Opinion
No. 1 CA-CR 16-0402
12-29-2016
STATE OF ARIZONA, Appellee, v. TIMOTHY GENE BAUMGARDNER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph Maziarz Counsel for Appellee Mohave County Legal Defender's Office, Kingman By Eric Devany 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CR201400431
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph Maziarz
Counsel for Appellee Mohave County Legal Defender's Office, Kingman
By Eric Devany
Counsel for Appellant
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined. McMURDIE, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel has filed a brief in compliance with Anders, 386 U.S. 738 stating he has reviewed the record and found no arguable questions of law to raise on appeal. As a result, counsel has filed an opening brief asking this court to conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propia persona, but has not done so.
FACTS AND PROCEDURAL BACKGROUND
¶2 On February 12, 2014 Mohave County Sheriff's Department patrol sergeant Brandon Lawrence received a phone call from the owner of Music Mountain Ranch reporting that someone was stealing his water pipe. Sergeant Lawrence proceeded to Music Mountain Ranch and made contact with Defendant. Sergeant Lawrence asked Defendant what he was doing and Defendant stated he was picking up water pipe.
¶3 Defendant was charged with three counts of trafficking in stolen property, a class two felony; criminal damage, a class five felony; theft, a class one misdemeanor; and possession of marijuana, a class six felony. He pled not guilty, was appointed counsel, and the case went to trial. The State presented its case after which Defendant moved for a directed verdict pursuant to Arizona Rule of Criminal Procedure 20. The superior court denied the motion.
¶4 Defendant testified on his own behalf, and admitted to taking pipe from Music Mountain Ranch on three separate occasions. Defendant brought pipe to SA Recycling on January 10, 2014, January 13, 2014, and February 7, 2014, receiving a total of $293. The jury convicted Defendant of theft, a class one misdemeanor, and two counts of trafficking in stolen property in the second degree, a class three felony.
Prior to trial, the State moved to dismiss with prejudice the count of criminal damage and possession of marijuana. Defendant was found not guilty on the third count of trafficking in stolen property that was alleged to have occurred on February 7, 2014.
¶5 The superior court suspended the imposition of sentence and placed Defendant on four years probation. The court imposed a 90 day in jail term as a condition of probation with one day of presentence incarceration credit. Defendant timely filed a notice of appeal. 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 13-4033(A)(1).
Absent material revisions after the relevant date, we cite to the current version of the statute. --------
¶6 We have read and reviewed counsel's Anders brief and we have searched the entire record for fundamental error. See Leon, 104 Ariz. at 300. We find none. The record reveals that Defendant was represented by counsel at all stages of the proceedings and all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. A jury was selected and we find no improprieties in the selection or empaneling. The jury was properly instructed, and the final instruction correctly stated the law and covered all relevant areas to ensure that the jury had the information necessary to reach a legally correct decision. See State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8 (2005). Finally, Defendant's sentence was within the statutory limits. See Leon, 104 Ariz. at 300.
¶7 Therefore, counsel's obligation to represent Defendant has ended. Counsel must only inform Defendant as to the status of the appeal and future options. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
CONCLUSION
¶8 Accordingly, we affirm Defendant's convictions and sentences.