State v. Maleth

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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 DIVISION ONE FILED: 06/12/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) AKON NON AKON MALETH, ) ) Appellant. ) ) ) ) __________________________________) No. 1 CA-CR 11-0654 1 CA-CR 11-0658 (Consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2007-104432-001, CR2011-101895-001 The Honorable Peter C. Reinstein, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix B R O W N, Judge ¶1 Akon Non Akon Maleth appeals his conviction and sentence for one count of possession of marijuana for sale and the trial court s offense. 1 order revoking his probation on a prior Counsel for Maleth filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 searching the record arguable grounds P.2d on for 878 (1969), appeal, he reversal. advising was unable Maleth that to was after find granted any the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation reversible error. is favorable to reasonable inferences 289, the entire record for We view the facts in the light most sustaining 293, review State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Ariz. to 778 the against P.2d conviction Maleth. 1185, and State 1189 v. (1989). resolve Guerra, Finding all 161 no reversible error, we affirm. ¶3 Maleth was charged by direct complaint with possession of marijuana for sale, a class four felony, in violation of Arizona Revised 2011). 2 The Statutes State also ( A.R.S. ) filed an section 13-3405 Allegation of (Supp. Offenses Committed While Released from Confinement pursuant to A.R.S. 1 These appeal. two cases were consolidated 2 for purposes of this Absent material revision after the date of the offense, we cite the statute s current version. 2 § 13-708(C) (Supp. 2011) for Maleth s alleged commission of a felony while on probation. Maleth was on probation for a 2007 conviction for threatening and intimidating, a class six felony. One of the conditions of probation imposed was that he obey all laws. The following evidence was presented at trial. ¶4 In January patrolling an location, they area 2011, of Officers central observed Maleth Harris Phoenix. participate and Elfritz were From a concealed in two separate exchanges in which it appeared that Maleth handed a small green item in a small clear baggie to other individuals in exchange for money. The officers left their surveillance location and approached Maleth. The officers asked Maleth for permission to search him and he consented. They found several zip-lock bags of what they believed to be marijuana, and $84 in cash. The officers placed Maleth under arrest and conducted a field test on the substance to confirm it was marijuana. A forensic scientist later confirmed that the substance was in fact 19.7 grams of marijuana, a usable amount. ¶5 Officer Elfritz advised Maleth of his Miranda 3 rights; Maleth stated that he understood his Miranda rights and agreed to voluntarily answer questions. According to the officer, Maleth admitted that the marijuana belonged to him, that he was 3 Miranda v. Arizona, 384 U.S. 436 (1966). 3 selling it, and that the money found in his pocket was from the sale of marijuana. ¶6 Prior to trial, Maleth requested a voluntariness hearing, arguing that his statements to the officer should be suppressed. Because English is not Maleth s first language and his proficiency in English is limited, Maleth argued there was no way to ensure he understood his rights or the questions asked by the officer because a translator was not provided at the time of his arrest. At the voluntariness hearing, the trial court determined Maleth s that statements to the officer were in compliance with Miranda. ¶7 At trial, Maleth stated that he did not fluently understand English, 4 but admitted that he understood the Miranda rights. He denied that he sold marijuana to the two individuals observed by the officers, denied ever selling drugs, and denied giving the officers permission to search him. Maleth denied answering any of the officer s questions and stated that the money in his pocket was from a temporary job. Maleth admitted to possession of marijuana, but stated it was for personal use only and not for sale. ¶8 marijuana The for jury sale. found Maleth Maleth was 4 guilty of sentenced possession as a of repetitive Maleth was provided with the assistance of a translator at all pertinent proceedings. 4 offender 5 to the presumptive term of ten years imprisonment with 231 days of presentence incarceration credit. Based on this conviction, the court revoked Maleth s probation, sentencing him to a concurrent term of 620 days of imprisonment with 620 days of presentence incarceration credit. 6 This timely appeal followed. ¶9 We have searched error and find none. the entire record for reversible All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Maleth was present and represented by counsel at all pertinent stages of the proceedings and at the disposition hearing, was sentencing, limits. and afforded the the opportunity sentences Accordingly, we imposed affirm were Maleth s to speak within before statutory conviction, the revocation of his probation, and the resulting sentences. ¶10 Upon the filing of this decision, counsel shall inform Maleth 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 5 Maleth admitted during his testimony to prior felony convictions from Maricopa County and the court used these convictions to sentence Maleth as a repetitive offender, pursuant to A.R.S. § 13-703(C) (Supp. 2011). 6 Maleth received additional presentence incarceration credit for the probation revocation because of time served previous to the possession of marijuana for sale charge. 5 Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Maleth 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, Presiding Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Judge /s/ ___________________________________ RANDALL M. HOWE, Judge 6

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