State v. Tunney

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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: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. LESTER MICHAEL TUNNEY, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0274 1 CA-CR 11-0275 (Consolidated) DEPARTMENT A MEMORANDUM DECISION (Not for PublicationRule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. S0300-CR2010-00631 S0300-CR2010-00897 The Honorable Jacqueline Hatch, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Coconino County Public Defender By H. Allen Gerhardt, Coconino Public Defender Attorney for Appellant Phoenix Flagstaff 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 Lester Michael Tunney (defendant) that, has advised us after searching the entire record, he has been unable to discover any arguable questions of law and has filed a brief requesting Anders review of the record. this court conduct an Defendant has been afforded an opportunity to file a supplemental brief in propia persona, and he has not done so. ¶2 Defendant DUI. The priors in trial an pled court guilty found to two charges defendant aggravation/mitigation had of aggravated three historical hearing. Defendant was sentenced to concurrent 10 year sentences in prison for each aggravated DUI charge in accordance with the enhancement provisions of Arizona Revised Statute (A.R.S.) section 13-703(C) (2010), and he received 233 days of presentence incarceration credit. Defendant made a motion to modify the sentence under Arizona Rule of should have found historical prior, Criminal only Procedure one defendant s 24.3, historical sentence claiming the prior. With one subject to would be enhancement by A.R.S § 13-703(B)(2) not § 13-703(C). court denied the motion. ¶3 court The trial Defendant timely appealed. 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. We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules 2 of Criminal Procedure, and the sentence imposed was within the statutory limits. 584-85, 684 P.2d Pursuant to State v. Shattuck, 140 Ariz. 582, 154, 156-57 (1984), defendant s obligations in this appeal are at an end. ¶4 We affirm the sentences. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ MARGARET H. DOWNIE, Judge 3 counsel s

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