State v. Lynch

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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. RALPH DALTON LYNCH, Appellant. DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0080 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. V-1300-CR-0820080527 The Honorable Tina R. Ainley, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Abigail Jensen, P.C. By Abigail Jensen Attorney for Appellant Prescott Ralph Dalton Lynch Appellant Florence P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) (1969). and State Counsel for v. Leon, Ralph 104 Dalton Ariz. 297, P.2d 878 ( Defendant ) Lynch 451 has advised us that after searching the entire record, she has been unable to discover any arguable questions of law and has filed a brief requesting us to conduct an Anders review of the record. This court granted Defendant an opportunity to file a supplemental brief, and he has done so. FACTS 1 ¶2 In August 2008, police officers received information from a U.S. Marshal that Defendant had been living in Yavapai County for at least ten days and had failed to register as a sex offender. The U.S. Marshal informed police that Defendant was in a grocery store and that he was going to wait for the police to arrive before questioning Defendant. Prior to being arrested, Defendant told the officers that he had been living in Yavapai County for approximately two weeks and that he believed he did not have to register as a sex offender. ¶3 He was charged with failure offender, a class four felony. 1 to register as a sex Prior to trial, the parties We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 stipulated that Defendant was convicted of sexual assault in 1983. He testified at trial and admitted a prior felony conviction. ¶4 The jury found him guilty as charged. As a result, Defendant was sentenced to five years in prison and was awarded 175 days of presentence incarceration credit. He appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A) 2010. DISCUSSION ¶5 Defendant, in his supplemental brief, makes the following arguments: (1) he was not required to register as a sex offender, (2) his counsel was ineffective, and (3) the police did not have probable cause to arrest him. ¶6 Defendant argues that he was not required to register as a sex offender because he was convicted of sexual assault before the sex offender registration statute was enacted. 2 The Arizona Supreme Court s decision in State v. Noble undermines Defendant s argument. ¶7 171 Ariz. 171, 829 P.2d 1217 (1992). In Noble, the defendants claimed that Arizona s sex offender registration statute violated the ex post facto clause of the Arizona and U.S. Constitutions 2 when applied to sex The sex offender registration statute, A.R.S. § 13-3821 (2010), was enacted in 1983. 3 offenders who were convicted before its enactment. 173, 829 P.2d at 1219. 171 Ariz. at The Court held that the sex offender registration statute is not an unconstitutional ex post facto law because it is regulatory in nature. at 1224. Consequently, like Noble, we Id. at 178, 829 P.2d reject Defendant s argument that he was not required to register as a sex offender. ¶8 Defendant ineffective. next Claims for argues that ineffective his counsel assistance of was counsel cannot be raised on appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Rather, such claims must be raised in a post-conviction relief proceeding under Arizona Rule of Criminal Procedure 32. Id. Consequently, we will not address the claim. ¶9 Finally, Defendant contends that the police did not have probable cause to arrest him. He argues that the failure to register as a sex offender charge in Yuma County should have been tried prior to this case. He then claims that because the Yuma County case was ultimately dismissed, the police may not have had sufficient probable cause to arrest him in this case. We disagree. ¶10 The dismissal of the Yuma County case does not dictate whether there was probable cause to arrest him in this case for failure to register as a sex offender. 4 Here, he told the police that he had been living in Yavapai County for a couple of weeks but did not believe he was required to register as sex offender. Although he was wrong about registering, the fact that he told police he had lived locally for approximately two weeks provided probable cause to arrest him. Consequently, we find no basis to reverse his conviction. 3 ¶11 We Defendant s have brief, reversible error. ¶12 read Having and and have considered searched the counsel s entire brief, record for See Leon, 104 Ariz. at 300, 451 P.2d at 881. addressed Defendant s supplemental arguments, and having searched the entire record for reversible error, we find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. CONCLUSION ¶13 After obligation to this decision represent has Defendant been in this filed, appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal and Defendant s future 3 options, unless counsel s A.R.S. § 13-3821 requires that sex offenders must register in each county where they remain for more than ten days. 5 review reveals an issue appropriate for submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d to the See State v. 154, 157 (1984). Defendant can, if he desires, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶14 Accordingly, we affirm Defendant s conviction and sentence. /s/ ___________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ DANIEL A. BARKER, Judge 6

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