State v. Cordova
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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 LLOYD CORDOVA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/12/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 10-0237 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR2008-0766 The Honorable Steven F. Conn, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Carlene H. Lacey, Mohave County Public Defender By Jill L. Evans, Appellate Defender Attorneys for Appellant Kingman B R O W N, Judge ¶1 John Lloyd Cordova appeals the trial court s revoking his probation and the resulting disposition. order Counsel for Cordova 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). counsel requests that fundamental error. Finding no arguable issues to raise, this court search the record for Cordova was granted the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶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). ¶3 Finding none, we affirm. In June 2009, a jury found Cordova guilty of one count of aggravated driving with a blood alcohol content of .08% or more as a third offense within the preceding eighty-four months ( Count 1 ), and one count of aggravated driving while under the influence of intoxicating liquor as a third offense within the preceding eighty-four months ( Count nonrepetitive class four felonies. 2 ), both nondangerous, In August 2009, the trial court suspended the imposition of sentence and placed Cordova on probation for five years. As a condition of probation, the court ordered incarceration for four months. Pursuant to term seventeen of his probation conditions, Cordova was ordered not to consume any alcoholic substances. ¶4 revoke In November 2009, a probation officer petitioned to Cordova s seventeen. At probation, the violation alleging hearing, 2 a violation the probation of term officer testified that she met with Cordova the day released from his four-month prison sentence. after he was During the course of the meeting, she became suspicious because Cordova was being uncooperative and smelled of alcohol. She then requested that another officer perform a breath test with a handheld device, which indicated the presence of alcohol in Cordova s blood. Cordova admitted he [had] been drinking and that he drank a bottle of blush the previous evening. ¶5 The court preponderance seventeen of because found the he that the evidence consumed State that had proven Cordova alcohol. The violated court by a term sentenced Cordova to a mitigated, concurrent prison term of 1.5 years for both Counts 1 and 2. He was credited with 229 presentence incarceration credit for both counts. 1 days of The court also ordered a two-month term of community supervision, to be served consecutively with the prison term. Cordova then filed a timely notice of appeal. ¶6 We have reviewed error and find none. the entire record for reversible All of the proceedings were conducted in 1 The record reveals that the trial court erred in calculating Cordova s presentence incarceration credit. At most, Cordova should have received 227 days, rather than 229 days. However, the State did not challenge the calculation by filing a cross-appeal and thus we cannot correct it. See State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (recognizing that absent a timely cross-appeal, appellate courts cannot correct an illegally lenient sentence that favors an appellant). 3 accordance with the Arizona Rules of Criminal Procedure. The record shows Cordova was present and represented by counsel at all pertinent opportunity to stages of the proceedings, speak at the disposition was afforded hearing, sentence imposed was within statutory limits. and the the Accordingly, we affirm the trial court s judgment finding that Cordova violated his probation and we affirm the resulting disposition. ¶7 Upon the filing of this decision, counsel shall inform Cordova of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds 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, 156-57 (1984). Cordova shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ DIANE M. JOHNSEN, Presiding Judge /s/ ______________________________ JOHN C. GEMMILL, Judge 4
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