State v. Hernandez

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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. ) ) RAYMOND ALEXANDER HERNANDEZ, ) ) Appellant. ) ) 1 CA-CR 11-0248 DIVISION ONE FILED: 03/06/2012 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2004-043214-001SE The Honorable Connie Contes, 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 W I N T H R O P, Chief Judge ¶1 conviction Raymond Alexander Hernandez ( Appellant ) appeals his for driving placement on probation. on a suspended license and resulting 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. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental 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 2011), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. I. ¶3 the FACTS AND PROCEDURAL HISTORY 2 On December 10, 2004, the State of Arizona, through Maricopa County Attorney s Office, charged Appellant by information with Count I, possession or use of marijuana, and Count II, possession of drug paraphernalia, each a class six 1 We cite the current version of the applicable statutes throughout this decision because no revisions material to our analysis 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 felony. See A.R.S. §§ 13-3405(A)(1), -3415(A). Later, the State moved to dismiss Count I with prejudice, designate Count II a class one misdemeanor, and add Count III, driving on a suspended license, a class one misdemeanor. See A.R.S. § 28- 3473(A). ¶4 Appellant waived his right to a jury trial and was tried in a bench trial. following evidence: 2004, an Arizona At trial, the State presented the At approximately 5:25 a.m. on September 27, Department of Public Safety officer made a traffic stop on a vehicle traveling westbound on Highway 60. The officer initiated the traffic stop because he noticed the vehicle did not have a license plate or placard. the driver of the vehicle. Appellant was The officer asked Appellant for his driver s license, registration, Appellant responded that he because it was suspended. did and not proof have a of insurance. driver s license The officer arrested Appellant, and called to have Appellant s vehicle towed. While performing an inventory of the vehicle before it was towed, the officer found cigarette rolling papers, a marijuana cigarette, seeds, and stems in the ashtray. ¶5 guilty The court found Appellant not guilty of Count II, but of Count III as charged. Sentencing was originally scheduled for August 2, 2005; however, Appellant did not appear on that date, and sentencing was delayed until March 25, 2011. 3 On that date, the trial court suspended sentencing, placed Appellant on probation for one year, and ordered that he pay related fees and fines. II. ¶6 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 verdict, and the term of probation A.R.S. § 13-902(A)(5). is within the statutory limits. See Appellant was represented by 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. ¶7 After obligations appeal have filing pertaining ended. of this to 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. 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 reconsideration or petition for review. 4 pro per motion for III. ¶8 CONCLUSION Appellant s conviction and placement on probation are affirmed. ______________ /S/________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/________________ DIANE M. JOHNSEN, Presiding Judge _____________/S/________________ DONN KESSLER, Judge 5

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