Opinion
No. 1 CA-CR 11-0176
01-24-2012
STATE OF ARIZONA, Appellee, v. BARRY ROBINSON, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR2010-130563-001 DT
The Honorable Lisa Daniel Flores, Judge
CONVICTION AND SENTENCE AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Thomas K. Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix JOHNSEN, Judge
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Barry Robinson's conviction of burglary in the third degree, a Class 4 felony. Robinson's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Robinson was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Robinson's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 A couple saw someone jump over their neighbor's backyard fence into the alley, pick up a bag of copper tubing lying in the alley and ride away on a bicycle. The couple heard water running and saw that water was flowing from their neighbor's water heater into his backyard. They called police, who apprehended Robinson riding his bicycle nearby. In his possession, Robinson had pipes that matched those stolen from the water heater. One of the neighbors identified Robinson as the man he saw riding away down the alley.
Upon review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against Robinson. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 At trial, Robinson testified he had been collecting scrap metal on his bicycle, found the pipes abandoned and picked them up to take to a scrap yard. The jury found Robinson guilty of burglary in the third degree. At sentencing, the superior court found Robinson had been convicted of three prior felonies, one of which was an historical prior felony conviction. The court imposed a mitigated sentence of three years in prison.
¶4 Robinson timely appealed. We have jurisdiction 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 (2011).
DISCUSSION
¶5 The record reflects Robinson received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. Pursuant to Arizona Rule of Evidence 609, the court held a hearing on Robinson's prior convictions and sanitized his prior felony convictions. After a hearing pursuant to State v. Dessureault, 104 Ariz. 380, 383-84, 453 P.2d 951, 954-55 (1969), the court denied Robinson's motion to suppress the witness's identification of him. The court also denied Robinson's motion to suppress evidence and statements allegedly obtained from an illegal search and seizure.
¶6 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly composed of eight members. The court properly instructed the jury on the elements of the charges, the State's burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal sentence for the crime of which Robinson was convicted.
CONCLUSION
¶7 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶8 After the filing of this decision, defense counsel's obligations pertaining to Robinson's representation in this appeal have ended. Defense counsel need do no more than inform Robinson of the outcome of this appeal and his future options, unless, upon review, counsel finds "an issue appropriate for submission" to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, Robinson has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Robinson has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
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DIANE M. JOHNSEN, Presiding Judge
CONCURRING: ____________
PATRICIA A. OROZCO, Judge
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LAWRENCE F. WINTHROP, Judge