State v. Carlyle
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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.Sup.Ct. 111(c); ARCAP 28(c);
Ariz.R.Crim.P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
1 CA-CR 10-0748
Appellee,
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT D
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
v.
MARCOS GUILLERMO CARLYLE,
Appellant.
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-164389-001 DT
The Honorable Cari A. Harrison, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Division
Attorneys for Appellee
Phoenix
Maricopa County Public Defender
By
Joel M. Glynn, Deputy Public Defender
Attorneys for Appellant
Phoenix
I R V I N E, Presiding Judge
¶1
This
appeal
is
filed
in
accordance
with
Anders
v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz.
297, 451 P.2d 878 (1969). Counsel for Marcos Guillermo Carlyle
asks
this
Court
to
search
the
record
for
fundamental
error.
Carlyle was given an opportunity to file a supplemental brief in
propria persona. Carlyle has not done so. After reviewing the
record, we affirm his convictions and sentences for burglary in
the second degree and possession of burglary tools.
FACTS AND PROCEDURAL HISTORY
¶2
We
view
the
facts
in
the
light
most
favorable
to
sustaining the trial court’s judgment and resolve all reasonable
inferences against Carlyle. State v. Fontes, 195 Ariz. 229, 230,
¶ 2, 986 P.2d 897, 898 (App. 1998). Carlyle and three others
entered a vacant house and proceeded to tear copper pipes from
the walls using a hammer. A neighbor heard loud banging and
called the police. Carlyle was caught climbing out the window.
After police read him his Miranda rights, Carlyle admitted that
he entered the house intending to take the copper pipes to sell
as scrap metal. The owner of the home testified Carlyle did not
have permission to do so.
¶3
The State charged Carlyle with burglary in the second
degree, a class 3 felony (Count 1), and possession of burglary
tools, a class 6 felony (Count 2). Despite prior notices and
several continuances, Carlyle failed to appear and the trial was
conducted in absentia. At the close of the evidence, the trial
court
properly
instructed
the
jury
on
the
elements
of
the
offenses. It also instructed the jury not to speculate as to why
2
Carlyle did not appear or to hold that as evidence of guilt.
Carlyle was convicted as charged. The jury found that Carlyle
had accomplices and committed the offenses for pecuniary gain.
¶4
The trial court conducted the sentencing hearing in
compliance with Carlyle’s constitutional rights and Rule 26 of
the
Arizona
Rules
of
Criminal
Procedure.
Through
fingerprint
evidence and witness testimony, the State proved that Carlyle had
three historical priors for sentencing purposes. The State also
proved that Carlyle was on probation at the time of the offenses.
The trial court sentenced Carlyle to presumptive prison terms of
11.25 years for Count 1 and 3.75 years for Count 2, to be served
concurrently,
with
credit
for
212
days
of
presentence
incarceration. The trial court also imposed restitution in the
amount of $9077.55. For the probation violation, Carlyle was also
sentenced to a one year prison term to be served consecutive to
these sentences.
DISCUSSION
¶5
We
review
Carlyle’s
convictions
and
sentences
for
fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812
P.2d 626, 628 (1991). Counsel for Carlyle has advised this Court
that after a diligent search of the entire record, he has found
no
arguable
question
of
law.
We
have
read
and
considered
counsel’s brief and fully reviewed the record for reversible
error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find
3
none. All of the proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. So far as the record
reveals, Carlyle was represented by counsel at all stages of the
proceedings, and the sentence imposed was within the statutory
limits. We decline to order briefing and we affirm Carlyle’s
convictions and sentences.
¶6
Upon
the
filing
of
this
decision,
defense
counsel
shall inform Carlyle of the status of his appeal and of his
future
unless,
options.
upon
Defense
review,
counsel
counsel
has
finds
an
no
further
issue
obligations
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, 15657 (1984). On the Court’s own motion, Carlyle shall have thirty
days from the date of this decision to proceed, if he desires,
with
a
pro
per
motion
for
reconsideration
or
petition
review.
CONCLUSION
¶7
We affirm.
/s/
PATRICK IRVINE, Presiding Judge
CONCURRING:
/s/
JOHN C. GEMMILL, Judge
/s/
PHILIP HALL, Judge
4
for
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