Opinion
1 CA-CR 12-0271
04-11-2013
STATE OF ARIZONA, Appellee, v. PETER ANTHONY MOYA, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Peter Anthony Moya 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(Not for Publication -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. CR2011-101846-001
The Honorable William L. Brotherton, Jr., Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix Peter Anthony Moya
Appellant
Tucson PORTLEY, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Peter Anthony Moya has advised us that, after searching the entire record, he has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant has taken the opportunity to file a supplemental brief.
FACTS
We view the facts "in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
¶2 The victim employed Defendant as a driver for a private taxi service. Under their verbal agreement, Defendant had permission to drive the service's 2003 Chevrolet Suburban to pick up fares. After Defendant failed to return the vehicle and other business property, he was subsequently indicted for unlawful use of means of transportation, a class five felony, and theft, a class one misdemeanor. ¶3 During the trial, the victim testified that Defendant was in charge of dispatching and picking up fares one weekend in November 2010. The victim, who was out of town, began receiving phone calls from customers who had not been picked up at their scheduled time. The victim spoke with Defendant on Saturday about the missed fares, but Defendant did not respond to any other phone calls or text messages from the victim during the rest of the weekend. The victim also told Defendant in several voice mail messages that he would report the vehicle as stolen if Defendant did not return it. ¶4 When the victim returned to Phoenix on Sunday, the vehicle had not been returned, and he discovered that a separate vehicle key, his computer, and $200 cash were missing from the office. Because Defendant did not respond to calls and texts, the victim reported that the items had been stolen. The vehicle was eventually located, but nothing else was recovered. ¶5 The jury convicted Defendant as charged. He was subsequently sentenced to a concurrent mitigated term of three years in prison and ordered to pay $1000 in restitution. We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013).
DISCUSSION
¶6 In his supplemental brief, Defendant contends that the evidence suggested that this would have been better resolved as a civil action rather than a criminal action. We disagree, and find no legal support for his argument. Moreover, we review his claim for fundamental error because he did not raise it in the trial court. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). ¶7 Although the victim could have sued Defendant for theft, fraud or other torts, he was not limited to only pursuing civil remedies. Instead, he told Defendant he would report the vehicle as stolen if it was not returned, and did so when he discovered that it had not been returned and other property was missing. The police then investigated the allegations, completed a report and forwarded it to the county attorney's office to determine whether to prosecute the Defendant for his behavior. The county attorney or his representative decided to proceed and prosecute the crimes, and we see no abuse of discretion because prosecutors have wide discretion in determining which cases to pursue. See State v. Lavers, 168 Ariz. 376, 398, 814 P.2d 333, 355 (1991). ¶8 Moreover, a grand jury found that there was probable cause to indict Defendant, and the petit jury found him guilty of both charges after listening to the evidence, being properly instructed and determining whether the facts that they found supported each element of both charges. There was, as a result, substantial evidence to support the convictions. Consequently, we find no error in the State's decision to prosecute. ¶9 We have also read and considered counsel's brief. We have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentences imposed were within the statutory limits. ¶10 Although the sentences were within the statutory limits, our review of the presentence calculation finds that the calculation is one day short. Defendant was on release conditions until those conditions were revoked and he was taken into custody on January 25, 2012. He remained in jail until he was sentenced on April 13, 2012. He was, as a result, in pretrial incarceration for 79 days, not 78 days. Consequently, we modify Defendant's sentences to reflect 79 days of presentence incarceration credit. See Ariz. R. Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494, 495-96, 844 P.2d 661, 662-63 (App. 1992) (correcting a miscalculation in presentence credit by modifying the sentence without remanding back to the trial court).
CONCLUSION
¶11 Accordingly, we affirm Defendant's convictions and sentences, but modify his presentence incarceration credit to reflect 79 days of credit. ¶12 After this decision is filed, counsel's obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant's future options, unless counsel identifies 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). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure.
______________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: ______________________
PATRICIA A. OROZCO, Judge
______________________
RANDALL M. HOWE, Judge