State v. Herrera

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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. ALEJANDRO HERRERA, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 10-0046 DEPARTMENT D DIVISION ONE FILED: 12/28/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-127979-001 DT The Honorable James T. Blomo, Judge Pro Tempore 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 Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 and Alejandro Herrera timely appeals from his convictions sentences for molestation of a child, sexual abuse, attempted sexual conduct with a minor, and sexual conduct with a minor. After searching the record on appeal and finding no arguable question of law that was not frivolous, Herrera s 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), asking fundamental error. this court to search the record for This court granted counsel s motion to allow Herrera to file a supplemental brief in propria persona, but he chose not to do so. no fundamental After reviewing the entire record, we find error and, therefore, affirm Herrera s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 During a phone call in March 2009, 18-year-old T.H. told her mother childhood. 23; that Herrera had molested T.H. during her Mother asked her other three daughters -- C.H., age P.H., age 22; and A.H., age 14 -- whether Herrera had molested them when they were children, and they all said yes. Mother contacted the police, and the police then interviewed the daughters. Following the interviews, C.H. made a confrontation call Herrera to molestations. to attempt to get him to admit the During the call, Herrera admitted touching C.H. 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Herrera. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Later, in an interview with police, 2 Herrera again and P.H. admitted touching C.H. and P.H. 3 ¶3 crimes, The State charged Herrera with 11 counts of various all classified as dangerous crimes against children. After a trial, at which Herrera did not testify, a jury found him guilty on six counts involving C.H. and P.H.: two counts of molestation of a child, a class 2 felony; two counts of sexual abuse, a class 3 felony; one count of attempted sexual conduct with a minor, a class 3 felony; and one count of sexual conduct with a minor, a class 2 felony. The jury could not reach a verdict on the other five counts involving T.H. and A.H. State s request, the superior court later At the dismissed those charges with prejudice. ¶4 The superior court sentenced Herrera to the presumptive term of imprisonment on all convicted counts 4 with 264 days of presentence incarceration credit. 2 Police advised Herrera of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), before the interview. 3 At trial, a police detective testified Herrera admitted in the confrontation call and the interview to touching C.H., P.H., and T.H. 4 The superior court ordered three counts to be served consecutively and three concurrently. 3 DISCUSSION ¶5 Through counsel on appeal, Herrera asserts his sentences were excessive and his trial counsel was ineffective. We reject both arguments. First, a sentence within statutory limits will not be reduced on appeal unless a clear abuse of discretion is shown, State v. Matthews, 104 Ariz. 421, 423, 454 P.2d 566, 568 (1969), and we find no abuse of discretion in the presumptive sentences imposed by the superior court. ineffective-assistance-of-counsel petition for post-conviction claim relief must be under Second, an raised Arizona in a Rule of Criminal Procedure 32 and cannot be considered on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). ¶6 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Herrera received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶7 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of 12 members, properly and the court instructed the jury on the elements of the charges, Herrera s presumption of innocence, the State s verdict. burden The of proof, superior and the court necessity received of and a unanimous considered a presentence report, Herrera was given an opportunity to speak at 4 sentencing, and his sentences were within the range of acceptable sentences for his offenses. CONCLUSION ¶8 We decline to order briefing and affirm Herrera s convictions and sentences. ¶9 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Herrera s representation in this Defense counsel need do no more than inform Herrera 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 v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 5 ¶10 Herrera has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. days On the court s own motion, we also grant Herrera 30 from the date of this decision to file an in propria persona motion for reconsideration. /s/ __________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ _____________________________________ LAWRENCE F. WINTHROP, Presiding Judge /s/ _____________________________________ PATRICK IRVINE, Judge 6

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