat prison time, with a presumptive term of ten years. See also A.R.S. §§ 13-3401(36)(e), 13-3407(A)(7), (D). At sentencing, he requested that the court impose the minimum sentence, noting his lack of criminal history at his age (almost fifty), substantial family and community support, lack of a history of substance abuse, long history of gainful employment, and acceptance of responsibility. The state requested the presumptive term of ten years, noting the large amount of methamphetamine and arguing that Figueroa's co-defendant, who as a passenger in the SUV was less culpable, had received a five-year sentence.
¶6 In a thorough, well-reasoned discussion of the circumstances of the case, the trial court found sufficient mitigating factors to justify a sentence less than the presumptive, but that a minimum sentence of five years was inappropriate "given the amount of meth involved," and sentenced Figueroa to a mitigated eight-year term. The court's choice of sentence was neither arbitrary nor capricious. There was no abuse of discretion.
Disposition
¶7 Figueroa's conviction and sentence are affirmed.