Opinion
No. 2 CA-CR 2013-0435
04-07-2014
THE STATE OF ARIZONA, Appellee, v. JORGE BORJON NAVARRO, Appellant.
Altfeld & Battaile P.C., Tucson By Robert A. Kerry 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20113772001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL
Altfeld & Battaile P.C., Tucson
By Robert A. Kerry
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Jorge Navarro was convicted after a jury trial of transfer of more than nine grams of methamphetamine for sale and sentenced to a partially-mitigated seven-year prison term. Counsel has filed a brief citing Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), asserting he has reviewed the record but found no arguable issue to raise on appeal.He asks this court to search the record for fundamental error. Navarro has filed a supplemental brief asking us to, in light of his cooperation with law enforcement, "allow [him] an op[p]ortunity [for] a lesser punishment." He further suggests the trial court erred in denying a motion to continue, thereby preventing his counsel from "properly represent[ing] [his] defense."
Counsel's compliance with Clark is debatable. That case requires that, upon reviewing a defendant's case and finding no arguable issue for appeal, counsel should file an Anders brief "contain[ing] a detailed factual and procedural history of the case, with citations to the record." Clark, 196 Ariz. 530, ¶ 30, 2 P.3d at 96. This process allows the court to "ascertain[] that counsel has conscientiously performed his or her duty to review the record." Id. ¶ 30. Although counsel provides a summary of the relevant procedural history and a recitation of the facts, we question whether it is sufficiently detailed to demonstrate counsel has thoroughly reviewed the record. And counsel altogether fails to discuss Navarro's sentence. We have reviewed the record and are satisfied that no arguable issues exist. Although we recognize counsel may have a large number of other cases demanding attention and we appreciate the conscientious work our criminal appellate practitioners generally provide for comparatively modest pay, we recommend counsel more thoroughly demonstrate his compliance with Clark in the future.
¶2 Viewing the evidence in the light most favorable to sustaining the verdict, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), sufficient evidence supports the jury's findings. After a meeting and several telephone calls to arrange the exchange, Navarro delivered approximately three pounds of methamphetamine to an undercover law enforcement officer. A.R.S. §§ 13-3401 (6)(c)(xxxiv), (36)(e); 13-3407(A)(7). Navarro's prison term is within the statutory limits and was properly imposed. A.R.S. §§ 13-702; 13-3407(B)(7), (E), (F).
¶3 As we noted above, Navarro requests that his punishment be reduced because of his alleged cooperation with federal law enforcement officers. But no evidence of his cooperation was presented to the trial court at sentencing. Absent some error by the trial court, we have no basis to disturb its sentencing discretion. See State v. Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d 263, 266 (App. 2007). And, to the extent Navarro argues the court erred by denying a motion to continue, we find no such denial in the record.
The parties agreed to preclude at trial any evidence that Navarro had acted as a confidential informant before or after the transaction forming the basis for his conviction. Neither party presented any evidence concerning his purported cooperation with law enforcement or suggested it was relevant to his sentence.
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¶4 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985). Accordingly, Navarro's conviction and sentences are affirmed.