STATE v. SALERNO

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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 IN THE MATTER OF: ) ) SEARCH WARRANT NO: SW2009-008404 ) AT 4554 W. PARADISE DR., ) GLENDALE, AZ 85304 ) __________________________________) ) STATE OF ARIZONA, ) ) Plaintiff/Appellee, ) ) v. ) ) FOX JOSEPH SALERNO, ) ) Defendant/Appellant. ) ) DIVISION ONE FILED: 07/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0434 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. SW2009-008404 The Honorable Douglas L. Rayes, Judge AFFIRMED Thomas C. Horne, Attorney General By Brian P. Luse, Assistant Attorney General And Karyn E. Klausner, Chief Counsel, Arizona Department of Corrections Co-Counsel for Plaintiff/Appellee Fox Joseph Salerno Pro Se Defendant/Appellant Phoenix Phoenix Florence S W A N N, Judge ¶1 Fox Joseph Salerno ( Appellant ) appeals the superior court s order property. denying his motion for the return of seized For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Appellant is an inmate in the custody of the Arizona Department of Corrections ( ADOC ). ADOC investigator mother s home in executed Glendale. a On December 22, 2009, an search The warrant investigator at Appellant s seized various items, including checks, computer equipment, and letters from Salerno, that the investigator had probable cause to believe were used to commit the offenses of threatening or intimidating, under A.R.S. § 13-1202; solicitation, under § 13-1002; and participating or assisting in a criminal syndicate, under § 132308. Those offenses were purportedly committed between July 16, 2009, and December 18, 2009, and continue[d] to occur as of December 22, 2009. ¶3 On April 26, 2010, Appellant filed in superior court a motion to declare the search warrant illegal and, on that basis, he requested the seized property be returned. In accordance with A.R.S. § 13-3922, the court held an evidentiary hearing on the motion. On October 19, 2010, the court denied the motion, finding that Appellant lacked standing to challenge the search of his mother s home and, alternatively, that probable cause 2 existed to support the warrant. Appellant did not appeal the court s order; instead, on April 27, 2011, he filed a motion for the return of the seized property. ¶4 Referring to the offense of threatening or intimidating as the only charge ADOC attempted to get . . . filed, Appellant asserted in his motion that that crime is a misdemeanor and therefore subject to the one-year statute of limitations in A.R.S. § 13-107(B)(2). Appellant argued that the seized property should be returned because the state had not charged him with the offense of threatening or intimidating within the statutory time period and the basis to retain [the] seized property no longer exists. On May 9, 2011, the court held its a hearing and, referring to previous Appellant lacked standing, denied his motion. ruling that The court also noted that the motion is not properly brought in this criminal matter but Mr. Salerno may have a civil action. Appellant timely appeals, and we have jurisdiction pursuant to A.R.S. § 12-2101. State v. Salerno, 216 Ariz. 22, 24-25, ¶¶ 8-14, 162 P.3d 661, 663-664 (App. 2007). 3 DISCUSSION1 ¶5 In Salerno, we held that the state could not retain Appellant s property simply by asserting that the statute of limitations has not expired. 2 Id. at 25, ¶ 17, 162 P.3d at 664. We noted that the state must articulate some valid legal basis for allowing it to withhold [the seized] property. 19. Id. at ¶ One such valid basis is a pending investigation. Id. at ¶ 13. ¶6 Appellant asserts that the state informed the trial court that original.) the investigation was The record this belies complete. (Emphasis assertion. The in court s minute entry ruling reflects that, at the time of the hearing on Appellant s motion for return of property, Pinal County was investigating felony charges stemming from the seized property. Appellant has not provided us with transcripts of the hearing; thus, on this record, we must presume that the state s investigation regarding felony charges against him was ongoing. See ARCAP 11(b) (appellant is responsible for ordering all 1 The state argues that, because Appellant did not appeal from the superior court s order finding he lacked standing to challenge the search warrant, the law of the case doctrine required the court to deny Appellant s motion for return of seized property. Without deciding this issue, we exercise our discretion to address the merits of this appeal to the extent we can on this record. 2 The seizure of Appellant s property that was the basis of the opinion was not the same incident as the one in this decision. 4 relevant transcripts); see also Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, include necessary court s findings 767 investigation, we (App. items, and we 1995) ( When assume they conclusions. ). reject Appellant s a party would Based argument fails support on the that to the pending the trial court reversibly erred under Salerno. ¶7 Further, Appellant s argument that the statute of limitations had expired on the only charges sought against him is both factually and legally incorrect. As noted, the record reflects that the state was investigating felony charges. And Salerno s implication that threatening or intimidating is always a misdemeanor offense is incorrect; it can also be a class three or class six felony. the statute of See A.R.S. § 13-1202(B), (C). limitations had not necessarily potential charge of threatening or intimidating. As such, run on a See A.R.S. § 13-107(B)(1) (prosecution for a class two through a class six felony must be commenced within seven years). ¶8 Finally, Appellant argues the seized property has no relation to the charges under review. Appellant does not direct us to any portion of the record where he raised this issue with the superior court. See Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109-10, ¶ 17, 158 P.3d 232, 23839 (App. 2007) (party waives argument raised for first time on appeal because the superior court had no opportunity to address 5 the issue on its merits). And even assuming that this issue had been preserved, we could not properly review it without the transcripts from the May 9, 2011 hearing. CONCLUSION ¶9 For the foregoing reasons, we affirm the superior court s order denying Appellant s motion for return of seized property. See Espil Sheep Co. v. Black Bill & Doney Parks Water Users Ass n, 16 Ariz. App. 201, 203-04, 492 P.2d 450, 452-53 (1972) (we may affirm the trial court if it is correct for any reason). /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DONN KESSLER, Judge 6

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