STATE OF ARIZONA v. KENNETH EUGENE WOJTSECK

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY 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. NOV 19 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee, v. KENNETH EUGENE WOJTSECK, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2008-0383 DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20080595 Honorable Hector E. Campoy, Judge AFFIRMED John William Lovell Tucson Attorney for Appellant B R A M M E R, Judge. ¶1 In September 2008, a twelve-person jury found appellant Kenneth Wojtseck guilty of three counts of aggravated assault with a deadly weapon, all dangerous-nature, class three felonies.1 It found him not guilty of a similar assault on a fourth victim. The trial court sentenced Wojtseck to concurrent, mitigated, five-year terms of imprisonment. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. ¶2 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), setting forth a detailed factual and procedural history of the case with citations to the record, [so that] this court can satisfy itself that counsel has in fact thoroughly reviewed the record. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d at 97. Counsel states, and his brief reflects, that he has thoroughly reviewed the record in this case. He further states he has been unable to find any arguable legal issues to raise on appeal, and he asks us to search the record for fundamental error. Wojtseck has not filed a supplemental brief. Pursuant to our obligation under Anders, we have reviewed the trial court ¶3 record in its entirety and have searched the record for error. We have found substantial evidence to support the jury s verdicts and have found no fundamental error. Wojtseck s convictions and sentences are, therefore, affirmed. _______________________________________ J. WILLIAM BRAMMER, JR., Judge CONCURRING: _______________________________________ GARYE L. VÃ SQUEZ, Judge _______________________________________ PHILIP G. ESPINOSA, Judge 1 Although the sentencing minute entry refers to the offenses as nondangerous and nonrepetitive, the verdict forms reflect the jury s findings of dangerousness, and the five-year sentences imposed correspond to the mitigated term statutorily prescribed in former A.R.S. § 13-604(I) for a first-time, class three, dangerous-nature felony when Wojtseck committed the offenses in December 2007. 2007 Ariz. Sess. Laws, ch. 287, § 1. 2

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