STATE v. BETRO

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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. ANDREW PETER BETRO, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 12-0037 DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2011-110105-001 DT The Honorable Dawn M. Bergin, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Bruce Peterson, Office of the Legal Advocate By Colin F. Stearns, Deputy Legal Advocate Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Andrew Peter Betro s conviction of burglary in the second degree, a Class 3 felony. Ariz. Rev. Stat. ( A.R.S. ) § 13-1507 (West 2012). 1 Betro s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Betro was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Betro s conviction and suspended sentence. FACTS AND PROCEDURAL HISTORY ¶2 Betro agreed to help a friend, Paul Erickson, take two safes from the victim s home and sell their contents. 2 Betro and Erickson were friends with the victim s sons and in the past had been in the victim s home. At the scene, Erickson directed Betro to keep [his] eyes open and look for a white diesel truck owned by the victim; Betro complied and kept watch while Erickson removed the safes. They then met at Betro s home and opened the safes with hammers. They found several items inside, 1 Absent material revisions after the date offense, we cite a statute s current version. 2 of an alleged We review the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Betro. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998) (quotation omitted). 2 including a handgun and pieces of jewelry, which Betro took to hide at his parents house so his wife did not discover them. When police involvement eventually in the contacted burglary. Betro, A he consensual admitted search his of his parents home produced the handgun and jewelry the victim said were inside the safes. ¶3 Betro was charged with one count of burglary in the second degree. The State alleged he was criminally accountable as an accomplice by aiding, agreeing or attempting to aid, or providing means burglary. or During opportunity trial, a for Erickson redacted to version commit of the Betro s videotaped confession was played for the jury and admitted in evidence. Additionally, Betro testified that he agreed to get the safes and sell their contents, but that Erickson made him believe the items belonged to the victim s sons, who had given Erickson permission however, that he to knew sell the them. safes Betro themselves also testified, belonged to the victim. ¶4 The jury found Betro guilty as charged and found the existence suspended of three imposition aggravating of sentence, circumstances. placed Betro The on court supervised probation for three years and imposed a deferred jail term of six months. Betro also stipulated restitution. 3 to paying $400 in ¶5 Betro timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-120.21(A)(1) (West 2012), 13-4031 (West 2012) and -4033(A)(1) (West 2012). DISCUSSION ¶6 was The record reflects Betro received a fair trial. represented stages of the appropriate police. counsel the was present however, at him. against hearings. hearing; about and proceedings pretrial voluntariness question by The It the voluntariness did record of all not did Betro s He critical court held conduct not a raise statements a to See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶7 The State presented both direct and evidence sufficient to allow the jury to convict. circumstantial The jury was properly comprised of eight members with one alternate. The court the properly instructed the jury on the elements of charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed by polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal term of probation for 4 the crime of which Betro was convicted. See A.R.S. §§ 13-702(D) (West 2012), -902(A)(2) (West 2012). CONCLUSION ¶8 We have reviewed the entire record for reversible error and find none. ¶9 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to Betro s representation in this appeal have ended. Defense counsel need do no more than inform Betro of the outcome of this appeal and his future options, unless, upon review, counsel finds 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, 156-57 (1984). On the court s own motion, Betro has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Betro has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. _/s/______________________________ DIANE M. JOHNSEN, Judge CONCURRING: _/s/__________________________________ PATRICIA K. NORRIS, Presiding Judge _/s/__________________________________ JON W. THOMPSON, Judge 5

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