Opinion
No. 1 CA-CR 17-0528
05-01-2018
STATE OF ARIZONA, Appellee, v. STEVEN MAYNARD WASHINGTON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Jesse Finn Turner 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-138524-001
The Honorable Richard L. Nothwehr, 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 Jesse Finn Turner
Counsel for Appellant
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined. BEENE, Judge:
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969) following Steven Maynard Washington's ("Washington") conviction for misconduct involving weapons, a class 4 felony. Washington's counsel searched the record on appeal and found no arguable question of law that is not frivolous. See State v. Clark, 196 Ariz. 530 (App. 1999). Counsel now asks us to search the record for fundamental error. After reviewing the entire record, we affirm Washington's conviction and sentence.
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 n.2, ¶ 2 (App. 2015) (citation omitted).
¶2 At approximately 1:00 a.m. on August 13, 2016, Officers Robles and McDowell were working an off-duty shift as security at a bar. Officers observed Washington come out from the bar holding a pitcher of beer, which was against the bar's policy. Officers told Washington to stop and retrieved the pitcher from him. At that point, the bar's bouncer yelled to the officers that Washington had a gun. A few minutes earlier, the bouncer saw Washington with a gun inside the bar and followed him outside when Washington did not comply with orders to leave. As Washington walked away, officers told him to stop, but he walked faster, weaving in and out of cars. Officers drew their weapons, told Washington to stop and to keep his hands away from his waistband. Washington complied. Officers placed Washington in handcuffs and found a loaded gun sticking out from his pants pocket.
¶3 Washington was charged with one count of misconduct involving weapons as a prohibited possessor, a class 4 felony. He was tried in absentia and found guilty. The State proved that Washington had at least two prior felony convictions and was on probation at the time of the offense. He was sentenced as a non-dangerous, repetitive offender to a term of 10 years' incarceration, to be served consecutive to his violation of probation. Washington timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶4 The record reflects no fundamental error in pretrial or trial proceedings. Washington was represented by counsel at all critical stages in the proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages). The superior court conducted a Donald hearing in Washington's presence. While Washington was not present at trial, when he was released prior to trial, he was advised that the proceedings would go forward in his absence if he did not appear, and Washington has not claimed that his absence was involuntary. See State v. Reed, 196 Ariz. 37, 38, ¶ 3 (App. 1999); see also Ariz. R. Crim. P. 9.1.
State v. Donald, 198 Ariz. 406 (App. 2000).
¶5 The jury was properly composed of eight members and two alternates, and the record shows no evidence of jury misconduct. See Ariz. Const. art. 2, § 23; A.R.S. § 21-102 (jury shall consist of eight persons for any criminal case except for case in which sentence of death or imprisonment for thirty years or more is authorized); Ariz. R. Crim. P. 18.1(a). The State presented direct and circumstantial evidence sufficient for a reasonable jury to convict. The court properly denied Washington's motion for a directed verdict and appropriately instructed the jury on the elements of the charges. The key instructions concerning burden of proof, presumption of innocence, reasonable doubt, and the necessity of a unanimous verdict were properly administered. The jury returned a unanimous guilty verdict.
¶6 The superior court received a presentence report, accounted for aggravating and mitigating factors, and provided Washington, now present, an opportunity to speak at sentencing. The court properly sentenced Washington to a term of 10 years' incarceration for the misconduct involving weapons conviction and one-year incarceration, with 233 days of presentence incarceration credit, for the violation of probation to be served consecutively.
CONCLUSION
¶7 We have reviewed the entire record for reversible error and find none; therefore, we affirm the convictions and resulting sentences.
¶8 After the filing of this decision, defense counsel's obligation pertaining to Washington's representation in this appeal will end. Defense counsel need do no more than inform Washington of the outcome of this appeal and his future options, unless, upon review, counsel finds "an issue appropriate for submission" to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's own motion, Washington has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Further, Washington has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.