STATE v. MONTANO

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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. RUDY MONTANO, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 2/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0800 DEPARTMENT E MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2011-005994-001 DT The Honorable Roger E. Brodman, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Cory Engle, 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 Rudy Montano (defendant), after searching the entire record, has been unable to discover any arguable questions of law and has filed a brief requesting 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 friend On the evening of November 28, 2010, defendant and his K.Y. became convenience store. involved in an argument outside of a F.R. noticed the altercation while returning from the convenience store to his vehicle, but did not interject himself. Defendant approached F.R., asked him Do you want to die young? and threatened to use F.R. s license plate number to later find him. Defendant displayed a knife and began to swing it in a stabbing motion toward F.R., who yelled for help and backed away. ¶3 scene. Defendant pursued F.R. initially, but then left the F.R. reported the incident to the convenience store clerk, O.O., who called the police. locate defendant. The police were unable to Minutes later, K.Y. entered the convenience store and asked to use the telephone. Defendant returned to the convenience store to argue with her once more. After K.Y. left the premises, defendant approached O.O. holding the knife, and told him that if he called the police defendant would kill him. 2 Police arrested defendant outside a nearby bar. Defendant acknowledged that he had threatened F.R. ¶4 The state charged defendant with one count of aggravated assault, a class 3 dangerous felony (count 1); one count of disorderly conduct, a class 6 felony (count 2); one count of obstructing criminal investigations or prosecutions, a class 5 felony (count 3); and one count of threatening intimidating, a class 1 misdemeanor (count 4). guilty to the fourth count prior to trial. or Defendant pled At trial, defendant testified that F.R. had approached him and that he had acted only in response to threats by F.R. ¶5 trial. felony Defendant was convicted of all counts after a jury The trial court found that defendant had four prior convictions. The court sentenced defendant to a presumptive term of 11.25 years in prison for count 1 and a presumptive concurrently. term of 5 years for count 3, to be served As to count 2, the court sentenced defendant to a presumptive term of 3.75 years, to be served consecutively to count 1. The court sentenced defendant to a term of 6 months in jail on count four. The court gave defendant credit for 329 days of presentence incarceration. ¶6 Defendant timely appealed. We have read and considered counsel s brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. 3 We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. was adequately So far as the record reveals, defendant represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), defendant s counsel s obligations in this appeal are at an end. 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. ¶7 We affirm the convictions and sentences. /s/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge 4

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