State v. Lusania

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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. VINCENT JOSEPH LUSANIA, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0669 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-169549-001 DT The Honorable Lisa Ann Vandenberg, Judge Pro Tem AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorney for Appellee Phoenix Maricopa County Public Defender s Office By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Vincent Joseph Lusania appeals from his convictions and sentences on two counts of aggravated driving or actual physical control of a vehicle while under the influence intoxicating liquor or drugs, class four felonies. of Lusania s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting examine the record for reversible error. 528 U.S. 259 (2000). that this court See Smith v. Robbins, Lusania was afforded the opportunity to file a supplemental brief in propria persona but did not do so. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On October 26, 2007, at approximately 12:30 in the morning, Arizona Department of Public Safety ( DPS ) Officer A.G. was stopped at a freeway off ramp facing east when he observed a sports utility vehicle ( SUV ) travel past him going northbound at a speed exceeding the posted speed limit. The SUV s driver s side window was down and Officer A.G. observed a Hispanic male driving the vehicle. follow the SUV. He was driving Officer A.G. decided to an unmarked Crown Victoria equipped with a siren and lights in the front grill and back window. ¶4 Officer A.G. was following the SUV northbound when the 2 SUV approached an intersection and turned west, running through a red light. Officer A.G. turned on his car s lights and siren and continued to follow the SUV westbound. As the SUV traveled westbound it reached speeds of 85 to 90 miles per hour. The SUV approached an intersection with a red light and turned north without coming to a complete stop. The SUV eventually pulled into a driveway in front of a house. During the entire pursuit, Office A.G. never lost sight of the SUV. ¶5 Once at the residence, Officer A.G. parked his car behind the SUV and got out. The SUV s two occupants got out of the SUV at the same time Officer A.G. was exiting his car. Officer A.G. approached the driver s side door of the SUV and made contact with Lusania, the occupant who was in the driver s seat. Lusania was walking towards the house when Officer A.G. stopped him. The other occupant of the SUV, Lusania s wife, went inside the house. ¶6 Officer A.G. recognized Lusania as the man he saw driving the SUV when it initially passed him while he was on the freeway off ramp. He asked Lusania why he was driving so fast and Lusania indicated he needed to get his wife home. While speaking with Lusania, Officer A.G. observed that Lusania had bloodshot, watery eyes beverage on this breath. and had the smell of an alcoholic Officer A.G. asked Lusania to do a field sobriety test and Lusania declined. 3 Officer A.G. placed Lusania under arrest for DUI and Lusania was taken to jail. approximately 2:02 that same morning, a sample blood was drawn pursuant to a search warrant. of At Lusania s The blood sample was tested and it was determined that Lusania s blood alcohol concentration was .178 percent. It was later determined that Lusania was driving on a suspended license. ¶7 On November 3, 2008, Lusania was indicted on two counts of aggravated driving or actual physical control of a vehicle while under drugs. The first count was for driving while impaired to the slightest degree. alcohol the influence of intoxicating liquor or The second count was for driving with a blood concentration of .08 or more. Both counts were aggravated because they occurred while driving on a suspended license. After a jury trial in June 2009, Lusania was found guilty as charged. Lusania to incarceration a For each conviction, the court sentenced four-month credit of prison 64 term, days, with followed presentence by supervised probation for three years, to be served concurrently. ¶8 Lusania pursuant to timely Arizona appealed Revised and Statutes we have ( A.R.S. ) jurisdiction sections 12- 120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). DISCUSSION ¶9 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 4 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Lusania was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶10 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Lusania of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Lusania has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶11 Lusania s convictions and sentences are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/______________________________ SHELDON H. WESIBERG, Presiding Judge ___/s/______________________________ PHILIP HALL, Judge 5

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