State v. Kelly

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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. ) ) TERRY ALAN KELLY, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05/15/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0130 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-105803-001 DT The Honorable James R. Rummage, Judge Pro Tempore 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 Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Terry Alan Kelly appeals his conviction and sentence for one count of forgery. Counsel for Kelly 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), advising that after searching the record on appeal, he was unable to find any arguable grounds for reversal. Kelly was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. However, he has raised four issues through counsel. ¶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 view the facts in the light most sustaining the conviction reasonable inferences against Kelly. and resolve all State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Finding no reversible error, we affirm. ¶3 Kelly was indicted on one count of forgery, a class 4 felony, in violation of section 13-2002(A)(2), Arizona (3) 1 Revised (Supp. Statutes 2011). 2 The ( A.R.S. ) following evidence was presented at trial. ¶4 On January 30, 2010, Kelly was a passenger vehicle that was stopped by Officers Stryczek and Sanchez. 1 The statute provides: A intent to defraud, the person forged instrument; or [o]ffers not, a forged instrument information. in a When person commits forgery if, with . . . [k]knowingly possesses a or presents, whether accepted or or one that contains false 2 Absent material change since the date of the offense, we cite to the statute s current version. 2 Stryczek asked for Kelly s identification, Kelly presented an Arizona driver license with the name Kenneth Cockeral. Stryczek immediately noticed that the identification wasn t consistent with what an actual Arizona Driver s License looks like. Using the mobile computer in his patrol vehicle, Stryczek attempted to obtain information on the license from the department motor vehicles, but there was no record of it. of As Stryczek placed Kelly into investigative detention, Kelly gave him his true identity. ¶5 The sentencing, The officer then placed Kelly under arrest. jury the convictions. found State Kelly proved guilty that as he charged. had two Prior prior to felony The trial court then sentenced Kelly to a super- mitigated term of six years imprisonment, with credit for 133 days of presentence incarceration credit. This timely appeal followed. ¶6 Kelly first argues that the trial court erred by not instructing the jury on the definition of intent to defraud. We review the superior court s denial instruction for abuse of discretion. a proposed consideration in Procedure 21.2. written accordance proposed jury However, Kelly did not instruction with a State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006). submit of Arizona for Rule the court s of Criminal Kelly s counsel merely suggested to the court that it should examine the relevant case law and come up with a 3 definition. Moreover, because intent to defraud is not defined by statute, it is a term of ordinary significance[,] which the court is not required to define. See State v. deBoucher, 135 Ariz. 220, 226, 660 P.2d 471, 477 (App. 1982). Thus, the trial court did not err in failing to sua sponte give the jury an instruction defining intent to defraud. ¶7 Second, Kelly asserts that he did not have notice of the trial date. Kelly appeared at a hearing on July 26, 2010 in which the court granted a defense motion to continue the trial date and reset it to August 23, 2010. Additionally, the minute entry relating to the comprehensive pretrial conference held on May 20, 2010 explains that any failure to appear could result in a warrant being issued for Kelly s arrest and the trial . . . may be conducted in [Kelly s] absence. Based on our review of the record, Kelly had adequate notice of the trial date and the consequences of his failure to appear. See State v. Muniz- Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996) ( The trial court may infer that a defendant s absence is voluntary if the defendant had personal knowledge of the time of the proceeding, his right to be present, and the warning that the proceeding would take place in his absence if he failed to appear. ). ¶8 Third, Kelly argues that his plea offer should have been further extended. Deciding whether to extend or further 4 extend a plea offer is a core prosecutorial power. State v. Donald, 198 Ariz. 406, 417, ¶ 39, 10 P.3d 1193, 1204 (App. 2000). A defendant has no constitutional right to a agreement[] and the state is not required to offer one. plea State v. Jackson, 170 Ariz. 89, 91, 821 P.2d 1374, 1376 (App. 1991). Therefore, the State had no obligation to extend the deadline for Kelly to respond to its plea offer. ¶9 Finally, Kelly probation-eligible. argues that a forgery conviction is Although the presentence report writer did indicate that Kelly would be a good candidate for probation if he were eligible, Kelly was not eligible because proved he had two prior felony convictions. the State See A.R.S. § 13- 703(C) (Supp. 2011) (providing a person must be sentenced as a class 3 repetitive offender if he or she stands convicted of a felony and has two or more historical prior felony convictions ). ¶10 We have searched the entire record for reversible error and find none. All of the proceedings were conducted in accordance Arizona with the Rules of Criminal Procedure. Although Kelly voluntarily absented himself from the trial, he was represented proceedings, sentencing, limits. was and by counsel afforded the at the sentence all pertinent opportunity imposed was to stages speak within of the before statutory Accordingly, we affirm Kelly s conviction and sentence. 5 ¶11 Kelly Upon the filing of this decision, counsel shall inform of the status of the appeal and his options. Defense 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). Kelly shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 6

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