Opinion
1 CA-CR 21-0383
04-05-2022
STATE OF ARIZONA, Appellee, v. BERNADETTE ANN DURAN, Appellant.
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee Janelle A. McEachern Attorney at Law, Chandler By Janelle A. McEachern Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR202001324 The Honorable Douglas Camacho, Judge Pro Tempore
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Peter B. Swann and Judge D. Steven Williams joined.
MEMORANDUM DECISION
BAILEY, JUDGE:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Bernadette Ann Duran filed a brief advising the court that, after searching the entire record, she is unable to discover any arguable question of law that is not frivolous and requesting that this court conduct an Anders review of the record. Duran was given the opportunity to file a supplemental brief in propria persona but did not do so. For the reasons that follow, we affirm Duran's convictions and sentences, but we correct the sentencing minute entry to reflect that the sentence for Count III is the minimum sentence.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2020, a highway patrol officer with the Arizona Department of Public Safety ("DPS") conducted a traffic stop of Duran on Interstate 15. While writing out a warning ticket, the officer asked Duran if she had any drugs in her possession. Duran admitted that she had methamphetamine and handed the officer a metal container from her pocket, which contained a substance that appeared to be methamphetamine. Duran also consented to a search of her car and told the officer that there was a box in the center console containing heroin. Duran told the officer she planned to sell the heroin and use the money to find a new place to live.
¶3 A forensic scientist for DPS confirmed the metal container contained 20.4 grams of methamphetamine and the box contained two bags of heroin, weighing 25.3 and 25.6 grams each.
¶4 A grand jury indicted Duran on Count I, possession of narcotic drugs for sale, a class 2 felony; Count II, transportation of narcotic drugs for sale, a class 2 felony; and Count III, possession of dangerous drugs (methamphetamine), a class 4 felony. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-3408(A)(2), -3408(A)(7), -3407(A)(1). The State later alleged the presence of several aggravating factors.
¶5 Before trial, the court observed that Count I was a lesser-included offense of Count II, and the State did not object to the court reading only Counts II and III to the jury. Duran was not present for trial and, accordingly, did not testify.
¶6 After a one-day trial, the jury found Duran guilty of Counts II and III. The jury then found two aggravators. With respect to Count II, the jury found that Duran committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. With respect to Counts II and III, the jury found that the aggregate amount of drugs involved in both offenses equaled or exceeded the statutory threshold amount under A.R.S. §§ 13-3401 (36)(a), (e) and 13-3420.
¶7 Because the State did not attempt to prove Duran's prior out-of-state felonies, she was sentenced as a first-time offender. Pursuant to the State's concession that Count I was a lesser-included offense of Count II, the trial court affirmed Count I's dismissal. The court sentenced Duran to the presumptive term of 5 years for Count II and credited her with 27 days of pre-sentence incarceration. As to Count III, the court sentenced Duran to a "mitigated" consecutive term of 1.5 years, followed by 11 months of community supervision.
The trial court's sentencing minute entry states that the sentence for Count III is "mitigated." However, a 1.5-year term of imprisonment constitutes a "minimum" sentence under A.R.S. § 13-702. Accordingly, we correct the trial court's sentencing minute entry to reflect that the sentence for Count III is a minimum sentence. See A.R.S. § 13-4036; State v. Ochoa, 189 Ariz. 454, 462 (App. 1997).
¶8 We have jurisdiction over Duran's timely appeal under Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶9 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 299-300; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Duran was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with her constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶10 After filing of this decision, defense counsel's obligations pertaining to Duran's representation in this appeal have ended. Counsel need do no more than inform Duran of the status of the appeal and of her future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Duran has thirty days from the date of this decision to proceed, if she desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶11 Duran's convictions and sentences are affirmed, and the court's sentencing minute entry is corrected to reflect that the sentence for Count III is a minimum sentence.