State v. Lipp

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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. ) ) GLEN MATTHEW LIPP, ) ) Appellant. ) _________________________________ ) DIVISION ONE FILED: 08/17/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0834 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2008-146526-001 DT The Honorable Carolyn K. Passamonte, Judge Pro Tem 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 Peg Green, 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 Glen Matthew Lipp (defendant) 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 this court to conduct an Anders review of the record. Defendant has been afforded an opportunity to file a supplemental brief in propia persona, and he has not done so. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Defendant was charged by indictment with four counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, all class 4 felonies. 1 The following evidence was presented at trial. 2 ¶3 On December 24, 2007, Phoenix Police Officers Neals and Talley pulled over a vehicle after it made a turn without 1 Specifically, defendant was charged with driving on a suspended license under the influence of intoxicating liquor, driving on a suspended license with an alcohol concentration over .08, driving under the influence of intoxicating liquor while having previous DUI convictions in the 84 months preceding this incident, and driving with an alcohol concentration over .08 while having previous DUI convictions in the 84 months preceding this incident. See Arizona Revised Statutes (A.R.S.) §§ 281381(A)(1)(2007), 1381(A)(2)(2007), 1383(A)(1)(2007), and 1383(A)(2)(2007). 2 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). 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) (citation omitted). 2 signaling. odor of Once the vehicle stopped, Officer Neals noticed the alcohol coming from defendant, who was driving the vehicle. Defendant told Officer Neals that he had been drinking earlier. Officer Neals arrested defendant and transported him to a DUI van where he was read his Miranda rights by Officer Leister. In breathalyzer department Smith, a the DUI test. where, trained van, defendant Defendant after was obtaining phlebotomist, blood for testing. refused then a took taken search a to to the warrant, sample of take a police Officer defendant s Defendant s blood was drawn at 4:42 a.m. and defendant was stopped by police at 1:20 a.m. Defendant s blood alcohol content was determined to be .175. ¶4 A records analyst from the Arizona Motor Vehicle Department, Jack Owens, testified that as of December 24, 2007, defendant s license was suspended and revoked. Additionally, Mr. Owens testified that the records indicated defendant was given adequate notice that his license was suspended and revoked. Mr. Owens also testified to certified court records from Superior the Court of California which confirmed that defendant had two prior DUI convictions within the 84 months preceding December 24, 2007. ¶5 A jury convicted defendant as charged. Defendant was sentenced to four months imprisonment with respect to each of 3 the four counts, all sentences to run concurrently, and four years probation upon release from prison. court credited incarceration. sentences. defendant with 48 Additionally, the days of presentence Defendant timely appealed his convictions and We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 134031 and -4033(A)(1) (2010). DISCUSSION ¶6 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. 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 desires, with a pro se motion for reconsideration or petition for review. 4 CONCLUSION ¶7 We affirm the convictions and sentences. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ SHELDON H. WEISBERG, Judge 5

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