Opinion
No. 1 CA-CR 12-0238
06-04-2013
STATE OF ARIZONA, Appellee, v. AHMED JAMAL SHIREH, Appellant.
Thomas C. Horne, Attorney General By Joe Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender ttorneys 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(Not for Publication -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 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-007436-001
The Honorable Sherry K. Stephens, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Joe Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Jeffrey L. Force, Deputy Public Defender
ttorneys 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 Ahmed Jamal Shireh's convictions of two counts of sexual abuse of a minor under 15 years of age, Class 3 felonies, and aggravated assault, a Class 6 felony. Shireh'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). Shireh was given the opportunity to file a supplemental brief, but he did not do so. After reviewing the entire record, we affirm Shireh's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 Shireh approached a 12-year-old girl as she walked to school one morning. The girl was frightened by Shireh, and crossed the street several times attempting to get away from him, but he continued to follow her. He eventually caught up to her and put his hand over her shoulder to prevent her from running away. He kissed her neck, fondled her breasts beneath her shirt and made lewd remarks to her. ¶3 The State charged Shireh with two counts of sexual abuse, one count of aggravated assault and one count of attempted sexual conduct with a minor, and alleged four historical prior felony convictions. The jury found Shireh guilty on the first three counts, but did not reach a verdict on the charge of attempted sexual conduct. ¶4 The court found Shireh had three historical prior felony convictions and that he was on parole at the time he committed the offenses. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-703(J) (West 2013), -708(C) (West 2013) (defendant must be sentenced to at least the presumptive term when offense committed while on parole). The court sentenced Shireh to two concurrent terms of 11.25 years on the two sexual abuse convictions, the presumptive sentence for a category three repetitive offender. See A.R.S. § 13-703(J), (N). The court imposed a concurrent 3.75-year sentence on the aggravated assault conviction, with 358 days of presentence incarceration credit applied to each of the sentences. ¶5 We have jurisdiction of Shireh's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A) (West 2013).
We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Shireh. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
Absent material revision after the date of the alleged offense, we cite a statute's current version.
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DISCUSSION
¶6 The record reflects Shireh received a fair trial. He was present and represented by counsel at all stages of the proceedings against him. The court held appropriate pretrial hearings. The court did not conduct a voluntariness hearing; however, the record does not suggest a question about the voluntariness of his statements introduced at trial. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶7 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of twelve members with two alternates. 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 unanimous verdicts, confirmed by juror polling, on the three counts of which Shireh was convicted. The court ordered a presentence report, but Shireh, on advice of counsel, did not speak with the report writer because the attempted sexual conduct charge could be retried. A presentence report was prepared on the basis of past reports and the court reviewed the report prior to sentencing. The court imposed legal sentences for the crimes of which Shireh was convicted. See A.R.S. § 13-703(J), (N). The court awarded Shireh all of the presentence incarceration credit to which he was entitled. See A.R.S. § 13-712(B) (West 2013).
CONCLUSION
¶8 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel's obligations pertaining to Shireh's representation in this appeal have ended. Defense counsel need do no more than inform Shireh 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, Shireh has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for reconsideration. Shireh has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
____________________________
DIANE M. JOHNSEN, Judge
CONCURRING: ____________________________
SAMUEL A. THUMMA, Presiding Judge
____________________________
MICHAEL J. BROWN, Judge