Opinion
No. 2 CA-CR 2017-0017
08-30-2017
THE STATE OF ARIZONA, Appellee, v. ISAIAH CLIFFORD LEWIS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201501534
The Honorable Kevin D. White, Judge
AFFIRMED AS CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard concurred. ECKERSTROM, Chief Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 Following a jury trial, appellant Isaiah Lewis was convicted of two counts of possession of more than four pounds of marijuana, possession of marijuana, and possession of drug paraphernalia. At sentencing, the trial court "merge[d]" the convictions "for purposes of punishment," suspended the imposition of sentence, and placed Lewis on a three-year term of probation. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating she has reviewed the record and "has found no arguable issues" to raise on appeal. Counsel asked us to search the record for fundamental error, and Lewis did not file a supplemental brief.
¶2 Viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury's finding of guilt. See State v. Delgado, 232 Ariz. 182, ¶ 2, 303 P.3d 76, 79 (App. 2013). The evidence presented at trial showed Lewis had been the rear-seat passenger in a car, sitting next to three bales of marijuana, totaling 68.68 pounds, which were under a blanket. A small amount of marijuana was also found in his pocket, wrapped in a receipt, and he admitted having known the marijuana was present and having covered it with the blanket.
¶3 However, after our review of the record, this court ordered additional briefing, pursuant to Penson v. Ohio, 488 U.S. 75 (1988). We asked counsel for the parties to address whether Lewis could be convicted of multiple counts of possession of marijuana in light of State v. Chabolla-Hinojosa, 192 Ariz. 360, 965 P.2d 94 (App. 1998), and whether the trial court's decision to "merge" the convictions "for purposes of punishment" was sufficient to cure any error. Lewis asserts that the trial court had "merged [the convictions] into one single felony conviction," and therefore believed there was no error. The state agrees that "the trial court did apparently merge" the convictions, and concedes that, in any event, "such merger is required." We therefore order the court's minute entry amended to clarify that counts two and three are vacated and that Lewis's concurrent terms of probation are served on Count 1, possession of marijuana, more than four pounds, and Count 4, possession of drug paraphernalia. We otherwise conclude the probationary terms are within the statutory limit and were properly ordered. See A.R.S. §§ 13-902(A)(3),(4), 13-3405(A), (B)(3), 13-3415(A).
¶4 In accordance with the above correction, we affirm Lewis's convictions for one count of possession of marijuana having a weight of four pounds or more and for one count of possession of drug paraphernalia and the related terms of probation.