STATE v. DELGADO

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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. BRIAN RICHARD DELGADO, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 10/23/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0888 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-114552-001 DT The Honorable William Brotherton, Judge AFFIRMED Thomas C. Horne, Arizona 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 Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Brian Richard Delgado (defendant) conviction and the sentence imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate 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 that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 On information March with 30, one 2011, count defendant of sale or was charged by transportation of dangerous drugs, a class two felony. ¶5 afternoon The following evidence was presented at trial. of May 7, 2010, while acting in an On the undercover capacity, Detective Rafael Egea was driving an unmarked vehicle 2 in the area of 21st Avenue and Glenrosa in Phoenix; Detective John Justis was a passenger. After observing defendant standing by a 5th wheel or an abandoned trailer, Detective Egea drove the vehicle near defendant and parked. Defendant approached the vehicle on the driver s side and asked what [are you] looking for? Detective Little G. Egea responded that he was looking for a Defendant removed three small bags from his pants pocket that contained an off-white crystallized substance and Detective Egea paid defendant $60 for the baggies. The officer testified that the transaction took no more than 30 seconds. ¶6 During their brief exchange, defendant had introduced himself to Detective Egea as Shorty. nickname Shorty through the police Detective Egea ran the database and reviewed numerous photographs before he came across defendant s picture. At trial, Detective Justis also identified defendant as the individual who sold them the drugs. ¶7 Donald Stenberg of the Phoenix Crime Lab testified that the substance in the three baggies was 430 milligrams of methamphetamine. ¶8 After a two-day trial, the jury found defendant guilty as charged. After a trial on defendant s alleged historical prior convictions, felony the court found defendant had two prior felony convictions and sentenced him to a mitigated term of ten and one-half years imprisonment. 3 ¶9 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶10 After obligations appeal the pertaining have ended. filing to of this defendant's Counsel need do decision, counsel s representation no more in than this inform defendant of the status 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this 4 decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's conviction and sentence are affirmed. _/s/____________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/__________________________________ PETER B. SWANN, Judge _/s/__________________________________ SAMUEL A. THUMMA, Judge 5

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