Opinion
No. 1 CA-CR 13-0771
08-28-2014
STATE OF ARIZONA, Appellee v. SEAN ALEXANDER MACDONALD Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Christopher V. Johns Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR2012-159869-001
The Honorable Jerry Bernstein, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined. NORRIS, Judge: ¶1 Sean Alexander Macdonald timely appeals from his convictions and sentences for two counts of aggravated driving while under the influence of intoxicating liquor or drugs ("DUI"), a class 4 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Macdonald's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), 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 Macdonald to file a supplemental brief in propria persona, but Macdonald did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Macdonald's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Macdonald. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 Around 2:00 a.m. on November 24, 2012, a Tempe Police Officer stopped Macdonald for driving with his headlights and taillights off. Approaching the vehicle, the officer observed Macdonald with bloodshot, watery eyes and could smell alcohol coming from his person. With Macdonald's consent, the officer conducted four field sobriety tests; Macdonald showed cues of impairment on each test. The officer arrested Macdonald and transported him to jail. In jail, Macdonald refused to consent to a blood draw test, so the officer obtained a search warrant, and a phlebotomist drew a sample of Macdonald's blood at 5:04 a.m. Subsequent analysis showed that Macdonald's Blood Alcohol Concentration ("BAC") level was 0.195. Based on that result, an Arizona Department of Public Safety criminalist preformed a retrograde analysis and determined that within two hours of driving, Macdonald's BAC would have been between .203 and .219.
¶3 Because on November 24, 2012, Macdonald was driving with a suspended license, a grand jury indicted him on two counts of aggravated DUI, Ariz. Rev. Stat. ("A.R.S.") § 28-1383(A)(1) (2012), for, first, driving while impaired to the slightest degree, see A.R.S. § 28-1831(A)(1) (2012), and second, having a BAC of 0.08 or more within two hours of driving, see A.R.S. § 28-1831(A)(2).
A Deputy Custodian of Records for the Motor Vehicle Division testified at trial that Macdonald's license was suspended in May 2012 and the Motor Vehicle Division had sent notification of the suspension to Macdonald by first class mail in July 2012.
Although the Arizona Legislature amended certain statutes cited in this decision after the date of Macdonald's offenses, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
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¶4 The jury convicted Macdonald as charged. The court placed Macdonald on supervised probation for three years to begin after Macdonald had served four months in prison, see A.R.S. § 28-1383 (D), with 47 days presentence incarceration credit. See A.R.S. § 13-901(A), (B) (Supp. 2013); A.R.S. § 13-902(B)(2) (Supp. 2013).
DISCUSSION
¶5 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Macdonald received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages.
¶6 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charges, Macdonald's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Macdonald was given an opportunity to speak at sentencing, and he did so. This sentence was within the range of acceptable sentences for his offenses. See supra ¶ 4.
CONCLUSION
¶7 We decline to order briefing and affirm Macdonald's convictions and sentences.
¶8 After the filing of this decision, defense counsel's obligations pertaining to Macdonald's representation in this appeal have ended. Defense counsel need do no more than inform Macdonald 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).
¶9 Macdonald 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 Macdonald 30 days from the date of this decision to file an in propria persona motion for reconsideration.