STATE v. MARTINEZ

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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 ) ) ) Appellee, ) ) v. ) ) ) SHAWN ALBERT MARTINEZ, ) ) Appellant. ) _____________________________ ) 1 CA-CR 11-0806 DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls STATE OF ARIZONA, DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2011-115023-001 DT The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals and Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Charles R. Krull, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Shawn Albert Martinez (defendant) that, has advised us after searching the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting that this court conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propria persona, and he has not done so. ¶2 Our obligation reversible error. is to review the entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We review the facts in the light most sustaining the conviction reasonable inferences against defendant. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989)(citation omitted). Finding no reversible error, we affirm. ¶3 In the early morning hours of March 25, 2011, defendant entered a parking lot where U-Haul trucks were located near Cave proceeded Unbeknownst Creek to to Road siphon and the Loop-101 gasoline defendant, police freeway. from the had been Defendant U-Haul trucks. surveilling his actions and upon witnessing defendant place a hose into one of the U-Haul trucks, they moved in and arrested him. Police found defendant next to two full, and one empty, 5-gallon gas tanks. Police also discovered a hose hanging out of a U-Haul truck s gas tank. Upon his arrest, defendant admitted to police, after 2 being Mirandized, that he was taking the gas for personal use. ¶4 Defendant was charged with one count of burglary in the third degree, a class 4 felony. on this count. Prior to A jury convicted defendant sentencing, defendant admitted to having a prior felony conviction and waived his right to have a separate trial on this matter. Following his admission, the trial court sentenced defendant to a sentence of 3.75 years in prison, a sentence less than the presumptive term. Defendant received forty-eight days of presentence incarceration credit. ¶5 We have read counsel s brief and have searched the entire record for reversible error and find none. Ariz. at 300, 451 P.2d at 881. conducted in Procedure. adequately compliance So far as represented with the by See Leon, 104 All of the proceedings were the Arizona record counsel Rules reveals, at all of Criminal defendant stages of was the proceedings, and the sentence imposed was within the statutory limits. ¶6 Although this is an Anders appeal and defendant has not filed a supplemental brief, counsel states that defendant requests review of the following issues: (1) that his confession was coerced by a police promise that he would be let go if he admitted to taking the gas; (2) the picture of the U-Haul parking lot presented at trial did not accurately represent the lot on the night in question because it depicted an empty lot as 3 opposed to a lot that was full of trucks; and (3) the sentence he received was excessive in light of the small monetary worth of the gas that was stolen. ¶7 First, defendant did not raise the argument that his confession was coerced by police at trial. On appeal, we will consider an issue not raised at trial only if it is a matter of fundamental error. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Defendant offered no evidence that a promise to was ever confession. Thus, fundamental error. how the use prejudiced made of him. on him the in an record effort to provided, coerce we find his no Second, defendant makes no argument as to the The photograph photograph for was demonstrative used solely purposes to help illustrate the dimensions of the parking lot and the relative locations of the officers and defendant within the parking lot. Moreover, there was testimony at trial that the photograph did not represent how the trucks were located at the time of the incident. As to defendant s sentence, we note that defendant received less than the presumptive sentence and was sentenced within the sentencing guidelines provided by statute. See Ariz. Rev. Stat. (A.R.S.) § 13-703 (2010). ¶8 defendant Upon the filing of this decision, counsel shall inform of the status of the appeal and his options. Counsel s duty to further defendant s cause on direct appeal is 4 satisfied and counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision in which to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. ¶9 We affirm defendant s conviction and sentence. /s/ __________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ SAMUEL A. THUMMA, Judge 5

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