STATE v. PINKINS

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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. ) ) TOMMY LEE PINKINS, JR., ) ) Appellant. ) ) DIVISION ONE FILED: 06/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0194 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-122320-001 DT The Honorable John R. Hannah, Jr., Judge AFFIRMED Thomas C. Horne, Arizona 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 Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix Tommy Lee Pinkins, Jr. Appellant W I N T H R O P, Chief Judge Tucson ¶1 Tommy Lee Pinkins, Jr. ( Appellant ) appeals his convictions and sentences for illegally conducting an enterprise and transportation of marijuana for sale in an amount over the statutory threshold. Appellant s counsel has 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 he 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). Additionally, this court granted Appellant the opportunity to file a supplemental brief in propria persona, and he has 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) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 FACTS AND PROCEDURAL HISTORY 2 I. ¶3 On May 10, 2010, a grand jury issued an indictment, charging Appellant with Count I, illegally conducting an enterprise, a class three felony, in violation of A.R.S. § 132312(B), and Count II, transportation of marijuana for sale in an amount over the statutory threshold, a class two felony, in violation of A.R.S. § 13-3405. The State later alleged that Appellant in had prior convictions Georgia for perjury and possession of cocaine with the intent to distribute, and that Appellant committed the charged offenses while on release from confinement. aggravating The State also circumstances, alleged the including presence that of three Appellant had committed the crimes with the expectation that he would receive anything of pecuniary value. ¶4 Before trial, Appellant advised the court that he wished to represent himself, and the court granted his motion after finding that he had knowingly, intelligently, voluntarily waived his right to an attorney. and The court also appointed advisory counsel to assist Appellant. ¶5 At At trial, the State presented the following testimony: approximately midnight on April 2 29, 2010, Department of We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 3 Public Safety ( D.P.S. ) Officer Mitchell, who was on patrol in his capacity Pioneer as Road a and commercial the I-17 vehicle highway inspector, in parked near Maricopa County. As Appellant s semi-truck passed by, the officer noticed sailing mud flaps on Appellant s semi-trailer. Officer Mitchell stopped Appellant s mud conduct a vehicle safety for the sailing inspection. As the flaps officer and also approached to the passenger side of the cab of the semi-truck, he smelled a strong odor of air freshener. door. He requested that Appellant open the cab Appellant complied with the officer s request. ¶6 Officer Mitchell informed Appellant why he had stopped Appellant s vehicle and indicated inspection of the semi-truck. identification trip. and inquired he would conduct a safety The officer requested Appellant s about the purpose of Appellant s Appellant responded to Officer Mitchell s questions, but the officer noted Appellant s voice shook. Appellant explained that he had picked up a load of produce in Nogales, Arizona, to transport to Brooklyn, New York. Officer Mitchell thought this seemed unusual because the most efficient route from Nogales to New York was the I-10 east from Tucson and not the I-17 through Phoenix. produced lading, He his and also noted vehicle log that Appellant s registration, book. When driver s asked for hands shook license, the he bill of registration, Appellant initially gave the officer a car wash receipt. 4 as ¶7 cell Officer Mitchell also observed Appellant had multiple phones, which the criminal activity. officer considered an indicator of At the officer s request, Appellant opened the sleeper curtains in the cab of the semi-truck. The officer saw several large suitcases with the price tags still attached in the sleeper area. Officer Mitchell advised Appellant that he was going to conduct a more thorough inspection of Appellant s semi-truck. With the assistance of another D.P.S. officer, Officer Mitchell inspected the truck and discovered no other violations. for the Officer Mitchell issued a need to repair order sailing mud flaps. After finishing the necessary paperwork, Officer Mitchell told Appellant he could leave. ¶8 As Mitchell asked questions. provided Appellant walked Appellant if toward he would Appellant agreed to do so. Appellant a consent the form truck answer cab, a Officer few more Officer Mitchell also on the ticket that [Appellant] signed to search the semi-trailer and he verbally consented to a search. 3 When asked if he had any illegal drugs in the truck or trailer, Appellant replied that he did not. When Officer replied, No. Mitchell asked if he had cocaine, Appellant Appellant gave the same response when asked if he had a large amount of cash. When asked specifically whether 3 Appellant stated several times at trial that he also gave verbal consensual agreement to the officer to search the truck. 5 he had marijuana, however, Appellant replied, I ve never smoked it. Based on the difference of this response from the others, coupled with his previous observations, Officer Mitchell decided to call for a drug-sniffing dog. While waiting for the dog to arrive, Officer Mitchell noticed Appellant using a third cell phone, rather than one of the two he saw earlier in the semitruck cab. stated In response to a question by the officer, Appellant that the suitcases in the cab contained his dirty laundry. ¶9 The police Appellant s vehicle. dog alerted on the passenger door of Based on Appellant s verbal and signed consent, his varying responses to the officer s drug possession inquiries, the third cell phone, and the dog s alert, officers searched the cab of the truck. 4 4 Officer Mitchell found seven We note that the facts in this case are similar to those we encountered in State v. Sweeney, 224 Ariz. 107, 227 P.3d 868 (App. 2010), but we conclude that the two cases are distinguishable. In Sweeney, we concluded that after the defendant had been detained and then released, a subsequent detention and search of the defendant s vehicle without his consent was unlawful because no new circumstances had occurred to form a particularized and objective basis for the second seizure. Id. at 114-15, ¶¶ 31-32, 227 P.3d at 875-76. In this case, however, Appellant concededly provided both verbal and written consent for the officer to further detain him and conduct a search. Although we reiterate that the catch and release tactic employed both here and in Sweeney does not trump the Fourth Amendment, Appellant s further detention was not unlawful in this case because the record clearly indicates, and he has acknowledged, that he voluntarily consented to the further detention and search. 6 suitcases in the cab, each containing three bales of marijuana. 5 The marijuana was wrapped in green cellophane and vacuum sealed. Officers also found dryer sheets, marijuana odor, in the suitcases. commonly used to mask Officer Mitchell opined that, based on the condition and packaging, the marijuana originated in Mexico. Officer Mitchell arrested Appellant and discovered that Appellant had smashed the third cell phone he had recently used; accordingly, no information could be extracted from it. ¶10 pounds. The total weight of the seized marijuana was 482.1 Officer Mitchell testified that, based on his experience and training, the marijuana seized was worth $500 per pound in Arizona and approximately $2,000 per pound in New York. He stated that this particular type of marijuana is commonly grown in Mexico, brought across the border to stash houses in Tucson and Phoenix, and then distributed to the rest of the United States. ¶11 The jury found Appellant guilty on both counts and found the amount of marijuana possessed by Appellant was more than two pounds. The jury also found the State had proved one aggravating factor that Appellant had committed the crimes with the expectation of the receipt of anything of pecuniary value. The trial court sentenced 5 Appellant to concurrent, A D.P.S. criminalist testified that thirteen core samples taken from the plant material found in Appellant s suitcases contained marijuana. 7 maximum terms Department of of seven years Corrections incarceration for Count I in the Arizona and ten years incarceration for Count II, with 325 days of credit for presentence incarceration. II. ¶12 ANALYSIS Appellant filed a pro per brief, in which he does not specifically raise any issues for appeal, except that he appears to maintain that the State failed to present sufficient proof in support of his convictions. we conclude that After reviewing the entire record, Appellant s claim is without merit. The evidence presented at trial was substantial and supports the verdict. Further, we have reviewed reversible error and find none. the entire record for See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. Appellant s sentences were within the statutory limits, he was represented by counsel at all stages of the pre-trial proceedings and assisted by advisory counsel at trial, and he was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the filing of this Arizona Rules of Criminal Procedure. ¶13 After obligations appeal have pertaining ended. to decision, Appellant s Counsel need 8 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. ¶14 CONCLUSION Appellant s convictions and sentences are affirmed. ____________/S/____________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: _______________/S/__________________ PATRICIA K. NORRIS, Presiding Judge ______________/S/___________________ MARGARET H. DOWNIE, Judge 9

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