Opinion
No. 1 CA-CR 11-0824
05-02-2013
STATE OF ARIZONA, Appellee, v. MICHAEL CHARLES JOHNSON, Appellant.
Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee DeBrigida Law Offices, PLLC by Ronald M. DeBrigida, Jr. 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(Not for Publication -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. CR2010-162554-001
The Honorable Dawn M. Bergin, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Chief Counsel,
Criminal Appeals Section
Attorneys for Appellee
Phoenix DeBrigida Law Offices, PLLC
by Ronald M. DeBrigida, Jr.
Attorneys for Appellant
Glendale SWANN, Judge ¶1 Defendant Michael Charles Johnson timely appeals from his conviction of one count of theft of means of transportation. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so. ¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3In July 2010, Victim W.B. lent his white Ford F-150 truck to his ex-wife. They agreed that she would leave the truck at a Walgreens in Peoria, Arizona, as they had done on several prior occasions. Victim's ex-wife informed Victim that she had left the truck for him, but when Victim went to obtain the truck, it was not there. Victim reported the truck stolen to the police that afternoon. ¶4 In November 2010, Witness T.H. noticed Defendant working on the truck in the backyard of the home where he was living. When Witness asked Defendant what he was doing, Defendant responded that a manager of a hotel noticed the truck on the hotel's property and gave it to him. Witness's brother said that he had allowed Defendant to put the truck in the backyard, and Defendant was taking the truck "apart to sell." Because Witness believed that the truck looked too nice to be taken apart, he called the police and provided them with the truck's VIN number. ¶5 The police arrived on the scene and inspected the truck. While inspecting the truck's interior, police noticed a hole by the ignition. It appeared that the hole had been used to start the truck with a screwdriver, flat piece of metal, knife, or another thin instrument -- a common method for stealing a vehicle. The truck also had no license plate. The police then searched the VIN number of the truck, and the results of the search showed that it had been stolen. One of the police officers at the scene testified at trial that "no license plate, the VIN [coming] back stolen and punched ignition leads us to believe that the [truck] was stolen." The police proceeded to read Defendant his Miranda rights and arrest him. ¶6 On January 6, 2011, Defendant was indicted for the class 3 felony of Theft of Means of Transportation under A.R.S. § 13-1814(A), which provides that without lawful authority, Defendant knowingly "[c]ontrol[led] another person's means of transportation with the intent to permanently deprive the person of the means of transportation." (Count 1.) Defendant pled not guilty. ¶7 During a four-day trial, the evidence set forth above was presented. The jury found Defendant guilty of Count 1. During the aggravation phase of trial, the jury unanimously found unproven the issue whether "[t]he offense involved the taking of or damage to property in an amount sufficient to be an aggravating circumstance." In addition, the jury did not unanimously decide whether "[t]he Defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value." Therefore, the alleged aggravating circumstances were not proven. ¶8 At the sentencing hearing, the court found that the state proved its allegations of five of Defendant's prior convictions. Number 1: On August 30, 1997, Defendant committed the crime of possession or use of dangerous drugs, a class 4 non-dangerous felony; Number 2: On September 25, 1995, Defendant committed the crime of theft, a class six non-dangerous felony; Number 3: On September 17, 1993, Defendant committed the crime of possession or use of dangerous drugs, a class four non-dangerous felony; Number 4: On August 3, 2004, Defendant committed the crime of possession or use of dangerous drugs, a class four non-dangerous felony; Number 5: On May 15, 2006, Defendant committed the crime of possession or use of dangerous drugs, a class four non-dangerous felony. The court found that Number 1 and Number 4 were allegeable historical prior convictions because the convictions were Defendant's third and fourth prior felonies. Therefore, the court found that the state proved that Defendant had two historical and three non-historical prior felonies and sentenced Defendant as a category three repetitive offender. ¶9 The state did not pursue any past convictions as aggravators in the case. But the court determined that the state was permitted to use Number 5 as an aggravator because the offense had been committed within ten years. However, the court determined that the mitigating factors in the case outweighed the aggravating factor in the case, and therefore, Defendant received a super-mitigated sentence of 7.5 years of imprisonment and was credited with 76 days of time previously served. ¶10 Defendant timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The court found mitigating factors under A.R.S. §§ 13-701(E)(4) and (6).
DISCUSSION
¶11 The record reveals no fundamental error. Defendant was represented by counsel and was present at all critical proceedings. The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly composed of eight jurors and two alternates. See Ariz. R. Crim. P. 18.1(a); A.R.S. § 21-102(B). ¶12 The evidence that the state presented at trial was properly admissible. The state presented evidence that the truck had been stolen, that Defendant was in control of the truck, and that based on the condition of the truck, Defendant knew the truck had been stolen. A.R.S. § 13-1814. We conclude that the state's evidence was therefore sufficient to allow the jury to find Defendant guilty of Count 1. Id. ¶13The court, in its discretion, imposed a sentence of 7.5 years in prison. Pursuant to A.R.S. § 13-703(C), "a person shall be sentenced as a category three repetitive offender if the person . . . stands convicted of a felony and has two or more historical prior felony convictions." In this case, the court properly found that convictions Number 1 and Number 4 were historical prior felony convictions for the purposes of sentencing because they were Defendant's third and fourth prior felony convictions. A.R.S. § 13-105(22)(d). ¶14 The court then made the following finding:
[H]aving considered the one aggravator of a prior conviction within ten years, that aggravator is outweighed by the mitigators that I find here, which include a minor degree of participation in this crime.Further, the court found that Defendant had been responsible since he had been released from prison three years before and as all parties conceded, this crime "is not the crime of the century." Because the court found that the mitigating factors outweighed the aggravating factor (Number 5) and sentences, the court imposed a super-mitigated term. A.R.S. § 13-703(J). The court also correctly calculated Defendant's presentence incarceration credit of 76 days.
It was undisputed that Mr. Johnson did not steal this vehicle. And in terms of the way the evidence played out at trial, and I know he was found guilty, but there does seem to be some confusion about what he thought or what he believed to be the status of that vehicle.
CONCLUSION
¶15 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶16 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, he has 30 days from the date of this decision in which to file a motion for reconsideration.
____________________
PETER B. SWANN, Judge
CONCURRING: ____________________
PATRICIA A. OROZCO, Presiding Judge
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LAWRENCE F. WINTHROP, Chief Judge