State v. Sanders

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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. BRIAN KEITH SANDERS, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CR 09-0775 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-156273 DT The Honorable Shellie Smith, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender by Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Brian Keith Sanders (defendant) convictions and the sentences imposed. appeals from his Defendant=s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity supplemental brief, which he has not done. to file a See State v. Clark, 196 Ariz. 530, 537, & 30, 2 P.3d 89, 96 (App. 1999). ¶2 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, & 2, 68 P.3d 407, 408 (2003). Finding no reversible error, we affirm. ¶3 Defendant was charged by information with: Count One possession or use of narcotic drugs, a class four felony, in violation 3408(A)(1) of Arizona (2010); Revised and Statutes Count Two - (A.R.S.) section possession of 13drug paraphernalia, a class six felony, in violation of A.R.S. § 133415(A) (2010). ¶4 The following evidence was presented at trial. On December 15, 2006, while conducting routine patrol, Officer M.C. 2 of the Phoenix Police Department noticed defendant and another individual exit an apartment. The officer observed both individuals looking at a motorcycle that was for sale. The officer approached the individuals and asked them how they were doing. Defendant did not answer, he just stared at the officer. Officer M.C. repeated the question and defendant was again nonresponsive. ¶5 Officer M.C. then asked defendant if he would mind showing him what was in his pockets. Defendant began pulling items officer out of his pockets, but the perceived that defendant was being evasive and trying to hide something. ¶6 Officer M.C. asked defendant if he could search his person and defendant consented. Officer cigarettes in defendant s shirt pocket. M.C. only found The officer then asked defendant if he had any drugs or drug paraphernalia in his backpack and defendant responded I don t think so, no, and consented to a search. ¶7 Officer M.C. found a cigarette pack in the backpack containing a glass crack pipe with burnt residue and brillo in it. be He also found a clear baggie containing what appeared to crack cocaine. Defendant stated he did not have any knowledge of the items and claimed the officer placed them there to frame him. 3 ¶8 R.S. of the Phoenix Police Department Crime Laboratory testified that the substance retrieved from defendant s cigarette pack was cocaine base and weighed 100 milligrams. He further testified that it was in a usable form and condition. ¶9 After a two-day trial, the jury found defendant guilty as charged. The trial court sentenced defendant to eighteen months of supervised probation on both counts. The trial court further ordered the sentences to run concurrently. ¶10 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. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. ¶11 After obligations appeal have the pertaining ended. filing to of this defendant=s Counsel need do decision, counsel=s representation no more than in this inform defendant of the status 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156- 4 57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed. _/s/______________________________ PHILIP HALL, Judge CONCURRING: /s/ SHELDON H. WEISBERG, Presiding Judge . /s/ JOHN C. GEMMILL, Judge . 5

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