State v. McCluskey

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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. JOHN DENNIS McCLUSKEY, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CR 09-0885 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200900342 The Honorable Andrew W. Gould, Judge CONVICTION AND SENTENCE AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Michael A. Breeze By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Phoenix Yuma J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d conviction felony. 878 (1969), of theft of following means of John Dennis McCluskey s transportation, a Class 3 McCluskey s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). McCluskey was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm McCluskey s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2 entered One a night school at van Kofa and High School drove away in in it. 1 Yuma, McCluskey McCluskey was apprehended and gave a written statement to police, which was read to the jury. In the statement, McCluskey admitted he took the van and stated, I tried to sell it and no one wanted it. I ended up parking it at the house of someone I know was in jail. I took the license plate off and threw it in the dumpster down the road. ¶3 At trial, McCluskey testified to the same facts. After the jury convicted McCluskey, the court found he had two historical prior felony convictions and sentenced him to 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against McCluskey. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 the presumptive term of 11.25 years imprisonment with 293 days presentence incarceration credit. ¶4 McCluskey timely appealed. 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 (2010) and -4033 (2010). 2 DISCUSSION ¶5 McCluskey whether his asked appointed his trial counsel counsel to was request we ineffective. address This argument, however, is not properly raised on appeal but instead must be raised in a proceeding for post-conviction relief. State v. Torres, 208 Ariz. 340, 345, ¶ 17, 93 P.3d 1056, 1061 (2004) (citations omitted). ¶6 The record reflects McCluskey received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. The court The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with one alternate. The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. 2 The jury returned a unanimous Absent material revisions after the date offense, we cite a statute s current version. 3 of an alleged verdict, which was confirmed by juror polling. The court considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal sentence. CONCLUSION ¶7 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to this appeal have ended. Defense counsel need do no more than inform McCluskey of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission petition for review. to the Arizona Supreme Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). On the court s own motion, McCluskey has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. McCluskey has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICK IRVINE, Judge /s/ ANN A. SCOTT TIMMER, Judge 4

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