Opinion
No. 1 CA-CR 12-0037
12-27-2012
STATE OF ARIZONA, Appellee, v. ANDREW PETER BETRO, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Office of the Legal Advocate By Colin F. Stearns, Deputy Legal Advocate Attorneys for Appellant
N OTICE: 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(Not for Publication -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
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2011-110105-001 DT
The Honorable Dawn M. Bergin, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Bruce Peterson, Office of the Legal Advocate
By Colin F. Stearns, Deputy Legal Advocate Attorneys for Appellant
Phoenix JOHNSEN, 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, 451 P.2d 878 (1969), following Andrew Peter Betro's conviction of burglary in the second degree, a Class 3 felony. Ariz. Rev. Stat. ("A.R.S.") § 13-1507 (West 2012). Betro's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Betro was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Betro's conviction and suspended sentence.
Absent material revisions after the date of an alleged offense, we cite a statute's current version.
FACTS AND PROCEDURAL HISTORY
¶2 Betro agreed to help a friend, Paul Erickson, take two safes from the victim's home and sell their contents. Betro and Erickson were friends with the victim's sons and in the past had been in the victim's home. At the scene, Erickson directed Betro to "keep [his] eyes open" and look for a white diesel truck owned by the victim; Betro complied and kept watch while Erickson removed the safes. They then met at Betro's home and opened the safes with hammers. They found several items inside, including a handgun and pieces of jewelry, which Betro took to hide at his parents' house so his wife did not discover them. When police eventually contacted Betro, he admitted his involvement in the burglary. A consensual search of his parents' home produced the handgun and jewelry the victim said were inside the safes. ¶3 Betro was charged with one count of burglary in the second degree. The State alleged he was criminally accountable as an accomplice by aiding, agreeing or attempting to aid, or providing means or opportunity for Erickson to commit the burglary. During trial, a redacted version of Betro's videotaped confession was played for the jury and admitted in evidence. Additionally, Betro testified that he agreed to get the safes and sell their contents, but that Erickson made him believe the items belonged to the victim's sons, who had given Erickson permission to sell them. Betro also testified, however, that he knew the safes themselves belonged to the victim. ¶4 The jury found Betro guilty as charged and found the existence of three aggravating circumstances. The court suspended imposition of sentence, placed Betro on supervised probation for three years and imposed a deferred jail term of six months. Betro also stipulated to paying $400 in restitution. ¶5 Betro timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-120.21(A)(1) (West 2012), 13-4031 (West 2012) and -4033(A)(1) (West 2012).
We review the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Betro. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998) (quotation omitted).
--------
DISCUSSION
¶6 The record reflects Betro received a fair trial. He was represented by counsel and was present at all critical stages of the proceedings against him. The court held appropriate pretrial hearings. It did not conduct a voluntariness hearing; however, the record did not raise a question about the voluntariness of Betro's statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶7 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with one alternate. The court properly instructed the jury on the elements of the charges, the State's burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal term of probation for the crime of which Betro was convicted. See A.R.S. §§ 13-702(D) (West 2012), -902(A)(2) (West 2012).
CONCLUSION
¶8 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶9 After the filing of this decision, defense counsel's obligations pertaining to Betro's representation in this appeal have ended. Defense counsel need do no more than inform Betro 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, Betro has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Betro has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
________
DIANE M. JOHNSEN, Judge
CONCURRING: ________
PATRICIA K. NORRIS, Presiding Judge
________
JON W. THOMPSON, Judge