STATE v. BARNES

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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. ) ) THOMAS ALAN BARNES, ) ) Appellant. ) ) __________________________________) 1 CA-CR 12-0096 DIVISION ONE FILED: 5/9/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-106884-001 The Honorable Phemonia L. Miller, Judge Affirmed Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix G O U L D, Judge ¶1 appeals Defendant-Appellant from his convictions Thomas and Alan resulting Barnes ( Barnes ) sentences of two counts of Aggravated Driving or Actual Physical Control while under the Influence of Intoxicating Liquor or Drugs, class 4 felonies. ¶2 Counsel for Barnes filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Barnes was granted leave to file a supplemental brief in propria persona on or before February 19, 2013 and did not do so. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 120.21(A)(1), 13-4031 and 13-4033(A)(1) (West 2013).1 12- Finding no reversible error, we affirm. Facts and Procedural History2 ¶4 At approximately 2:27 in the morning on September 16, 2010, two police officers spotted Barnes s truck swerving across lanes of traffic on the freeway. When the officers pulled over 1 Unless otherwise specified, we cite to the current version of the applicable statutes because no revisions material to this decision have occurred. 2 We view the evidence in the light most favorable to sustaining the convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 Barnes to conduct a traffic stop, they detected an odor of alcohol on Barnes and noted he had bloodshot, watery eyes. Barnes admitted to officers he had consumed six or seven beers. The officers transported Barnes to a DUI van where his blood was drawn, showing a blood alcohol concentration of .249. Barnes also indicated he was impaired by demonstrating all six cues of the horizontal gaze nystagmus (HGN) test. ¶5 The State charged Barnes with Count 1: Aggravated Driving or Actual Physical Control while under the Influence of Intoxicating Liquor or Drugs (Impaired) and Count 2: Aggravated Driving or Actual Physical Control while under the Influence of Intoxicating Liquor or Drugs (BAC greater than .08). ¶6 At trial, a custodian of records for the Arizona Motor Vehicle Division testified that, on the day he was pulled over, Barnes s license was suspended. The custodian of record also testified that Barnes had been notified of this suspension by a letter sent on October 20, 2009. ¶7 The jury convicted Barnes as charged on Counts 1 and 2. The court sentenced him to three years of probation and four months of incarceration as to each count, to be served concurrently. Discussion ¶8 found We have read and considered the entire record and have no meritorious grounds 3 for reversal of Barnes s convictions or for modification of the sentences Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. reflects Barnes received a fair trial. critical stages of the proceedings imposed. The record He was present at all and was represented by counsel. ¶9 The court held appropriate pretrial hearings. Although the court did not conduct a voluntariness hearing, the record does not suggest a question about the voluntariness of Barnes s statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977) (a defendant must object to the admission of statements before he can claim error and the trial court is not required to sua sponte determine the voluntary nature of evidence). ¶10 All proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and substantial evidence supported the finding of guilt. counsel were given an imposed a legal sentence. At sentencing, Barnes and his opportunity to speak, and the court Accordingly, we affirm. Conclusion ¶11 Counsel s representation in obligations this appeal have pertaining ended. to Counsel Barnes s need do nothing more than inform Barnes of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the 4 Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Barnes shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.3 /S/___________________________ ANDREW W. GOULD, Judge CONCURRING: /S/_______________________________ PATRICIA K. NORRIS, Presiding Judge /S/________________________________ RANDALL M. HOWE, Judge 3 Pursuant to Arizona Rule 31.18(b), Defendant or his counsel has motion for reconsideration. On the extend the time to file such a motion date of this decision. 5 of Criminal Procedure fifteen days to file a court s own motion, we to thirty days from the

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