Opinion
No. 1 CA-CR 14-0595
12-08-2015
STATE OF ARIZONA, Appellee, v. MARK RYAN GERI, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2013-002242-002
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Peter B. Swann joined.
HOWE, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Mark Ryan Geri asks this Court to search the record for fundamental error. Geri was given an opportunity to file a supplemental brief in propria persona. He has not done so. After reviewing the record, we affirm Geri's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the trial court's judgment and resolve all reasonable inferences against Geri. State v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 At dawn one morning in February 2013, an apartment security guard saw two men on the roof of a neighboring strip mall. Although he could not see the facial features of either person, the guard noted that one man—later identified as Geri—wore a lighter colored jacket and the other wore a darker colored jacket. The man in the dark jacket descended from the roof and received a duffle bag from Geri. After lowering the bag, Geri also descended and both men took off on bicycles. The security guard called 911 to report what he had witnessed.
¶4 Within one minute of receiving the call, police officers in the area observed two men matching the security guard's description exit the strip mall's rear parking lot. The officers stopped the men and had them sit on the curb where Geri and the other man, who was still carrying the duffle bag, identified themselves. Inside the duffle bag the officers discovered a copper pipe, folded and broken in several spots.
¶5 Another team of officers climbed onto the roof where the security guard saw Geri. There, the officers found that the copper drainage pipes on several air conditioning units had been broken off and that the remaining pipes had "broke, jagged" edges that were shiny, indicating that the break had occurred recently. The officers later noted that the weathering
on the roof's pipes matched that of the pipes found in the duffle bag and that the two pipes were the same size. The State subsequently charged Geri with one count of third degree burglary.
¶6 Before the jury trial, the State requested a hearing pursuant to Arizona Rule of Evidence 609, which provides that the State may impeach a testifying defendant with his prior convictions if the probative value of those convictions outweighs their prejudicial effect. The State alleged that Geri had four prior felony convictions. The trial court did not conduct the hearing, but because Geri elected to not testify, defense counsel did not raise any objection to that. The State also alleged other aggravating circumstances, including the taking of property, the presence of an accomplice, the expectation of the receipt of pecuniary gain, and victim financial harm.
¶7 After the State rested its case-in-chief at the trial, defense counsel moved for an Arizona Rule of Criminal Procedure 20 judgment of acquittal, but the trial court denied the motion. Then, before closing arguments, Geri moved to remove his counsel, arguing that counsel "did not do his job" because counsel failed to ask the witnesses any of the pages of questions that Geri gave him to ask. The trial court denied Geri's motion. After deliberating, the jurors convicted Geri of third degree burglary. The jurors also found that the State had proved the aggravating factors of expectation of the receipt of anything of pecuniary value and the presence of an accomplice.
¶8 At the subsequent sentencing hearing conducted in compliance with Arizona Rule of Criminal Procedure 26, Geri admitted to having four prior felony convictions, which the trial court accepted. The trial court then sentenced Geri to eight years' imprisonment with 147 days' presentence incarceration credit. Geri timely appealed.
DISCUSSION
¶9 We review Geri's conviction and sentence for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).
¶10 Counsel for Geri has advised this Court that after a diligent search of the entire record, he has found no arguable question of law. We have read and considered counsel's brief and fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Geri was represented by counsel at all stages of the proceedings, and the sentence imposed was
within the statutory limits. We note that although Geri effectively claimed ineffective assistance of counsel at trial, we do not address that issue on direct appeal. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). Such claims can only be addressed in a post-conviction proceeding pursuant to Arizona Rule of Criminal Procedure 32. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415 ¶ 20, 153 P.3d 1040, 1044 (2007). We decline to order briefing, and we affirm Geri's conviction and sentence.
¶11 Upon the filing of this decision, defense counsel shall inform Geri of the status of his appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Geri shall have 30 days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or a petition for review.
CONCLUSION
¶12 For the foregoing reasons, we affirm.