STATE v. MORTON

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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: 09/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JEREMY MICHAEL MORTON, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0369 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-105227-001DT The Honorable Roger E. Brodman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Defendant Jeremy Michael Morton appeals his conviction and sentence for possession or use of dangerous drugs. 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). Defendant s appellate counsel has searched the record on appeal and found no arguable non-frivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was brief given the opportunity to file a supplemental in propria persona but did not do so. ¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 On counts: Forgery Forgery April Device 4, 2010, (Count (Count 2); Defendant 1); was Criminal Possession of charged with Possession Drug five of a Paraphernalia (Count 3); Theft (Count 4); and Possession or Use of Dangerous Drugs (Count 5). Counts 1, 2, and 4 were severed. 3 was also severed. issue in this case. Later, Count Therefore Count 5 is the only count at Defendant was arraigned and entered a not guilty plea on all counts. ¶4 The pertinent facts follow. On January 14, 2010, Defendant contacted a Big O Tires store in Scottsdale, Arizona, and inquired about buying tires and rims for his gold-colored Infiniti SUV (the vehicle ). Defendant informed Big O Tires that he would be paying for the tires and the rims with a 2 business check. The same day, Defendant had the tires and rims installed, at a cost of $1,400. Defendant paid the bill with an Arizona s Finest Auto Detail business check. Big O Tires was informed that the A few days later, check was counterfeit. Defendant again contacted the tire store and said that he was interested in contacted the buying more Scottsdale tires Police and rims. The Department. tire store Defendant was identified from a photograph lineup as the person who paid for the tires and rims with a counterfeit check. ¶5 On January 27, 2010, a search warrant was issued for Defendant s vehicle and residence. Aaron Crawford pulled over passenger in the vehicle. the Later that day, Detective vehicle. he Defendant was from under arrest. the vehicle was a Crawford recognized Defendant from photographs that he had been shown. that Defendant Crawford advised Defendant Crawford and proceeded search his to person, remove and he discovered a small plastic baggie with a seal at the top that contained a white crystalline substance. The substance was tested in the Scottsdale crime laboratory and was determined to be methamphetamine. ¶6 After considering the evidence, the jury found Defendant guilty of possession or use of dangerous drugs (Count 3 5).1 and The court entered a combined judgment on Counts 1, 4, and 5 sentenced timely Defendant appeals his jurisdiction under Constitution and to ten conviction Article A.R.S. 6, years and in prison. Defendant sentence. Section 9 §§ 12-120.21(A)(1), of We the 13-4031, have Arizona and 13- 4033(A)(1). DISCUSSION ¶7 was The record reveals no fundamental error. represented by counsel at all critical Defendant proceedings. Defendant was absent from the second day of trial. The court found that because Defendant was not present, he voluntarily waived his appearance. Ariz. R. of Crim. P. 9.1 states that a defendant: may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it. The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear. Defendant was present at the first day of trial. Defendant had notice that the trial would continue the next day at 10:15 a.m. The court did not err by finding that Defendant voluntarily absented himself from trial. 1 In a separate proceeding, Defendant pled guilty to Count 1 (forgery) and Count 4 (theft). 4 ¶8 The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly composed of eight jurors and two alternates. P. 18.1(a); A.R.S. § 21-102(B). See Ariz. R. Crim. The evidence that the state presented at trial was properly admissible. returned its verdict, the court received After the jury and considered a presentence report and entered a combined sentence on Counts 1, 4, and 5. The court, in its discretion, imposed a legal sentence of 10 years in prison on Count 1 and 10 years on Count 5, to be served concurrently.2 incarceration credit of Defendant received presentence 246 days, which was correctly calculated. CONCLUSION ¶9 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Accordingly, we affirm Defendant s conviction and sentence. ¶10 Defense counsel s appeal have come to an end. obligations pertaining to this See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has thirty days from the date of this decision to file 2 Defendant received 3 years of probation for Count 4. 5 a petition for review in propria persona. 31.19(a). See Ariz. R. Crim. P. Upon the court s own motion, Defendant has thirty days from the date of this decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ____________________________________ ANDREW W. GOULD, Judge 6

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