State v. Casa-Cabrera

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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. ) ) FRANCISCO ANGEL CASA-CABRERA, ) ) Appellant. ) ) 1 CA-CR 09-0227 DIVISION ONE FILED: 02/18/2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2006-163331-001 DT The Honorable F. Pendleton Gaines, III, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn Petroff, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Judge ¶1 from Francisco his weapons. Angel conviction and Casa-Cabrera sentence for ( Appellant ) misconduct appeals involving Appellant s counsel filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (Supp. 2009). Finding no reversible error, we affirm. I. ¶3 FACTS AND PROCEDURAL HISTORY We review the facts in the light most favorable to sustaining the trial court s judgment and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). ¶4 On indictment, October charging 13, 2006, Appellant a with grand one jury count of issued an misconduct involving weapons for knowingly possessing a deadly weapon while being a prohibited possessor. See A.R.S. § 13-3102(A)(4) (Supp. 2 2009).1 The State later alleged that Appellant had one prior felony conviction and had committed the charged crime while on probation. ¶5 Appellant was tried in absentia. police officer testified that, on At trial, a Phoenix October 5, 2006, he and another officer knocked on the door of a house in search of Appellant. officers Appellant s sister answered the door and gave the permission to enter. The officers encountered Appellant as he was emerging from his bedroom, placed him into custody, and asked him if he had any weapons. Appellant admitted that he had a revolver in the bedroom, and he pointed toward the pillow on the bed. The officers found a loaded revolver under the pillow, arrested Appellant, and informed him of his rights pursuant to Miranda.2 Appellant informed the officers that he obtained the gun from his cousin for protection because his sister s home had been recently burglarized. ¶6 Appellant s probation officer testified at trial that Appellant had been placed on felony probation on June 20, 2006, and was still on probation at the time of the trial. ¶7 On charged. April 3, 2007, the jury convicted Appellant On March 13, 2009, after determining that Appellant 1 We cite the current version of the statute because changes material to our decision have since occurred. 2 as See Miranda v. Arizona, 384 U.S. 436 (1966). 3 no had one prior felony conviction, the trial court sentenced Appellant to the presumptive term of 4.5 years incarceration in Arizona Department of Corrections. The court also at Appellant s request revoked his probation for the prior felony offense, ordered that his sentence in this case be served concurrently with the sentence imposed for his prior conviction,3 and credited him for 129 days of pre-sentence incarceration.4 Appellant filed a timely notice of appeal. II. ¶8 We have reviewed error and find none. ANALYSIS the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at the trial was substantial and supports the verdict, and Appellant s Appellant was proceedings sentence represented and was was within by counsel given the the at statutory all opportunity stages to limits. of the speak at 3 The State does not challenge the court s imposition of concurrent sentences; therefore, we do not address their propriety. See generally A.R.S. § 13-708(C) (Supp. 2009) (requiring consecutive sentences); State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (stating that absent a timely cross-appeal, this court cannot correct an illegally lenient sentence that favors an appellant). 4 From our review of the record, it appears that the trial court erred in calculating Appellant s pre-sentence incarceration credit in this matter. Appellant should have received credit for only 128 days, rather than 129 days. Again relying on Dawson, 164 Ariz. at 286, 792 P.2d at 749, we do not correct this error. 4 sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶9 After obligations appeal have filing pertaining ended. of this to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant 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. III. ¶10 CONCLUSION We affirm Appellant s conviction and sentence. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ______________/S/________________ PETER B. SWANN, Presiding Judge _____________/S/_________________ MICHAEL J. BROWN, Judge 5

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