Opinion
No. 1 CA-CR 17-0367
06-28-2018
STATE OF ARIZONA, Appellee, v. DREW IAN MULL, Appellant.
COUNSEL Law Offices of Stephen L. Duncan, Scottsdale By Stephen L. Duncan Counsel for Appellant Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-005923-001
The Honorable Alfred M. Fenzel, Judge (Retired)
AFFIRMED
COUNSEL Law Offices of Stephen L. Duncan, Scottsdale
By Stephen L. Duncan
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. MORSE, Judge:
¶1 Drew Ian Mull appeals his conviction and sentence for one count of aggravated assault, a class three felony, and three counts of attempted armed robbery, class three felonies. After searching the entire record, Mull's defense counsel identified no arguable question of law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this court to search the record for fundamental error. Mull was also allowed to file a supplemental brief in propria persona but did not do so. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the convictions with all reasonable inferences resolved against the defendant." State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (citation omitted). --------
¶2 On August 24, 2014, Mull arranged a marijuana deal with victim U.M. to take place in the parking lot of a mosque in Phoenix. Mull and his accomplices arrived first and waited for U.M. One of Mull's accomplices had an assault-style rifle. U.M. arrived in a car with four other people. Initially, Mull approached U.M.'s car and engaged in small talk. Then Mull said that he needed to retrieve his wallet and went back toward his own vehicle. When Mull returned to U.M.'s car, he pulled out a revolver, pointed it at U.M., and said something about being sorry. When U.M. tried to put his car into reverse, Mull fired the revolver, and hit U.M. in the chest. Although U.M. did not recall Mull making any demands, other occupants of U.M.'s car testified that Mull apologized, but asked them to get out of the car and hand over their money and belongings.
¶3 Mull was charged via indictment with one count of aggravated assault and four counts of attempted armed robbery. Mull pled not guilty to the charges and rejected a plea agreement tendered by the State. At trial, the victims testified under immunity agreements and one of the accomplices testified pursuant to a plea agreement. The doctor who treated U.M. also testified that the wound could have been fatal; the bullet had hit U.M. in the chest, struck one of U.M.'s ribs, and deflected to the subcutaneous fatty tissue behind the kidneys. The jury found Mull guilty of aggravated assault and three counts of attempted armed robbery, and not guilty of the fourth count of attempted armed robbery.
¶4 After the jury verdict, Mull admitted that the offenses were dangerous because they involved the use of a weapon, and admitted to one aggravating factor, i.e., that the offenses involved the presence of an accomplice. The court conducted a colloquy with Mull to ensure that these admissions were knowing and voluntary. The State dismissed the remaining allegations of aggravating factors.
¶5 Mull was sentenced to aggravated terms of 10.5 years in prison for each count, concurrent with each other. Mull was given credit for 517 days of presentence incarceration.
DISCUSSION
¶6 Our review reveals no fundamental error. See Leon, 104 Ariz. at 300 ("An exhaustive search of the record has failed to produce any prejudicial error."). The proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record reveals that Mull was represented by counsel at all critical stages and was either present, or his presence was waived by counsel, at all critical stages of the proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages).
¶7 The jury was properly comprised of twelve jurors and two alternates, and the record shows no evidence of juror misconduct. See Ariz. Rev. Stat. ("A.R.S.") § 21-102(B); Ariz. R. Crim. P. 18.1(a). The trial court properly instructed the jury on the elements of the charged offense, the State's burden of proof, the necessity of a unanimous verdict, and the presumption of innocence. After he was apprised of his right to a trial and the sentencing consequences, Mull knowingly admitted dangerousness, and an aggravating-factor allegation. See State v. Martinez, 210 Ariz. 578, 585, ¶ 26 (2005) (noting that a defendant's admissions can establish sentencing allegations to increase the applicable sentencing range).
¶8 The court received a presentence report. At sentencing, Mull was given an opportunity to speak, and the court explained the basis for imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10. Additionally, the trial court imposed an appropriate sentence within the statutory limits. See A.R.S. §§ 13-704(A), 13-708(A) and (D).
CONCLUSION
¶9 Mull's conviction and sentence are affirmed. Defense counsel's obligations pertaining to Mull's representation in this appeal have ended. Defense counsel need do no more than inform Mull of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate to submit to our supreme court for further review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶10 Mull has thirty days from the date of this decision to proceed, if he wishes, with an in propria persona motion for reconsideration or petition for review.