State v. McKinney

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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. CRAIG NELSON MCKINNEY, Appellant. DIVISION ONE FILED: 11/18/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 10-0041 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-165764-001 DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore 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 Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Craig Nelson McKinney has advised us that, after searching the entire record, he 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. Defendant was given an opportunity to file a supplemental brief, and has not filed one. FACTS 1 ¶2 Defendant was stopped by Phoenix Police at approximately 12:30 a.m. on October 4, 2007, because the lights on the car he was driving were not illuminated. car in the middle of the road. He only He stopped his had an Arizona Identification Card because his license had been cancelled, and he admitted arrested to having after the consumed two investigating beers. officer Defendant was conducted the Horizontal Gaze Nystagmus test and determined Defendant showed signs of impairment, and Defendant was unable to complete the field sobriety tests. Subsequent breathalyzer tests revealed Defendant s blood alcohol content ( BAC ) to be .363 and .361. ¶3 Defendant was charged with aggravated DUI and aggravated DUI with a BAC over 0.08, class four felonies. He pled as not charged. guilty He and was was tried. sentenced to 1 The four jury months convicted in him prison, with 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 thirty-three days presentence incarceration credit, followed by a four-year term of probation. ¶4 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 134031, and -4033(A)(1) (2010). DISCUSSION ¶5 We have read and considered counsel s brief, and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at We find none. 881. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was The record, as presented, reveals that represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. CONCLUSION ¶6 After this to represent obligation decision has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d counsel s 154, to the See State v. 157 (1984). Defendant can, if desired, file a motion for reconsideration or 3 petition for review pursuant to the Arizona Rules of Criminal Procedure. ¶7 Accordingly, we affirm Defendant s convictions sentences. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 4 and

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