Opinion
No. 2 CA-CR 2018-0306
05-14-2019
THE STATE OF ARIZONA, Appellee, v. ANGEL S. ARRELLIN, Appellant.
COUNSEL James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, 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NOT FOR PUBLICATION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. CR20175024001
The Honorable Jeffrey T. Bergin, Judge
AFFIRMED AS CORRECTED
COUNSEL James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Following a jury trial, appellant Angel Arrellin was convicted of driving while under the influence (DUI) and of driving with a blood alcohol concentration (BAC) of .08 or more. The trial court suspended the imposition of sentence and placed Arrellin on concurrent, five-year terms of probation. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297 (1969), and State v. Clark, 196 Ariz. 530 (App. 1999), stating he has reviewed the record and has been unable to find any "tenable issue" to raise on appeal and asking us to search the record for "any potential error." Consistent with Clark, 196 Ariz. 530, ¶ 32, he has provided "a detailed factual and procedural history of the case with citations to the record." Arrellin has not filed a supplemental brief.
¶2 Viewed in the light most favorable to sustaining the verdicts, see State v. Delgado, 232 Ariz. 182, ¶ 2 (App. 2013), the evidence is sufficient to support the jury's findings of guilt, see A.R.S. § 28-1381(A)(1), (A)(2), (C). The evidence presented at trial showed that in October 2017, deputies stopped the vehicle Arrellin was driving for a traffic violation; they observed that Arrellin had a wet spot on his jeans, exhibited moody behavior, had a "strong odor of intoxicants," and had "red, watery, and bloodshot" eyes. The deputies saw a can of beer in the center console of Arrellin's vehicle in addition to one between the console and the driver's seat that was still cold to the touch, and a blood test established his BAC was .224. We further conclude the terms of probation are within the statutory range and were imposed in a lawful manner. See A.R.S. § 13-902(B)(1).
We cite the current version of the statutes in this decision, as they have not changed in relevant part since Arrellin committed his offenses.
A criminalist testified that based on retrograde analysis Arrellin's BAC had been "about a 0.226" within two hours of driving. --------
¶3 The state charged Arrellin with aggravated DUI and aggravated driving with a BAC of .08 or more. The state alleged as to each that, at the time of the offense, his driver license had been suspended or revoked and each charge was identified as a class four felony. The jury found Arrellin guilty of only the lesser-included offenses for each, but did not find that he committed either crime while his driver license had been suspended or revoked. Consequently, each conviction was for a class one misdemeanor only. At the sentencing hearing, as to the second charge, the trial court mistakenly began to state the conviction for the greater offense, but stopped short and corrected itself:
And you are also guilty of Count Two, Driving with an Alcohol Concentration of 0.08 or More While License is Suspended—I don't believe that's accurate. . . . I caught myself on that because I remember the verdict. Guilty of the lesser-included offense of Driving with an Alcohol Concentration of 0.08 or More, also a Class One Misdemeanor . . . .Notwithstanding, the initial sentencing order also incorrectly stated as to that charge that Arrellin had been convicted of the greater offense, a class four felony. The trial court subsequently amended the original sentencing order to show that Arrellin had been convicted of a class one misdemeanor rather than a class four felony, but failed to remove the language stating the offense had occurred while his license was suspended or revoked. We thus correct the sentencing orders to reflect that, as to the second charge, Arrellin was convicted of driving with a BAC of .08 or more, as reflected in the jury's verdict and the trial court's corrected oral pronouncement in the sentencing transcript. See State v. Ovante, 231 Ariz. 180, ¶ 38 (2013) (discrepancy between oral pronouncement of sentence and written minute entry generally controlled by oral pronouncement, and reviewing court will correct minute entry if record clearly identifies intended sentence).
¶4 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. Accordingly, we affirm Arrellin's convictions and the terms of probation but correct the sentencing orders to reflect that he was convicted of driving with a BAC of .08 or more, deleting the language "while license is suspended or revoked."