State v. Mata

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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. MARTIN MATA, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05-20-2010 PHILIP G. URRY,CLERK BY: PJL 1 CA-CR 09-0392 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-007446-001 DT The Honorable Sam J. Myers, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Thomas A. Gorman, Attorney at Law Attorney for Appellant Martin Mata, Appellant Phoenix Sedona Buckeye N O R R I S, Judge ¶1 Martin Mata timely appeals from his convictions and sentences for three counts of aggravated assault, two counts of kidnapping, and single counts of misconduct involving weapons, burglary in the first degree, armed robbery, and theft of means of transportation. After searching the record on appeal and finding question Mata s no arguable counsel filed a brief of law in that was accordance not with frivolous, 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. This court granted counsel s motion to allow Mata to file a supplemental brief in propria persona, and Mata chose to do so. We reject the arguments raised in Mata s supplemental brief and, after reviewing the entire record, find no fundamental error. Therefore, we affirm Mata s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On June 2, 2007, an Ahwatukee man confronted Mata thinking he was attempting to steal his neighbor s truck. Mata, a prohibited possessor, beat the man with a gun and fled. Hours later, Mata entered a couple s nearby home, demanded items at gunpoint, forced them to drive him to South Phoenix, and stole their truck. After an eight-day trial, a jury found Mata guilty of nine felony offenses, see supra ¶ 1, and found all to be dangerous offenses except the theft of means of transportation 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Mata. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 charge. Before sentencing, the superior court held a trial on Mata s historical priors and found two prior felony convictions for sentencing enhancement and additional felonies to justify an aggravated imposed sentence. the On aggravating 21, 2009, sentence maximum May on each circumstances circumstances. 2 the superior count, outweighed court finding the the mitigating See A.R.S. § 13-604(C), (D) (Supp. 2006) (this section is now A.R.S. § 13-703(C), (J) (2010)). The sentences totaled 272 172 years and the court awarded Mata days of presentence incarceration credit. DISCUSSION ¶3 In his supplemental brief, Mata first argues we should grant him a new trial because of the ineffective assistance of his trial counsel. Mata s ineffective assistance of counsel arguments are not properly before us. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) ( defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding -- not before under oath. trial, at trial, or on direct review ). ¶4 Mata also argues victim witnesses lied Credibility determinations are for the fact finder, however, not 2 The aggravating factors the court identified were Mata s criminal history, the jury s findings of dangerousness, and the harm to the victims. See Ariz. Rev. Stat. ( A.R.S. ) § 13-702(C)(2), (9), (11) (Supp. 2006) (these subsections are now A.R.S. § 13-701(D)(2), (9), (11) (2010)). 3 this court, and we defer to the jury s determinations of witness credibility. State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996). ¶5 Finally, Mata contends the evidence was insufficient to sustain his convictions. Although Mata correctly notes one witness who knew Mata was unable to identify him in court, all three victims, a witness who had known Mata for two years, and two law enforcement officers identified him in court. Mata also argues [a]ll the victims described him as approximately ten years younger than he actually was, and he was never found in possession of any gun or of the [items] the [victims] sa[id] the suspect took from them. Mata was not arrested until over two months after the incidents took place, however, and the trial testimony by itself constituted substantial evidence of Mata s guilt. See State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt ) (citation omitted). ¶6 necessary In addition to reviewing those portions of the record to address Mata s concerns, we have reviewed entire record for reversible error and have found none. Leon, 104 Ariz. at 300, 451 P.2d at 881. 4 the See Mata received a fair trial. He was represented by counsel at all stages of the proceedings and was personally present at all critical stages. ¶7 The jury was comprised of twelve members, the court properly instructed the jury on the elements of the crimes, Mata s presumption of innocence, the State s burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Mata was given an opportunity to speak at sentencing, and his sentences were within the range of acceptable sentences for his offenses. CONCLUSION ¶8 We decline to order briefing and affirm Mata s convictions and sentences. ¶9 After the filing of this decision, defense counsel s obligations pertaining to Mata s representation in this appeal have ended. Defense counsel need do no more than inform Mata 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 Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 5 v. ¶10 Mata has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court s own motion, we also grant Mata 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ________________________ DANIEL A. BARKER, Judge /s/ ________________________ PETER B. SWANN, Judge 6

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