Opinion
1 CA-CR 10-0921
12-08-2011
STATE OF ARIZONA, Appellee, v. JOHN FOSTER MCCONNELL, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Abigail Jensen, P.C. By Abigail Jensen Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CR20090234
The Honorable Thomas B. Lindberg, Judge
The Honorable Tina R. Ainley, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Division
Attorneys for Appellee
Phoenix
Abigail Jensen, P.C.
By Abigail Jensen
Attorneys for Appellant
Prescott IRVINE , 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 John Foster McConnell ("McConnell") asks this Court to search the record for fundamental error. McConnell was given an opportunity to file a supplemental brief in propria persona. He has not done so. After reviewing the record, we affirm McConnell's convictions and sentences.
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 McConnell. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). In December 2008, an informant told police that McConnell was selling large amounts of marijuana. In January 2009, the informant spoke with McConnell over the phone and arranged for the purchase of one pound of marijuana. Police recorded the conversation. The next day, the informant met with McConnell and purchased a pound of marijuana. Police seized the marijuana and processed it into evidence.
¶3 During the following two months, the police informant spoke with McConnell over the phone on three other occasions. All three times, the informant requested a pound of marijuana. Each time, McConnell delivered a pound of marijuana to the informant. Before McConnell delivered the fourth pound of marijuana, police stopped his vehicle pursuant to a search warrant. During the search, police found one pound of marijuana in the vehicle. Police later searched McConnell's home where they found approximately six pounds of marijuana, a digital scale and rolling papers.
¶4 The State charged McConnell with four counts of sale, transfer, or offer to sell less than two pounds of marijuana, class 3 felonies; four counts of use of a wire or electronic communications to facilitate a felony, class 4 felonies; possession of four pounds or more of marijuana for sale, a class 2 felony; and possession of drug paraphernalia, a class 6 felony. McConnell agreed to waive his right to a jury trial and submit the issue of his guilt or innocence based on a stipulated record. The State agreed to a stipulated sentencing range of three to eight years in prison. McConnell was convicted of all counts.
McConnell was also charged with one count of possession of four pounds or more of marijuana, a class 4 felony, but the charge was later withdrawn.
¶5 The trial court conducted the sentencing hearing in compliance with McConnell's constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. The trial court sentenced McConnell to the presumptive term of 3.5 years in prison for each of the four counts of sale, transfer, or offer to sell less than two pounds of marijuana; the presumptive term of 2.5 years for each of the four counts of use of a wire or electronic communications to facilitate a felony; the presumptive term of 2.5 years for possession of four pounds or more of marijuana for sale; and the presumptive term of one year for possession of drug paraphernalia. The court ordered that all sentences run concurrently. McConnell received credit for two days presentence incarceration.
DISCUSSION
¶6 We review McConnell's convictions and sentences for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). Counsel for McConnell has advised this Court that after a diligent search of the entire record, she 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.
¶7 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, McConnell was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. We decline to order briefing, and we affirm McConnell's convictions and sentences.
¶8 Upon the filing of this decision, defense counsel shall inform McConnell 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). McConnell shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶9 We affirm.
PATRICK IRVINE, Judge CONCURRING: ANN A. SCOTT TIMMER, Presiding Judge DANIEL A. BARKER, Judge