Opinion
No. 2 CA-CR 2013-0264
10-08-2014
THE STATE OF ARIZONA, Appellee, v. EUGENE HAROLD PIETSCH III, Appellant.
COUNSEL Emily Danies, Tucson Counsel for Appellan
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NOT FOR PUBLICATION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. CR20111800001
The Honorable Scott Rash, Judge
AFFIRMED AS CORRECTED
COUNSEL
Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
VÁSQUEZ, Judge:
¶1 Following a jury trial, appellant Eugene Pietsch III was convicted of possession of a dangerous drug for sale in the amount of nine grams or more, money laundering in the second degree, possession of drug paraphernalia, and six counts of weapons misconduct—three for possession of a deadly weapon by a prohibited possessor and three for possession of a deadly weapon during the commission of a felony drug offense. The trial court found Pietsch had three or more historical felony convictions and sentenced him to concurrent and consecutive, presumptive prison terms totaling 19.5 years, with 361 days of presentence incarceration credit for all but the drug paraphernalia offense.
¶2 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 she has reviewed the record but found "[n]o arguable question of law" to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97, she has provided "a detailed factual and procedural history of the case with citations to the record" and has asked this court to search the record for fundamental error. Pietsch has not filed a supplemental brief.
¶3 Viewed in the light most favorable to sustaining the jury's verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence established that in May 2011, as part of an ongoing investigation, officers stopped a vehicle in which Pietsch was a passenger. They found a bag in the back seat of the vehicle containing three loaded guns, along with ammunition and magazines; a box inside a bag on the front passenger floor
containing three bags of methamphetamine with a total weight of 387 grams; and $1,205 in cash on Pietsch's person. We conclude ample evidence supported the jury's findings of guilt, see A.R.S. §§ 13-3407(A)(2), (B)(2), 13-3401(36)(e), 13-2317(B), 13-3102(A)(4), (8), 13-3415, and the sentences imposed are appropriate, see A.R.S. § 13-703(C), (J).
¶4 Although the indictment and the jury's verdict forms show Pietsch was charged with and found guilty of weapons misconduct based on one weapon for each related count, the sentencing order shows all three weapons as to each of the weapons misconduct counts, to wit, counts nine through fourteen. The sentencing order shall be corrected to show the specific weapon related to each of counts nine through fourteen, as reflected in the indictment and the jury's verdict forms. Specifically, counts nine and twelve shall be corrected to show only the Sig PS2202 handgun; counts ten and thirteen shall be corrected to show only the Glock 22 handgun; and, counts eleven and fourteen shall be corrected to show only the Walther P22 pistol. Cf. State v. Provenzino, 221 Ariz. 364, ¶¶ 25-26, 212 P.3d 56, 62 (App. 2009) (discrepancy between oral pronouncement of sentence and minute entry may be resolved by reference to record showing dispositive evidence of trial court's intent); State v. Lopez, 230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012) ("When we can ascertain the trial court's intent from the record, we need not remand for clarification.").
¶5 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985). Therefore, we affirm Pietsch's convictions and sentences but correct the sentencing order consistent with this decision.