State v. Montoya
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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. PHILLIP R. MONTOYA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 01/31/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0944 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-120932-001 DT The Honorable Joseph C. Welty, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Janelle A. McEachern, Attorney at Law Attorney for Appellant J O H N S E N, Judge Phoenix Chandler ¶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 convictions attempted of 878 (1969), first-degree first-degree following murder, murder, a Phillip a Class Class 2 R. 1 Montoya s felony, felony. and Montoya 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). Montoya was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Montoya s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 A 16-year-old Chandler one night. 1 girl was at the wheel of an SUV in She had two passengers; one sat in the front beside her, the other was in the back seat. The passenger in the back seat suddenly shot the other passenger five times, killing him. He then turned his gun on the driver and shot her in the face, but she survived. identify the shooter, one of 1 Although the driver did not the other victim s sisters Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against Montoya. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 testified she saw the victim drive away in an SUV that night with Montoya. Another sister testified her brother introduced her to Montoya that night and said he was leaving with him. Montoya was arrested early the following morning. He chose to speak to police, and was interviewed for roughly two hours. In a videotape of that interview played for the jury, Montoya lied several times about his whereabouts and activities the night before. ¶3 At trial, Montoya s defense was that the shootings were committed by another man, and the court allowed evidence of the third party s reputation for violence, association with the victims and that some months after this crime, he had shot at a car driven by Montoya s brother. In response, the State offered alibi evidence tending to show that the third party did not commit the shootings at issue here. The jury convicted Montoya on both charges and found both were dangerous offenses. The court sentenced Montoya to concurrent terms of incarceration of natural life on the murder conviction and 21 years on the attempted murder conviction. ¶4 to Montoya timely appealed. Article 6, Section 9, of We have jurisdiction pursuant the 3 Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033 (2012). 2 DISCUSSION ¶5 was The record reflects Montoya received a fair trial. represented by counsel at all stages of the He proceedings against him and was present at all critical stages. The court did not erroneously deny any request for a pretrial hearing. The superior court did not conduct a voluntariness hearing; however, neither Montoya nor the evidence raised a question of voluntariness about the defendant s statements. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶6 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly composed of 12 members. The jury was The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of unanimous verdicts. received and considered a presentence report. The court The sentences the superior court imposed were within legal ranges. CONCLUSION ¶7 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. 2 Absent material revisions after the date of an offense, we cite to a statute s current Westlaw version. 4 alleged ¶8 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Montoya s representation in this Defense counsel need do no more than inform Montoya 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). On the court s own motion, Montoya has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. He 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/ PATRICIA A. OROZCO, Judge /s/ LAWRENCE F. WINTHROP, Judge 5
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