STATE v. BAGWELL

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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 DIVISION ONE FILED: 6/25/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. RODNEY R. BAGWELL, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 12-0583 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-160020-001 The Honorable Virginia L. Richter, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Peg Green Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Rodney Bagwell appeals from his sentence of aggravated DUI, a class 4 felony. conviction and Bagwell s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Bagwell was afforded the opportunity to file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 Lavia At 3:30 in the morning on November 27, 2011, Officer conducted a traffic stop on Bagwell. Upon contacting Bagwell, Officer Lavia noticed the strong odor of alcohol and that Bagwell was stumbling, had slurred speech and bloodshot watery eyes. Officer Lavia conducted a horizontal gaze nystagmus test, and Bagwell displayed all six cues consistent with alcohol impairment. driving home from Bagwell told Officer Lavia that he was Circle K; he also admitted he had been drinking. ¶4 Officer Lavia arrested Bagwell and submitted him to a blood test. The blood test determined that Bagwell had a blood alcohol concentration of .177 percent. 2 Furthermore, Bagwell was aware that his privilege to drive was suspended, and had not been reinstated, prior to November 27, 2011. ¶5 The aggravated Bagwell State DUI, was charged class convicted 4 Bagwell felonies. on both with After counts. a two counts three-day However, of trial, because the verdict forms duplicated the described offense for Count II in Count I, the court struck Count I and sentenced Bagwell only on Count II. The court suspended imposition of sentence and placed Bagwell on probation for three years. Bagwell timely appealed and we have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and 13-4033 (2010). 1 DISCUSSION ¶6 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. conviction and the permitted by law. The evidence presented supports the sentence imposed falls within the range As far as the record reveals, Bagwell was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. 1 We cite the current version of applicable statutes because no revisions material to this decision have occurred since the events in question. 3 ¶7 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Bagwell of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Bagwell has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶8 The conviction and sentence are affirmed. /s/ __________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ _________________________________ JON W. THOMPSON, Judge /s/ _________________________________ DONN KESSLER, Judge 4

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