STATE v. PENA

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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: 06/28/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SEBASTIAN PENA, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0247 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006224-007DT The Honorable Janet E. Barton, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Stephen R. Collins Attorneys for Appellant Phoenix G O U L D, Judge ¶1 resulting property. Sebastian sentences Pena of appeals one count from of his conviction trafficking in and stolen ¶2 Pena s counsel 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), advising this Court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Pena was afforded the opportunity to file a supplemental brief in propria persona; however, he did not do so within the time limit and we will only consider the record and counsel s opening brief on appeal. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and -4033(A)(1) (2010).1 Finding no reversible error, we affirm. Facts and Procedural History ¶4 Victim drove his 1992 Chevy Silverado truck over to Pena s house to hang out and drink beer. Victim parked the truck on the front lawn and left the keys in the ignition so that he could play music from the truck s stereo. After a couple of hours, Pena jumped in Victim s truck, turned it on, 1 Unless otherwise specified, we cite to the current version of the applicable statutes because no revisions material to this decision have occurred. 2 and drove off. Pena did not have permission to drive the truck; when he did not return, Victim called the police and reported the truck stolen. ¶5 The next day, an undercover detective received a call from an individual named Michael seeking to sell a stolen truck. The detective arranged to meet Michael to buy the vehicle. undercover Michael detective and Pena arrived regarding at the location Victim s and truck; The spoke during with their conversation Pena told the detective the truck was hot and had been reported stolen. The detective negotiated with Pena and Michael and eventually purchased the truck for $400. The entire transaction was recorded on videotape. ¶6 stolen Pena was property transportation. charged and with one one count count of of theft trafficking in of of means Pena was present and represented by counsel throughout the pre-trial stages; however, when he did not appear on the first day of trial, he was tried in absentia. At trial, the State presented the videotaped transaction showing Pena s participation in selling the truck in addition to the testimony of Victim and the undercover detective. The jury found Pena guilty of trafficking in stolen property and not guilty of theft of means of transportation. ¶7 At sentencing, the court priors. The State alleged, and the court found, that Pena had 3 held a trial on Pena s two historical priors. The court also found that Pena was currently on probation for an offense he committed in 2009, and he violated his probation by trafficking in stolen property. committing the offense of Accordingly, the court revoked Pena s probation and sentenced him to a super mitigated term of four months for the 2009 offense. Consecutive to this sentence, the court sentenced Pena to the presumptive term of eleven and a quarter years property. for the conviction of trafficking in stolen Pena timely appealed. Conclusion ¶8 We have read and considered counsel s brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the finding of guilt. Pena was represented critical stages of the proceedings. by counsel at all At sentencing, Pena and his counsel were given an opportunity to speak and the court imposed a legal sentence. ¶9 Counsel s representation in obligations this appeal have pertaining ended. to Counsel Pena s need do nothing more than inform Pena of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the 4 Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Pena shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.2 /S/ ___________________________________ ANDREW W. GOULD, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ ANN A. SCOTT TIMMER, Judge 2 Pursuant to Arizona Rule of Criminal Procedure 31.18(b), Defendant or his counsel has fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 5

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