State v. Gishie

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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. BRANDON TROY GISHIE, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 09/28/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0846 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-163564-001 SE The Honorable Emmet J. Ronan, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 sentences Brandon for two Troy Gishie counts of appeals aggravated his convictions assault, class and three dangerous felonies. Gishie s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. See Smith v. Robbins, 528 U.S. 259 (2000). Gishie was afforded the opportunity to file a supplemental brief in propria persona but did not do so. For the following reasons, we affirm Gishie s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). On September 28, 2007, J.C. was working as a bouncer at Zuma s Bar and Grill on Mill Avenue in Tempe. J.C. asked Gishie to leave intoxicated and causing Gishie did not comply Gishie and escorted the problems with him bar near J.C. s down the because the request, back he women s so hallway was restroom. J.C. of too grabbed the bar. Gishie continued to resist J.C. s attempts to remove him from the bar by fighting J.C. and gripping the doorway. Three other Zuma employees, T.G., R.S., and M.T., saw the struggle and came to J.C. s assistance. The four men escorted Gishie out of the bar s back door into an alley, and shut the door behind them. 2 ¶3 After the door was closed J.C. heard crashing noises in the alley. He opened the door to find Gishie throwing bar stools around. The four bouncers went into the alley and told Gishie to stop throwing the bar stools and to leave. Gishie became angry, reached in his pocket, and charged the bouncers with a silver knife in his hand. Afraid that Gishie was going to harm them with the knife, the bouncers ran inside, shut the door, and called police. ¶4 A police. few minutes later Gishie was arrested by Tempe As the officers were putting Gishie on the ground they saw the knife drop from his person. ¶5 Gishie was indicted on assault, class 3 dangerous felonies. the case proceeded to trial. case, the judge dismissed four counts of aggravated Gishie pled not guilty and At the conclusion of the State s counts three and four of the indictment pursuant to Arizona Rule of Criminal Procedure 20. The jury convicted Gishie on counts one and two, aggravated assault, dangerous offenses. ¶6 During sentencing, the Court found as an aggravating factor that Gishie had a prior felony conviction for a similar offense. However, the Court found various mitigating factors, including Gishie s age and family support, which outweighed the aggravating factor. Gishie was given credit for 78 days of presentence incarceration and sentenced to a minimum term of 3 five years for each count, with both sentences to be served concurrently. DISCUSSION ¶7 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentences imposed fall within the range permitted by law, and the evidence presented supports the convictions. As far as the record reveals, Gishie was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶8 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Gishie of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Gishie has thirty days from the date of this decision in which to proceed, if he desires, with a pro se petition for review. 4 motion for reconsideration or CONCLUSION ¶9 The convictions and sentences are affirmed. _____/s/________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/___________________________ PATRICIA K. NORRIS, Judge ___/s/___________________________ MAURICE PORTLEY, Judge 5

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