Opinion
No. 2 CA-CR 2017-0370
08-21-2018
THE STATE OF ARIZONA, Appellee, v. BENJAMIN MARK MONTOYA, Appellant.
COUNSEL James Fullin, Pima County Legal Defender By Alex D. Heveri, Assistant Legal Defender, Tucson 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NOT FOR PUBLICATION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 Pima County
No. CR20164384001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL
James Fullin, Pima County Legal Defender
By Alex D. Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Following a jury trial, Benjamin Montoya was convicted of unlawful use of means of transportation, a lesser-included offense of the charged offense of theft of means of transportation, and third-degree burglary. The trial court found the state had proved the sentence-enhancing allegations of four historical prior felony convictions, and sentenced him to concurrent prison terms of 3.75 and six years. Montoya appealed and his counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), avowing she reviewed the entire record but has found no meritorious issue to raise on appeal, and asking this court to review the record for any error warranting relief. Montoya has not filed a supplemental brief.
¶2 The evidence, viewed in the light most favorable to sustaining the jury's guilty verdicts, see State v. Goudeau, 239 Ariz. 421, n.1 (2016), established the following. On an evening in September 2016, the victims' 2003 Chevy Trailblazer was taken without their permission from the parking lot where they had left it while they attended a church gathering. A few days later, a Tucson Police Department detective found the SUV, which had a broken back passenger window, a cracked ignition that had been force-rotated, allowing the vehicle to be started without a key, and a damaged front fender. Papers and compact discs were missing from the vehicle. Placing a tracking device on the SUV, the detective and other law enforcement officers followed the vehicle to various locations, ultimately detaining and then arresting Montoya, who had been driving it. The evidence supported the jury's guilty verdicts on the offenses of unlawful use of means of transportation and third-degree burglary, in violation of A.R.S. §§ 13-1803(A)(1) and 13-1506(A)(1).
¶3 The record also shows the state alleged and proved that Montoya previously had been convicted of four felonies for sentence-enhancement purposes pursuant to A.R.S. § 13-703. Consequently, the trial
court correctly sentenced Montoya as a category three repetitive offender. See § 13-703(J). The range for unlawful use of means of transportation, a class five felony, was therefore between the mitigated, three-year prison term, and the aggravated term of 7.5 years, with four years as the "minimum" term and five years as the presumptive term. Id. The court sentenced Montoya to "a minimum term of 3.75 years," thus slightly more than the mitigated but less than the statutory minimum, finding the mitigating circumstances outweighed the aggravating circumstances. The court sentenced him to a concurrent, mitigated term of six years' imprisonment for third-degree burglary, a class four felony. Id.
¶4 The sentences are within the applicable ranges and were imposed in a lawful manner. As requested and pursuant to Anders, we have reviewed the record for reversible error that would inure to Montoya's benefit, but have found none. The convictions and the sentences are therefore affirmed.