State v. Mercado

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) STATE OF ARIZONA, Appellee, v. ROBERT MERCADO, Appellant. No. DIVISION ONE FILED: 02/02/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0047 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-143829-003 DT The Honorable Pendleton Gaines, Judge AFFIRMED AS MODIFIED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender by Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Robert Mercado (defendant) appeals from his conviction and the sentence imposed. ¶2 Defendant's appellate 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), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, & 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, & 2, 68 P.3d 407, 408 (2003). ¶4 Finding no reversible error, we affirm. Defendant was charged by indictment with count one: burglary in the third degree, a class four felony, in violation of Arizona Revised Statutes (A.R.S.) section 13-1506(A) (Supp. 2009) and count two: aggravated assault, a class three felony, in violation of A.R.S. § 13-1204(A)(2) (Supp. 2009). The state's motion to dismiss count two made the day of trial was granted by the trial court. 2 ¶5 The following evidence was presented at trial. At approximately 3:00 a.m. on July 14, 2008, G.S. was awoken by noises outside his bedroom window. He opened his blinds and observed two people in his brother's car. the car and the other was in the trunk. One man was inside G.S. asked his wife to call 9-1-1 while he went to wake his brother. outside and said, "Hey, what is going on?" men exited the vehicle and ran to a G.S. then went In response, the two nearby parked Crown Victoria, with one of the men pointing a gun at G.S. as they fled. in the driver. ¶6 The men entered the Crown Victoria, with one man sitting passenger seat and the other man sitting behind the The car then sped away. When the police arrived, G.S. provided a description of the vehicle. Shortly thereafter, Officer E.D. of the Phoenix Police Department observed a vehicle matching the description. The officer then started following the vehicle. When the vehicle turned down a dead-end street, Officer E.D. called for back-up and approached the vehicle. of the vehicle. There were three occupants Officer E.D. testified that defendant was the driver. ¶7 The victims were brought to the location where the suspects were being detained and positively identified two of the suspects, but not defendant. arrest and searched. The suspects were placed under The officer found a pair of wire cutters 3 and a multi-function tool on defendant's person. Officer E.D. also testified that he found the victim's car stereo inside the Crown Victoria. He also found screwdrivers and a tool bag with assorted tools around the passenger compartment. ¶8 After guilty. a three-day trial, the jury found defendant After a trial on the priors, the trial court found the defendant had multiple prior historical felony convictions. The trial court sentenced defendant to an exceptionally mitigated six-year term of imprisonment on count one with 107 days of presentence incarceration. ¶9 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶10 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need do decision, counsel's representation no more than in this inform defendant of the status of the appeal and his future options, unless counsel's review reveals 4 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, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's conviction and sentence are affirmed as modified.1 _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge . /s/ PATRICIA A. OROZCO, Judge . 1 We modify the sentencing minute entry to reflect that the offense of burglary in the third degree is a repetitive offense. 5

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