Opinion
2 CA-CR 2012-0379
03-29-2013
THE STATE OF ARIZONA, Appellee, v. PAUL JESUS TORRES, Appellant.
West, Elsberry, Longenbaugh & Zickerman, PLLC By Anne Elsberry Tucson Appellant. 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Not for Publication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 Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20103926001
Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
West, Elsberry, Longenbaugh & Zickerman, PLLC
By Anne Elsberry Tucson
Appellant.
Attorneys for Appellant
ESPINOSA, Judge. ¶1 Appellant Paul Torres was convicted after a jury trial of aggravated assault with a deadly weapon, a class three felony, and simple assault, a class one misdemeanor. The jury acquitted him of aggravated assault causing temporary but substantial disfigurement. Torres was sentenced to an enhanced, maximum prison term of fifteen years for the aggravated assault conviction and time served for the misdemeanor assault. ¶2 Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), avowing she "has found no arguable, meritorious issues" after reviewing the record and the law, requesting that this court search the record for fundamental error. On January 17, 2013, we issued an order allowing Torres to file a pro se supplemental brief, due February 19. On February 13, Torres filed a two-page document entitled, "Petition for Post-Conviction Relief," which has a superior court heading. In it, Torres asserts "newly discovered mater[i]al facts probably exist and such facts probably would have changed the verdict or sentence," pointing to facts allegedly discovered after the trial. Such a claim is cognizable under Rule 32.1(e), Ariz. R. Crim. P., and must first be presented to the trial court in accordance with the provisions of Rule 32. Torres also seems to suggest trial counsel had been ineffective. This, too, is a claim that must be asserted first in the trial court in a Rule 32 petition. State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). Torres has not raised any issue or argument in the document he filed that could be construed as an appellate issue or argument. Consequently, even were we to regard the document as his supplemental brief, there is nothing for us to address. ¶3 We have reviewed the record before us. The evidence, viewed in the light most favorable to sustaining the conviction, State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), established Torres became angry at the victim, threatened him with a knife, and stabbed him on his left side near his heart, thereby committing aggravated assault in violation of A.R.S. § 13-1204(A)(2). The evidence also established he injured the victim, thereby committing simple assault in violation of A.R.S. § 13-1203(A)(1), a lesser-included offense of the charged offense of aggravated assault causing temporary but substantial disfigurement. In addition, the sentences were lawful and imposed in a lawful manner. We have found no reversible error and no arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, the convictions and the sentences imposed are affirmed.
______________________
PHILIP G. ESPINOSA, Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.