State v. Ybarra
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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. GEORGE YBARRA, Appellant. DIVISION ONE FILED: 09/30/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0901 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-169581-001 DT The Honorable Edward Burke, Judge CONVICTION AND SENTENCE 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 Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix George Ybarra Appellant J O H N S E N, Judge Eloy ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following George Ybarra s conviction of possession of drug paraphernalia, a Class 4 felony. Ybarra s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Ybarra filed a Motion to Clarify, as which we will construe a supplemental brief. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Ybarra s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2 Ybarra was pulled over on a routine traffic stop and arrested for driving on a suspended license. 1 incident to arrest, police found a pipe methamphetamines hidden in Ybarra s sock. During a search used to ingest A subsequent search of Ybarra s car uncovered a clear plastic baggie containing 150 milligrams of methamphetamine. Ybarra was charged with possession or use of a dangerous drug and possession of drug paraphernalia. 1 A jury found him guilty of possession of drug Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Ybarra. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 paraphernalia but acquitted him on the other charge. After the State proved one historical prior felony conviction, the court sentenced Ybarra to a mitigated term of one year in prison. ¶3 to Ybarra timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010). 2 DISCUSSION ¶4 was The record reflects Ybarra received a fair trial. represented by counsel at all stages of the He proceedings against him and was present at all critical stages, except the evidentiary presence hearing on a waived by counsel. was motion to suppress, The court in held which his appropriate pretrial hearings. ¶5 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly comprised of eight members. The The jury was court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury and returned considered 2 a a unanimous presentence verdict. report and The court addressed Absent material revisions after the date offense, we cite a statute s current version. 3 received its of an contents alleged during the sentencing hearing and imposed a legal sentence on the crime of which Ybarra was convicted. ¶6 In his pro persona filing, Ybarra argues the court erroneously failed to grant him presentence incarceration credit for time he spent in federal custody on a separate immigration matter. Contrary incarceration to Ybarra s credit is argument, not however, available incarcerated on an unrelated federal charge. to presentence a defendant See A.R.S. § 13- 712(B) (2010); State v. Lalonde, 156 Ariz. 318, 320, 751 P.2d 978, 980 (App. 1987) (defendant not entitled to credit against Arizona sentence for incarceration by another sovereign on a non-Arizona charge). CONCLUSION ¶7 We have reviewed the entire record for reversible error and find none. ¶8 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations in this appeal have ended. Defense counsel need only inform Ybarra of the outcome of this appeal and his future options, unless, appropriate for upon review, submission petition for review. to counsel the Arizona finds an Supreme issue Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Ybarra has 30 days from the date of this decision to proceed, if 4 he wishes, with a pro per motion for reconsideration. Ybarra has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICK IRVINE, Judge /s/ PHILIP HALL, Judge 5
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