State v. Locy

Annotate this Case

Download PDF

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. ) ) CARROLL VIRGIL LOCY, ) ) Appellant. ) ) 1 CA-CR 10-0302 DIVISION ONE FILED: 01/20/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-130970-001SE The Honorable Silvia R. Arellano, Judge The Honorable Lisa Daniel Flores, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorney for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deuputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Presiding Judge ¶1 Carroll convictions for Virgil Locy possession ( Appellant ) or possession of drug paraphernalia. use of appeals dangerous from his drugs and Appellant s counsel has 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), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel record therefore requests fundamental error. that we review the for See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). allowed Appellant to file a This court has also supplemental brief in propria persona, but he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). Finding no reversible error, we affirm Appellant s convictions and sentences. PROCEDURAL HISTORY AND FACTS 1 ¶3 On May 14, 2007, Appellant was approached by two police officers while he was trespassing on private property. Pursuant to a lawful search, Appellant was discovered to have two baggies containing methamphetamines 1 in his pockets. We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 Appellant was then arrested and read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). ¶4 On May 16, 2007, Appellant was charged with two counts; Count 1 for the possession of use of a dangerous drug, a Class 4 felony, and Count 2 paraphernalia, a class 6 felony. for the possession of drug See A.R.S §§ 13-3407 (2010) and 13-3415 (2010). 2 ¶5 The State presented Appellant with agreement, but Appellant opted to go to trial. 3 a proposed plea An eight-member jury panel was selected and the case proceeded to trial on April 16, 2008. for all Appellant was represented at trial and was present portions of the trial. The State presented three witnesses, and Appellant testified on his own behalf. 4 2 We cite the current version of the applicable statute because no revisions material to this decision have occurred. 3 Prior to trial, Appellant moved to suppress the physical evidence obtained and statements elicited surrounding the arrest. Appellant initially contended the stop was unlawful; however, he later conceded the arrest was lawful and the search was incident to a lawful arrest. Following an evidentiary hearing, the court ruled that Appellant s statements concerning the presence of drugs were voluntarily made and admissible during the State s case-in-chief. Any statements made by Appellant after he was placed in handcuffs were only admissible for impeachment purposes if Appellant elected to testify. 4 Appellant testified the police planted the drugs on him. On cross-examination, Appellant admitted to two prior felony convictions. He also conceded he was on parole status at the time of the subject arrest. 3 ¶6 On April 17, 2008, the jury found Appellant guilty on both Counts. verdict, Appellant was not present for the reading of the and it was subsequently discovered eventually that apprehended he had absconded. ¶7 2010, Appellant and was was brought to court for in February, sentencing. At the sentencing hearing, Appellant made a statement to the court on his own behalf. Although historical priors were alleged, the details of the same were not offered or proven by the State. aggravating factors were found by the jury. Appellant to concurrent presumptive No The court sentenced sentences: 2.5 years incarceration for Count 1, and 1 year incarceration for Count 2. Appellant received credit for one hundred and seventy-four days of presentence incarceration. Counsel for Appellant filed a timely notice of appeal. ANALYSIS ¶8 We have reviewed error and find none. 5 the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. 5 The evidence From our review of the record, however, it appears that the trial court erred in calculating Appellant s pre-sentence incarceration credit. Appellant should have received credit for only one hundred and seventy-one days, rather than the one hundred and seventy-four days he actually received. Relying on State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (stating that absent a timely cross-appeal, this court cannot correct an illegally lenient sentence that favors an appellant), we do not correct this error. 4 presented at trial was substantial and supports the verdicts, and the sentences were statutory limits. properly presumptive and within the Appellant was represented by counsel at all stages of the proceedings and exercised his right to speak both at trial and during sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶9 After the filing of this decision, defense counsel s obligations appeal have pertaining ended. to Appellant s Counsel need do representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a reconsideration or petition for review. 5 pro per motion for CONCLUSION ¶10 Appellant s convictions and sentences are affirmed. _______________/S/___________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: ______________/S/__________________ PATRICIA K. NORRIS, Judge _____________/S/___________________ PATRICK IRVINE, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.