State v. McAllister

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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. ) ) JONATHAN MCALLISTER, SR., ) ) Appellant. ) _________________________________ ) 1 CA-CR 08-1067 DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2008-120957-001 DT The Honorable Michael D. Jones, Judge AFFIRMED Terry Goddard, 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 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 Jonathan McAllister Sr. (defendant) has advised that, after searching the entire record, she has been unable to discover any arguable questions of law and has filed a brief requesting this court to 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. 1 At defendant s request, however, his counsel asks this court to search the record for error with regard to six issues: 1) the trial court s denial of defendant s motion for a mitigation specialist, 2) the trial court s denial of defendant s motion for state funding, 3) the denial of defendant s motion to continue, 4) the denial of defendant s motion prior to preclude felony the state s convictions, 5) untimely the filed allegation of ineffective assistance of defendant s advisory counsel, 2 and, 6) the trial court s failure 1 Defendant has been granted several extensions of time in which to file a supplemental brief. By order dated May 7, 2010, we advised defendant that if he did not file a supplemental brief by June 9, 2010, we would consider only the brief submitted by defendant s counsel. 2 Defendant suggests that he was prejudiced because of ineffective assistance of his advisory counsel. Ineffective assistance of counsel claims are not properly before us. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) ( a defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding not before trial, at trial, or on direct review. ). Therefore, we decline to consider this issue. 2 to rule on defendant s motion to vacate judgment. 3 For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In complaint April with 2008, two defendant counts marijuana, class 3 felonies. indictment that did not of was sale charged or by direct transportation of The state then filed a supervening alter the prior complaint. The following evidence was presented at trial. 4 ¶3 On August 24, 2007 and August 29, 2007, defendant sold marijuana to undercover Phoenix police officer A.D. On these two occasions, officer A.D. purchased $40 worth of a substance that the Phoenix marijuana. Crime Officer A.D. Laboratory spent later nearly two determined hours to total be with defendant and he was 100 percent sure that the man who sold him the marijuana was defendant. ¶4 After a jury trial, defendant was found guilty of both counts. The court conducted a hearing before the same jury to 3 Defendant contends that the trial court erred in failing to rule on his motion to vacate judgment. However, because we note that the trial court denied defendant s motion on April 28, 2009, this issue is moot. 4 On appeal, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against defendant. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 3 determine if defendant was on probation at the time of offense. Defendant s probation officer, T.L., testified that she was employed as a probation officer and that defendant was assigned to her as a probationer. T.L. further testified that defendant was on probation for a previous felony when he committed the current offenses. The jury found that defendant had been on probation at the time of both offenses. court found conviction. both count that defendant had one Additionally, the trial historical prior felony Defendant was sentenced to 6.5 years in prison for 1 and count 2, to be served concurrently, and received 92 days of presentence incarceration credit. 5 ¶5 Defendant sentences. 9 of the timely appealed his convictions and We have jurisdiction pursuant to Article 6, Section Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 and -4033(A)(1) (2010). DISCUSSION ¶6 In Anders appeals, we review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). 1. Denial of Defendant s Motion for a Mitigation Specialist 5 Defendant was sentenced under former Arizona Revised Statutes (A.R.S.) § 13-702 and § 13-702.01 which were repealed by Ariz. Sess. Laws 2008, Ch. 301, § 24 and § 25 respectively, effective January 1, 2009, and the substantive provisions placed in other statutory sections. This does not affect defendant s sentence. 4 ¶7 Defendant contends that the trial court erred when it denied his request to appoint him a mitigation specialist. During the hearing on the motion, the trial court explained its ruling by order[ed] stating, because probation. it could [N]o the less crime than was the presumptive committed while affect the fact that the law were on requires sentence you to at least a presumptive term. because be So if I found 300 million mitigating circumstances, not specialist you can was the not crimes necessary were here for committed the while to A mitigation simple fact defendant probation, mitigated sentences were not available. 6 alleged no aggravating factors. me was that on The state The trial court was statutorily bound to give defendant at least presumptive sentences, which it did. 2. Thus, the defendant s argument is without merit. Denial of Defendant s Motion for State Funding ¶8 Defendant argues that the trial court erred when it denied his motion for state funding so that he could obtain various office supplies, a legal 6 dictionary, and a standard Former A.R.S. § 13-604.02(B)(2007)(renumbered as § 13708(C)(2010)) states that if a person commits a felony while on probation, he/she can be sentenced to no less than the presumptive sentence. Here, the presumptive term for defendant was enhanced because of his historical prior felony conviction. Under Former A.R.S. § 13-604(B)(2007)(renumbered as § 13703(B)(2) and § 13-703(I)(2010)) a defendant with one prior felony conviction who is convicted of a class 3 felony has a presumptive sentence of 6.5 years. 5 dictionary. A defendant s constitutional right to court access is met where counsel or the defendant counsel is throughout provided the with either proceedings, regardless whether he/she has personal access to legal materials. Murray, 184 defendant Ariz. 9, proceeded 28, pro 906 per P.2d but 542, was counsel throughout the proceedings. 561 advisory State v. (1995). provided with of Here, advisory Accordingly, this argument is without merit. 3. Denial of Defendant s Motions to Continue ¶9 Defendant alleges that the court erred when it denied his motions to continue trial. Defendant argued in his motion that a continuance was proper because at that time his contact with his court-appointed investigator had been minimal and a continuance was necessary to ensure a fair trial. motion was set for hearing before the Defendant s continuance panel. Defendant failed to appear at the oral argument on his motion to continue. The court denied his motion. He again unsuccessfully moved for a continuance on the first day of trial. ¶10 A motion for continuance is addressed to the sound judicial discretion discretion is abused appellate tribunal. of it the will trial not court; be and, interfered unless with by that the Merryman v. Sears, 50 Ariz. 412, 415, 70 P.2d 943, 944 (1937) (quoting Arnett v. Peterson, 24 Ariz. 405, 6 408, 210 P. 683, 684 (1922)). We hold that the trial court did not denying abuse its discretion in defendant s motions to continue. 4. Denial of Defendant s Motion to Preclude State s Untimely Filed Allegation of Prior Felony Convictions ¶11 denial Finally, defendant raises as error the trial court s of his motion allegation of prior to preclude felony the state s convictions. We untimely review a filed trial court's decision to permit a prior-conviction allegation made fewer than twenty days before trial for an abuse of discretion. State v. Williams, 144 Ariz. 433, 442, 698 P.2d 678, 687 (1985). The trial transcript indicates that the state produced a copy of its allegation of historical priors, date-stamped July 23, 2008, well before the twenty day cutoff prior to trial. apparently misfiled and never However, the allegation was electronically received. The trial court found that the defendant was not prejudiced by the untimely filing because he had notice of the allegation at Moreover, his his settlement advisory conference counsel on received August a copy allegations when they were filed on July 23, 2008. defendant was aware that the state intended to 15, 2008. of the Therefore, enhance his sentence by alleging historical priors as it was discussed at length at his settlement conference. 7 Defendant was not unjustly prejudiced and the court did not abuse its discretion in denying the motion. CONCLUSION ¶12 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. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, defendant was adequately represented by advisory counsel at all stages of the proceedings, statutory limits. 584-85, 684 P.2d and the sentence imposed was within the Pursuant to State v. Shattuck, 140 Ariz. 582, 154, 156-57 (1984), defendant=s counsel=s obligations in this appeal are at an end. ¶13 We affirm the convictions and sentences. /s/ _______________________________ JON W. THOMPSON, Judge CONCURRING: /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge /s/ _________________________________ SHELDON H. WEISBERG, Judge 8

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