Opinion
No. 1 CA-CR 16-0520
06-22-2017
STATE OF ARIZONA, Appellee, v. JONATHAN DAVID STOBAUGH, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Rena P. Glitsos Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-140375-001
The Honorable Gregory Como, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Donn Kessler joined. CATTANI, Judge:
¶1 Jonathan Stobaugh appeals his conviction of misconduct involving weapons (prohibited possessor) and the resulting sentence. Stobaugh's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she found no arguable question of law that was not frivolous. Stobaugh was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we affirm Stobaugh's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 During an otherwise unrelated contact with Stobaugh at his home in the summer of 2015, Phoenix Police Department officers impounded three guns: two rifles and one revolver. Officers later successfully test fired each weapon.
¶3 Further investigation revealed that Stobaugh had previously been convicted of a felony. Stobaugh admitted the prior felony conviction to a detective, and further acknowledged that his civil rights had not been restored. He admitted the three guns were his, but described them as family heirlooms inherited from his grandfather. Stobaugh later testified that he had never fired any of the guns and had believed the guns were not operational, explaining that at least two of the three were manufactured in the 1890s.
¶4 The State charged Stobaugh with misconduct involving weapons (prohibited possessor). See Ariz. Rev. Stat. ("A.R.S.") § 13-3102(A)(4). A jury found him guilty as charged, and the superior court sentenced him to a mitigated term of 3 years' imprisonment, with credit for 45 days served. Stobaugh timely appealed.
Absent material revisions after the relevant date, we cite a statute's current version.
Although the sentencing minute entry reflects that the offense was "non-repetitive," the sentence actually imposed was within the appropriate range for a category two repetitive offender. See A.R.S. § 13-703(I). Given Stobaugh's one prior felony conviction in CR2008-162000—proven by the State at trial and further admitted by Stobaugh while testifying—he was properly sentenced as a repetitive offender. --------
DISCUSSION
¶5 We have read and considered counsel's brief and have reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find none.
¶6 The record reflects that the superior court afforded Stobaugh all his constitutional and statutory rights, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Stobaugh was present and represented by counsel at all critical stages of the proceedings against him. The court conducted appropriate pretrial hearings, and the evidence presented at trial was sufficient to support the jury's verdict. Even if Stobaugh sincerely believed the guns to be inoperable, only actual permanent inoperability is a defense to the charge, and here the guns were in fact operable. See A.R.S. § 13-3101(A)(4) ("Firearm does not include a firearm in permanently inoperable condition."); State v. Young, 192 Ariz. 303, 307, ¶ 16 (App. 1998) (as amended) ("Operability of the weapon is not an element of the offense of knowingly possessing a prohibited weapon; rather, permanent inoperability is an affirmative defense to that, as to other, firearm offenses. If operability is not an element of the offense, neither can knowledge of operability be an element of the offense. Knowledge of operability was not part of the culpable mental state that the State was obliged to prove.") (citations omitted). Stobaugh's sentence falls within the range prescribed by law, with proper credit given for presentence incarceration.
CONCLUSION
¶7 Stobaugh's conviction and sentence are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Stobaugh's representation in this appeal will end after informing him of the outcome of this appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's own motion, Stobaugh has 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.