STATE v. HENDRIX

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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. ) ) LEONARD LEE HENDRIX, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 7/9/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 11-0460 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-125362-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee Charles M. Thomas Attorney for Appellant Phoenix Mesa S W A N N, Judge ¶1 Defendant Leonard Lee Hendrix appeals his conviction of one count of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, a class 4 felony ( Count 1 ); and one count of aggravated driving or actual physical control of a vehicle with a blood alcohol concentration of 0.08 or more, a class 4 felony ( Count 2 ). This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant s appellate counsel has searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was brief given the opportunity to file a supplemental in propria persona but did not do so. ¶2 find none. We have searched the record for fundamental error and Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY ¶3 On the evening of May 16, 2010, Defendant was driving his truck on Broadway Road in Phoenix. After witnessing the truck straddling a lane-dividing line, a Phoenix police officer followed the truck and initiated a traffic stop. Defendant and the officer pulled into a parking lot, and Defendant exited the vehicle. The officer asked for Defendant s driver s license, but Defendant was only able to produce an Arizona identification card. ¶4 Defendant admitted that he had consumed alcohol before driving, and the officer administered 2 standardized field sobriety tests. Defendant s performance on these tests was consistent with that of a person under the influence of alcohol. After completing the standardized field sobriety tests, Defendant was handcuffed, placed under arrest for driving under the influence, and transported to the police DUI van. ¶5 Once Defendant arrived at the DUI van, he voluntarily agreed to a blood draw and an interview. Defendant s blood sample results showed that he had a blood alcohol concentration of 0.181.1 During the interview, Defendant stated that he had been drinking beer earlier that night, including three beers within the last hour or two. Defendant also admitted that his driver s license was suspended. ¶6 Defendant was charged by information with Counts 1 and 2, and a jury found him guilty after a five-day trial. At sentencing, the court found that the state had proved two of Defendant s these The two court prior felony historical then convictions.2 prior considered felony various The court convictions mitigating in considered sentencing. circumstances, including the fact that the two historical prior felonies were 1 A forensic scientist who works in the Phoenix Police Department Crime Lab testified that there was no evidence that Defendant s blood sample had been tampered with. 2 Defendant was previously convicted on two separate occasions, one offense in June 2005 and one offense in November 2006, for failure to register as a sex offender, a class 4 felony. 3 not for violent offenses, that Defendant has community and family support, and that Defendant expressed remorse for his actions. The court found that the mitigating circumstances substantially outweigh the presumptive term and consequently sentenced Defendant to the mitigated term of six years in prison.3 Defendant was credited with 49 days of presentence incarceration. ¶7 Defendant timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). DISCUSSION ¶8 was The record reveals no fundamental error. represented proceedings. by counsel and was present at all Defendant critical The record of voir dire does not demonstrate the empanelment of any biased jurors, and the jury was properly composed of eight jurors and one alternate. See Ariz. R. Crim. P. 18.1(a); A.R.S. § 21-102(B). ¶9 The evidence that the state presented at trial was properly admissible. The state presented evidence that Defendant was pulled over for a traffic stop due to his erratic driving. Defendant s performance on standardized field sobriety tests was consistent with a person who was intoxicated. 3 A.R.S. The court also reinstated Defendant s probation on a 2000 conviction for possession or use of marijuana. 4 § 28-1381(A)(1). demonstrated Further, that Defendant s Defendant s blood blood sample contained results an alcohol concentration well above 0.08 within two hours of driving his truck. A.R.S. § 28-1381(A)(2). Defendant also admitted on multiple occasions that he had been drinking earlier in the evening. The state s evidence was sufficient to allow the jury to find Defendant guilty of Counts 1 and 2. ¶10 In its discretion, the court sentence of six years in prison. 703(C), a person shall be imposed a mitigated Pursuant to A.R.S. § 13- sentenced as a category three repetitive offender if the person . . . stands convicted of a felony and has two or more historical prior felony convictions. In this case, the court properly found that Defendant had two historical prior felony convictions -- one in 2005 and one in 2006 -- for the purposes of sentencing. The court then weighed the mitigating factors, and imposed a mitigated term. 13-703(J). The court also correctly calculated A.R.S. § Defendant s presentence incarceration credit of 49 days. CONCLUSION ¶11 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We therefore affirm. ¶12 Defense counsel s appeal have come to an end. obligations pertaining to this See State v. Shattuck, 140 Ariz. 5 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. Ariz. R. Crim. P. 31.19(a). Upon the court s own motion, he has 30 days from the date this of decision in which to file a motion for reconsideration. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ____________________________________ KENT E. CATTANI, Judge 6

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