Opinion
2 CA-CR 2011-0250
03-22-2012
THE STATE OF ARIZONA, Appellee, v. ANGEL DAVID NUNEZ, Appellant.
Lori J. Lefferts, Pima County Public Defender By Frank P. Leto Tucson 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. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20104195001
Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
Lori J. Lefferts, Pima County Public Defender
By Frank P. Leto
Tucson
Attorneys for Appellant
BRAMMER, Judge.
¶1 After a jury trial, appellant Angel Nunez was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI) while his driver license was suspended or revoked. The trial court found Nunez had two historical prior felony convictions and sentenced him to enhanced, minimum, eight-year terms in prison, to be served concurrently.
The trial court found Nunez had prior felony convictions but did not expressly denominate them historical prior felony convictions. But our review of the state's allegations and exhibits, as well as the priors trial and sentencing hearing transcript, persuades us the court clearly found Nunez had two historical prior felony convictions, subjecting him to an "enhanced sentencing range." See A.R.S. §§ 13-105(22)(c), 13-703(J). Similarly, although the minute entry characterizes the sentences as "mitigated," as the court did at sentencing, the legislature now has denominated the term imposed as a "minimum" term under § 13-703(J). It nonetheless is clear from the record that the court was aware of the full range of sentences available and, in its discretion, determined eight-year terms were appropriate in light of the aggravating and mitigating circumstances considered at sentencing.
¶2 Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), avowing he has reviewed the record and found no arguable issue to raise on appeal. Consistent with Clark, he has provided "a detailed factual and procedural history of the case with citations to the record," 196 Ariz. 530, ¶ 32, 2 P.3d at 97, and asks this court to search the record for error. Nunez has not filed a supplemental brief.
¶3 We conclude substantial evidence supported the jury's verdicts. See A.R.S. §§ 28-1381(A)(1),(2); 28-1383(A)(1). Testimony established a Tucson police officer followed a vehicle he had observed travelling at approximately seventy-five miles per hour on city streets and, after the vehicle had been stopped by other police personnel, saw Nunez exit the driver's door. Officers testified that Nunez's speech had been slurred, his eyes watery and bloodshot, and he had carried the strong odor of alcohol. An analysis of his blood, taken pursuant to a search warrant within two hours of his driving, indicated an alcohol content of .209. Further testimony established Nunez previously had been served with notice that his driver license had been suspended and revoked, and it had remained in that status on the date of his arrest.
¶4 We further conclude substantial evidence supported the trial court's finding that Nunez had two historical prior felony convictions, subjecting him to an enhanced sentencing range as a category-three repetitive offender. See A.R.S. §§ 13-105(22)(c), 13-703(J). Nunez's sentences were authorized by statute and imposed in a lawful manner. See § 13-703(J).
¶5 In our examination of the record pursuant to Anders, we have found no reversible error and no arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, we affirm Nunez's convictions and sentences.
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J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
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JOSEPH W. HOWARD, Chief Judge
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PETER J. ECKERSTROM, Presiding Judge