STATE v. ORTEGA

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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. ) ) JAMEL COURTNEY ORTEGA, ) ) Appellant. ) ) DIVISION ONE FILED: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 12-0187 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-136728-001 The Honorable Brian D. Kaiser, 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 Charles R. Krull, Deputy Public Defender Attorneys for Appellant Phoenix W I N T H R O P, Chief Judge ¶1 Jamel Courtney Ortega ( Appellant ) appeals his convictions and placement on probation for possession or use of marijuana and possession of drug paraphernalia. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. 96 See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, (App. record 1999) for (stating Appellant reversible the that this error). opportunity to court Although file a reviews this the court supplemental entire granted brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY 2 I. ¶3 On information August with 5, Count 2011, 1, the State possession or charged Appellant use marijuana, of by a class six felony, in violation of A.R.S. § 13-3405, and Count 2, 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 possession of drug paraphernalia, violation of A.R.S. § 13-3415. a class six felony, in Before trial, the State moved to re-designate the alleged offenses as class one misdemeanors and proceed to a bench trial. ¶4 The trial court granted the motion. At trial, the State presented the following evidence: On July 15, 2011, a Phoenix police officer in an unmarked patrol car observed Appellant and another person enter a vehicle in the parking lot of a bar. While in the vehicle, Appellant rolled and the lit marijuana. a cigarette officer believed might contain The officer followed Appellant s vehicle as it left and smelled a burnt marijuana smell coming into his vehicle. The officer also noticed Appellant was exceeding the speed limit by ten miles an hour and radioed for a marked patrol car to stop Appellant s vehicle. After the vehicle was stopped, the officer searched the car and found a flip-top box that contained several items, including, a green, leafy substance later determined to be marijuana, empty clear baggies, cigarette rolling papers, and a scale. ¶5 Appellant testified at trial that he smokes rolled cigarettes because they cost less, he did not smoke marijuana on July 15, 2011 and he later learned that the marijuana found in his vehicle belonged to a friend who had used the vehicle to move the night before the incident. 3 ¶6 The court found counts. Appellant agreed after the verdicts. Appellant to guilty proceed of both directly to charged sentencing The trial court suspended sentencing and placed Appellant on concurrent terms of unsupervised probation for twelve months each, with a requirement that he attend an eight-hour drug education course. Appellant filed a timely notice of appeal. II. ¶7 We have reviewed error and find none. ANALYSIS the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentencing requirements. proceedings Appellant was followed represented by the statutory counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶8 After obligations appeal have filing pertaining ended. of to this decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. 4 for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. III. ¶9 CONCLUSION Appellant s convictions and placement on probation are affirmed. ______________/S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/__________________ JOHN C. GEMMILL, Judge _____________/S/___________________ ANDREW W. GOULD, Judge 5

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