STATE v. LEWIS

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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. AUSTEN R. LEWIS, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 12-0553 DIVISION ONE FILED: 06/27/2013 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-123490-001 The Honorable Robert L. Gottsfield, Retired Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel, Criminal Appeals Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Austen R. Lewis appeals from his conviction probation for resisting arrest, a class one misdemeanor. Rev. Stat. ( A.R.S. ) § 13-2508(A)(1) (2010). and Ariz. After searching the record on appeal and finding no arguable question of law that was not frivolous, Lewis counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Lewis to file a supplemental brief in propria persona, but Lewis did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Lewis conviction and probation. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 On May 5, 2010, at approximately 9:00 p.m., a police detective and an officer, while driving in a patrol car, saw Lewis car drift out of its lane and swerve into a turning lane, with the left side of the car . . . over the line [designated for the turning lane]. for his I.D., he became After police stopped Lewis and asked verbal[ly] aggressi[ve], insisted police had no reason to pull him over, and repeatedly called the police profane names. Because of Lewis verbal aggression, the detective asked him to sit on the curb. As Lewis walked towards the curb, he flicked his driver s license at the detective and it hit him in the chin, prompting police to arrest Lewis. Although the police 1 told Lewis he was under We view the facts in the light most favorable to sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 arrest, Lewis used his hands and arms to avoid being handcuffed. The detective and Lewis fell to the ground, and Lewis continued to resist. After backup officers arrived and tasered him, police finally handcuffed Lewis and took him into custody. ¶3 The State charged Lewis with aggravated assault and resisting arrest, misdemeanors. and designated both counts as class one Lewis waived his right to a jury trial and, at the ensuing bench trial, he testified he did not flick, but merely dropped his driver s license in front of the detective. He also testified that after he dropped his driver s license, the detective began to punch him and the detective and officer pulled him to the ground. ¶4 The superior court found Lewis not guilty of aggravated assault, but guilty of resisting arrest. The court suspended Lewis imposition unsupervised probation of sentence for one and year. placed A.R.S. § record for on 13-902(A)(5) (Supp. 2012). 2 DISCUSSION ¶5 We have reviewed error and find none. 881. the entire reversible See Leon, 104 Ariz. at 300, 451 P.2d at All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. 2 So far as the record Although the Arizona Legislature amended this statute after the date of Lewis offense, the revisions are immaterial. Thus, we cite to the current version of this statute. 3 reveals, Lewis was represented by counsel at all stages of the proceedings and was present at all critical stages. sufficient evidence for the superior court to There was find Lewis committed the offense, and the probation imposed was within the statutory limits. CONCLUSION ¶6 We decline to order briefing and affirm Lewis conviction and probation. ¶7 After the filing of this decision, defense counsel s obligations pertaining to Lewis representation in this appeal have ended. Defense counsel need do no more than inform Lewis of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 4 ¶8 Lewis has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court s own motion, we also grant Lewis 30 days from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MICHAEL J. BROWN, Judge /s/ JOHN C. GEMMILL, Judge 5

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