Opinion
1 CA-CR 12-0540
05-30-2013
STATE OF ARIZONA, Appellee, v. ALPHONSO CHAVEZ, JR., Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Attorneys for Appellee Bruce F. Peterson, Maricopa County Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate 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(Not for Publication - Rule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 Arizona
Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-141180-001
The Honorable Jo Lynn Gentry-Lewis, Judge
AFFIRMED AS CORRECTED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals
Attorneys for Appellee
Phoenix Bruce F. Peterson, Maricopa County Legal Advocate
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Appellant
Phoenix NORRIS, Judge ¶1 Alphonso Chavez, Jr., timely appeals from his conviction and sentence of one year of unsupervised probation for possession or use of marijuana, a class one misdemeanor. Ariz. Rev. Stat. ("A.R.S.") §§ 13-3401, -3405 (Supp. 2012). After searching the record on appeal and finding no arguable question of law that was not frivolous, Chavez's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Chavez to file a supplemental brief in propria persona, but Chavez did not to do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Chavez's conviction and sentence.
Although the Arizona Legislature amended certain statutes cited in this decision after the date of Chavez's offense, the revisions are immaterial. Thus, we cite to the current version of these statutes.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Chavez. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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¶2 On June 3, 2011, four detectives from the Violent Offender Unit and the U.S. Marshal Task Force were driving by a house "well-known" for criminal activity. One detective recognized a man who had been previously involved with drugs -- K.M. The detective checked to see if K.M. had an outstanding warrant, which he did. All four officers, dressed in plain clothes, except for their ballistic vests, which were embossed with "Police" or "U.S. Marshal," exited their unmarked car, and two detectives arrested K.M. ¶3 Another detective walked up to Chavez, who was standing a few feet away from K.M. The detective started to talk to Chavez and asked Chavez if he could search him, and Chavez said he could. The search revealed nothing. The detective then asked Chavez if he could search the truck Chavez had been driving. Chavez responded by removing the lanyard from his neck which held the truck's key and handing it to the detective. The detective searched the truck's cab, but found nothing. ¶4 The detective then saw a backpack in the bed of the truck and after Chavez confirmed the backpack was his, the detective asked Chavez for permission to search it. Chavez responded: "go ahead." The detective discovered what turned out to be a baggie of marijuana inside the backpack. The detective read Chavez his Miranda rights. And in response, Chavez said he understood his rights and would voluntarily answer questions. Chavez first told the detective the marijuana was his, but then stated he had found it and did not know how it ended up in his backpack. Chavez also told the detective he smoked marijuana once or twice a day. ¶5 Before trial, Chavez moved to suppress the marijuana, arguing the detective unconstitutionally stopped and searched him, and coerced his consent to the search. The superior court denied his motion, finding Chavez's encounter with the detective did not amount to a seizure and, further, Chavez's consent to the searches was "freely and voluntarily given."
DISCUSSION
¶6 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Chavez received a fair trial. He was represented by counsel at all stages of the proceedings. Although Chavez was absent for the suppression hearing -- because of car trouble -- he was present at all other critical stages. ¶7 The evidence presented at trial was substantial and supports the verdict. Chavez was given an opportunity to speak at sentencing and his sentence was within the range of acceptable sentences for his offense. See A.R.S. § 13-3405(B)(1) (Supp. 2012) (person who possesses or uses marijuana weighing less than two pounds is guilty of class six felony); A.R.S. § 13-604 (2010) (class six felony may be designated as class one misdemeanor); A.R.S. § 13-707 (2010) (class one misdemeanor is punishable by six months of imprisonment); A.R.S. § 13-901.01(A) (2010) (person convicted of personal possession of controlled substance is eligible for probation); A.R.S. § 13-902(A)(5) (Supp. 2012) (for class one misdemeanor, probation may continue for three years). ¶8 Although the sentencing minute entry states Chavez "knowingly, intelligently and voluntarily waived the right to a trial by jury," the record contains no evidence of any such waiver. Chavez was not, however, entitled to a jury trial because he was charged with a class one misdemeanor, which was "punishable by no more than six months incarceration." A.R.S. § 13-707; Derendal v. Griffith, 209 Ariz. 416, 418-19, ¶ 6, 422, ¶ 21, 104 P.3d 147, 149-50, 153 (2005) (criminal offense for which maximum statutory penalty is less than six months of incarceration is presumptively offense for which right to jury trial does not attach). Nevertheless, we correct the sentencing minute entry to delete the following: "WAIVER OF JURY TRIAL: The Defendant knowingly, intelligently and voluntarily waived the right to a trial by jury."
CONCLUSION
¶9 We decline to order briefing and affirm Chavez's conviction and sentence. ¶10 After the filing of this decision, defense counsel's obligations pertaining to Chavez's representation in this appeal have ended. Defense counsel need do no more than inform Chavez 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, 684 P.2d 154, 156-57 (1984). ¶11 Chavez has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Chavez 30 days from the date of this decision to file an in propria persona motion for reconsideration.
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PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ________________
ANDREW W. GOULD, Judge
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RANDALL M. HOWE, Judge