Opinion
No. 1 CA-CR 13-0397
01-21-2014
State of Arizona, Plaintiff/Appellee, v. Michael L. Stevenson, Defendant/Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Plaintiff/Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Defendant/Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-135598-001
The Honorable Jeanne Garcia, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Plaintiff/Appellee
Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined. JONES, Judge:
¶1 Michael Stevenson timely appeals from his convictions and sentences for possession for sale of narcotic drugs, a class two felony (count one), and possession of drug paraphernalia, a class six felony (count two). Ariz. Rev. Stat. (A.R.S.) §§ 13-3408, -3415 (2013). After searching the record on appeal and finding no arguable question of law that was not frivolous, Stevenson's defense counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. Stevenson has been afforded an opportunity to file a supplemental brief in propria persona, and he has done so.
Stevenson's supplemental brief raises three separate arguments of ineffective assistance of counsel. This court will not, however, consider claims of ineffective assistance of counsel on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) ("[W]e reiterate that ineffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit.").
Background
We view the evidence in the light most favorable to upholding the jury's verdict. State v. Tamplin, 195 Ariz. 246, 246, ¶ 2, 986 P.2d 914, 914 (App. 1999).
¶2 On July 4, 2012, Officer James McDowell was "flagged down" by a woman and alerted to a maroon Cadillac that Stevenson was driving. Officer McDowell began following the Cadillac and witnessed it commit several traffic violations, prompting Officer McDowell to initiate a traffic stop and request another officer respond to the scene.
¶3 During the stop, Officer McDowell noticed several indicators of impairment from Stevenson, such as accelerated speech, bloodshot and watery eyes, and dilated pupils. Officer McDowell conducted a DUI investigation and asked Stevenson to perform a field sobriety test, and Stevenson complied. During this test, Officer McDowell noticed Stevenson's eyelids tremor and that he swayed slightly front to back and moderately side to side. When asked to perform additional field sobriety tests, Stevenson refused. At that point, Officer McDowell arrested Stevenson for DUI based upon his initial observations, Stevenson's performance during the field sobriety test, and Stevenson's refusal to perform more tests. Officers then conducted a search of Stevenson's person incident to the arrest, and found $1,076 in cash located in his front right pants pocket.
¶4 Following the arrest, and pursuant to Mesa Police Department's policy, the officers on the scene impounded the vehicle and conducted an administrative inventory of the vehicle's contents prior to it being towed. As part of the inventory, a police drug dog searched the vehicle and alerted officers to a backpack in the front passenger side. The backpack contained four small baggies of "off-white rock substance" that the officers recognized as crack cocaine, a blue Solo cup, two measuring spoons, a small digital scale, several empty sandwich baggies, and two packages of razor blades. Subsequent testing revealed the baggies contained, collectively, 14.1 grams of crack cocaine.
¶5 Prior to trial, Stevenson moved to suppress the items found in the backpack, arguing the search of his vehicle was an unconstitutional warrantless search and his DUI arrest was merely a pre-text to search the vehicle. The trial court denied his motion, finding the arrest, and subsequent search, valid.
¶6 Stevenson was then convicted by a jury on both counts. For count one, he was sentenced to a presumptive term of 9.25 years of incarceration and received 314 days of pre-sentence incarceration credit. For count two, his sentence was suspended, with three years of probation to begin on his release from the Department of Corrections.
Stevenson testified at trial and admitted that he had one historical prior felony conviction. Further, Stevenson committed these crimes while on probation for the prior felony conviction. As such, the trial court could not sentence Stevenson to a sentence less than the presumptive term. See A.R.S. § 13-708(C) (2013).
In Stevenson's related probation case, the trial court revoked his probation, designated his 2011 undesignated offense as a felony, and imposed a one year sentence to run consecutive to the sentence imposed on count one.
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Discussion
¶7 After reviewing the entire record for reversible error, we find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Stevenson was represented by counsel at all stages of the proceedings and was present at all critical stages. There was sufficient evidence for the jury to find Stevenson committed the offenses, and the sentences imposed were within the statutory limits.
¶8 We have, however, noted an error in the sentencing minute entry. Count one indicates Stevenson was sentenced under A.R.S. § 13-702 (2013) as a first time felony offender. However, Stevenson admitted to having a historical prior felony and it is clear from the sentencing transcript that the trial court sentenced Stevenson as a category two repetitive offender under A.R.S. § 13-703(I) (2013). Accordingly, we amend the sentencing minute entry dated May 14, 2013, to conform to the correct sentencing statute.
Conclusion
¶9 We affirm Stevenson's convictions and sentences.
¶10 After the filing of this decision, defense counsel's obligations pertaining to Stevenson's representation in this appeal have ended. Defense counsel need do no more than inform Stevenson 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶11 Stevenson has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, we also grant Stevenson 30 days from the date of this decision to file an in propria persona motion for reconsideration.