State v. Omey

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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 DIVISION ONE FILED: 11/01/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. RICHARD LEROY OMEY, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0189 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-130905-002DT The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Richard Leroy Omey appeals from his conviction of attempted theft of means of transportation, a class four felony, in violation of Arizona Revised Statutes ( A.R.S. ) sections 13- 1001 (2010) and 13-1814 (2010). 1 Omey s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Omey was afforded the opportunity to file a supplemental brief in propria persona but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 view the in the light therefrom We convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). The following facts were revealed at trial. ¶3 On June 12, 2010, co-defendant Christopher Brooks, asked Omey to help him get a car running that Brooks had just purchased. Omey agreed, and they both went to a trailer park to pick up a 2001 Chevy Malibu ( Malibu ) at approximately 11:00 a.m. on June 13, 2010. About that same time, trailer park resident, Rita W., was taking her trash out when she saw three people milling about or working on the Malibu. 1 We cite to the current version because no revisions material to occurred. 2 Rita found it of the applicable statute this decision have since odd that these people were working on her neighbor Jason H s car. Rita moved closer for further inspection and saw that the Malibu s hood was up with Brooks under the hood, the dash was being torn up by Omey with a screwdriver like object, and the ignition switch was out with Omey trying to start the Malibu with the wires. After addressing both defendants, Rita called the trailer park manager, Marsha H. Marsha also looked into the Malibu and saw the dash torn out, the radio missing, and Omey trying to hotwire the car. ¶4 Next, Marsha went to Jason s trailer to notify him what was going on with the Malibu and told the defendants that she was going to call the police. When Marsha, Jason, and Rita came out to address the defendants, they packed up and hurriedly left the scene at a high rate of speed. Marsha saw the rear plate number of defendants fleeing vehicle and reported it to police when they arrived. ¶5 Officer V. responded to the call and interviewed Rita, Marsha, and Jason. Officer V. also inspected the Malibu. He saw that pieces of the ignition switch were on the floor of the car, a hole in the dash where the stereo used to be, and that the ignition had been punched out. ¶6 Later that same day, at approximately 3:00 to 4:00 p.m., Brooks and Omey returned to the trailer park. Marsha was again alerted to their presence and called the police a second 3 time. This time Officer E. took the call and arrived at the scene. Rita, Marsha, and Jason all spoke with Officer E. and re-identified Brooks and Omey as the ones trying to steal the Malibu earlier in the day. Officer E. also checked the Malibu and discerned that the stereo was missing, the dash was missing, and the ignition had been punched. a key or title to the Malibu Brooks was unable to produce upon Officer E. s request. However, Brooks did show Officer E. a bill of sale from a Brian H. ¶7 and At trial, Steve C. testified that he owned the Malibu was living with his brother Jason in the trailer park. Steve also testified that there had been no prior damage to the interior of the Malibu until the incident on June 13, 2010. Moreover, he testified that the Malibu was not for sale. Jason H. also testified that the Malibu was undamaged prior to the same incident. ¶8 Omey did not testify at trial. A jury found Omey guilty of attempt to commit theft of means of transportation. The State alleged that Omey had historical prior convictions. The trial court held a trial on priors and Omey was out of custody and not present. proved that Omey had The trial judge found that the State four prior felony convictions. Omey surrendered himself and appeared for sentencing on March 16, 2011. Omey was sentenced to the presumptive term of ten years 4 and was given thirteen days of presentence incarceration credit. ¶9 Omey timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21 (2003), 13-4031 (2010), and 13-4033 (2010). DISCUSSION ¶10 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Omey was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶11 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Omey of the disposition 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. Omey has thirty days from the date of this decision in which to proceed, if he desires, with a pro se petition for review. 5 motion for reconsideration or CONCLUSION ¶12 The conviction and sentence are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/___________________________ PATRICK IRVINE, Presiding Judge ___/s/___________________________ PHILIP HALL, Judge 6

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