Opinion
No. 1 CA-CR 16-0768
10-17-2017
STATE OF ARIZONA, Appellee, v. ALEJANDRO HERNANDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Bain & Lauritano, PLC, Glendale By Sheri M. Lauritano 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
CR2012-161718-001
The Honorable Peter C. Reinstein, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined. THUMMA, Chief 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 appellant Alejandro Hernandez has advised the court that, after searching the entire record, she has found no arguable question of law and asks this court to conduct an Anders review of the record. Hernandez was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and has found no reversible error. Accordingly, Hernandez' convictions and resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
¶2 In December 2012, police officers responded to a 911 call reporting two individuals fighting in a vehicle. The officers located the vehicle outside of a cell phone store with a woman sitting in the passenger seat crying. Officers located Hernandez, identified as the car's driver, inside the store and asked him to step outside. Officers smelled burning marijuana coming from the vehicle. Hernandez denied there were illegal drugs inside the vehicle, but one officer noticed Hernandez appeared to be nervous. Officers searched the vehicle and found a bag of what appeared to be methamphetamine and crack cocaine, along with multiple small plastic bags and a black ledger.
¶3 Hernandez was arrested and charged by indictment with: (1) sale or transportation of dangerous drugs, a Class 2 felony; (2) sale or transportation of narcotic drugs, a Class 2 felony; and (3) possession of drug paraphernalia, a Class 6 felony. The State timely alleged Hernandez had prior felony convictions on various dates, including as relevant here, one conviction for possession of drug paraphernalia, one conviction for forgery and two convictions for misconduct involving weapons.
¶4 Hernandez moved to suppress, claiming officers lacked probable cause to search his vehicle without a warrant. The court denied the motion, stating that the smell of burning marijuana provided officers probable cause to conduct the warrantless search. Hernandez later unsuccessfully sought reconsideration.
¶5 While awaiting trial, Hernandez was charged with five unrelated drug offenses. In November 2015, Hernandez accepted a plea offer after a hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000). Before sentencing, however, Hernandez filed a motion to withdraw from the plea. The court initially denied the motion, but after Hernandez testified that he lied at his change of plea hearing because he believed it was the only way to obtain a global resolution of all charges, the court allowed him to withdraw.
¶6 After pretrial disclosure and additional motion practice, a five-day jury trial was held in January 2016. The State requested a hearing pursuant to Arizona Rule of Evidence 609 (2017), which was held on the fourth day of trial. By that time, the State had narrowed its motion by excluding the possession of drug paraphernalia conviction, which was more than ten years old. The court found that the remaining convictions could be used to impeach Hernandez if he elected to testify.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
¶7 During trial, the State offered testimony from the police officers who searched Hernandez' vehicle, as well as criminalists who analyzed the substances found in the vehicle, text messages from Hernandez' phone and fingerprint evidence. After the State rested, Hernandez unsuccessfully moved for a judgment of acquittal on all counts. See Ariz. R. Crim. P. 20.
¶8 Hernandez, as was his right, elected not to testify. After the jury was instructed on the law and heard closing arguments, they deliberated and found Hernandez guilty as charged. The jurors were then individually polled, confirming these were their true verdicts. After hearing arguments during the aggravation phase, the jury found the State proved the alleged aggravators of pecuniary gain and possession of drugs over the threshold amount.
¶9 Before sentencing, the court received a pre-sentence report and recommendation. At sentencing, the court found aggravating factors of prior convictions and pecuniary gain, and mitigating factors of nonviolent priors and aggravation built into the sentence. The court sentenced Hernandez to slightly aggravated concurrent terms of 16 years in prison for the sale or transportation of dangerous and narcotic drugs convictions, non-dangerous but repetitive offenses, and to a concurrent presumptive term of 3.75 years in prison for the possession of drug paraphernalia conviction, a non-dangerous but repetitive offense, and properly awarded Hernandez 1,342 days of pre-sentence incarceration credit. This court has jurisdiction over Hernandez' timely appeal pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶10 The record shows that Hernandez was represented by counsel at all stages of the proceedings and counsel was present at all critical stages. The record provided contains substantial evidence supporting Hernandez' convictions and resulting sentences. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentences imposed were within statutory limits and permissible ranges.
CONCLUSION
¶11 This court has read and considered counsel's brief, and has searched the record provided for reversible error and has found none. Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). Accordingly, Hernandez' convictions and resulting sentences are affirmed.
¶12 Upon the filing of this decision, defense counsel is directed to inform Hernandez of the status of the appeal and of his future options. Defense counsel has no further obligations unless, upon review, counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Hernandez shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.