State v. Wach
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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. ) ) ALBERT STANLEY WACH, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07/12/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0526 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-177450-001 SE The Honorable Lisa M. Roberts, Judge Pro Tem AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce F. Peterson, Maricopa County Legal Advocate By Frances J. Gray, Deputy Legal Advocate Attorney for Appellant Phoenix D O W N I E, Judge ¶1 Albert Stanley Wach appeals his conviction for aggravated assault, a class three dangerous felony and violation of Arizona Revised Statutes ( A.R.S. ) section 13-1204. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, asked that we review the record for fundamental error. and See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Wach was given an opportunity to file a supplemental brief in propria persona, but he did not do so. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 The victim and his brother, Brian, were at a bar. A patron named Bang approached Brian and became verbally abusive. Convinced he was going to be assaulted, [himself and] threw the first punch. Brian protected As the men were punching each other, Wach began choking Brian from behind. ¶3 The brothers left the bar, whereupon Bang ran outside and began attacking Brian. When the victim tried to intervene, Wach stood in front of him. As the victim tried to walk around him, Wach bumped into him to block his passage. kicked Wach in the face. The victim Wach stabbed the victim in his side. 2 The victim was taken to the hospital, where it was discovered that a knife or sharp object had sliced his liver. ¶4 The victim identified Wach as his assailant in a photo line-up. Wach s first trial ended in a mistrial after the jury could not reach a unanimous verdict. During deliberations in the second trial, after the alternates were released, a juror reported that she had been approached by Wach s sister. The sister told the juror that they knew each other in high school. The juror expressed concern that she was known by Wach s sister, should the verdict not come out in the Defendant s favor. The parties was agreed to release this called back to replace her. juror, and an alternate The court instructed the jury to begin deliberations anew. ¶5 a The jury found Wach guilty of aggravated assault, with special aggravators: physical finding of dangerousness. It also found two the offense involved the infliction of serious injury, undergo surgery. and Wach s conduct required the victim to The court imposed an aggravated term of 9 years imprisonment, with 171 days of presentence incarceration credit. DISCUSSION ¶6 We have read and considered the brief submitted by defense counsel and have reviewed the entire record. fundamental error. We find no All of the proceedings were conducted in 3 compliance with the Arizona Rules of Criminal Procedure, and the sentence present imposed at all was within critical represented by counsel. instructed. The jury the phases statutory of the range. Wach was proceedings and was The jury was properly impaneled and instructions were consistent with the offense charged. ¶7 Though an issue arose during deliberations, the court promptly dismissed the juror at issue. There is no indication the influenced; remaining jurors were improperly merely advised juror number five had been released. agreed to releasing alternate. 252, 256 the juror and replacing they were The defense her with an Cf. Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d (1953) ( By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error. ). CONCLUSION ¶8 We affirm Wach s conviction and sentence. Counsel s obligations pertaining to Wach s representation in this appeal have ended. the status Counsel need do nothing more than inform Wach of 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Wach shall have thirty days from the 4 date of this decision to proceed with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ JON W. THOMPSON, Judge 5
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