Opinion
No. 1 CA-CR 15-0298
12-06-2016
STATE OF ARIZONA, Appellee, v. DAVID JOHN MILLER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Mays Law Office PLLC, Phoenix By Wendy L. Mays Counsel for Appellant David John Miller, San Luis Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-107780-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Mays Law Office PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant David John Miller, San Luis
Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Patricia A. Orozco and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from David John Miller's ("Defendant['s]") conviction and sentence for burglary in the third degree. We have reviewed the record for fundamental error and we have considered the issues identified in Defendant's supplemental brief filed in propria persona. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999).
We grant defense counsel's request that we accept the untimely opening brief. To the extent that Defendant's August 2016 "Deferential Inquiry of the Court" asks us to compel briefing by the state in response to his supplemental brief, we deny that request. We also deny Defendant's November 2016 "Motion to Stay Execution of Sentence and Set Bond."
¶2 As an initial matter, we do not address Defendant's contention that he received ineffective assistance of counsel at trial. Such claims are properly raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32, not on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
¶3 We reject Defendant's contention that the state presented insufficient evidence to support his conviction. A person commits burglary in the third degree by entering or remaining unlawfully in or on a nonresidential structure with the intent to commit any theft or felony therein. A.R.S. § 13-1506(A). The state presented evidence that early one morning in December 2012, a police officer heard an alarm sounding from a self-service car wash and saw Defendant walking away from a pay meter in one of the bays. Defendant provided the officer with his driver's license and told her that he was washing his truck, but the officer saw no signs of such activity. The officer then noticed that the pay meter had pry-mark damage and that the license plate on Defendant's vehicle was blocked by a piece of cardboard. When the officer attempted to pat Defendant down for weapons, Defendant fled to his vehicle and sped away. One of the owners of the car wash reported that several hundred dollars was missing from the damaged pay meter and that the meter required repairs. The evidence was sufficient to support the jury's conclusion that Defendant entered the car wash bay with the intent to unlawfully damage and remove money from the pay meter.
We find no support in the record for Defendant's contention that the state failed to provide him with a copy of the officer's report before trial. Further, because the report was not admitted into evidence, we reject Defendant's contention that the court erroneously denied the jury's request to view the report.
¶4 We next reject Defendant's contention that he was deprived of his Sixth Amendment right to confront his accuser. The charging document was amended at trial, without objection, to identify the owner (rather than the manager) of the car wash. Defendant had a full and fair opportunity to cross-examine the owner at trial, and he did not seek to call the manager as a witness. His claim that the manager would have testified that no money was taken from the pay meter is unsupported in the record. And we will not consider new evidence on appeal. Further, evidence that money was taken was not necessary to support his conviction — burglary in the third degree under § 13-1506(A) requires only that the defendant intended to commit a theft or other felony, not that he actually did so successfully.
¶5 The jury properly found several aggravating factors under A.R.S. § 13-701, and properly found that Defendant had two prior historical felonies under § 13-105(22). The court imposed a legal aggravated prison sentence of 12 years under §§ 13-1506(B) and -703(C) and (J), and correctly credited Defendant with 69 days of presentence incarceration under § 13-712(B).
¶6 We discern no fundamental error in Defendant's conviction or sentence. Though Defendant was not present when the jury returned its verdict or found the aggravators, the court properly found that he had voluntarily absented himself from those proceedings. Defendant was otherwise present at all critical stages, and he was represented by counsel at all critical stages. The jury was properly comprised under A.R.S. § 21-102(B), and there is no evidence of any juror misconduct or bias. Defendant was permitted to speak at sentencing, and the court stated on the record the materials it considered and the factors it found in imposing sentence.
Defendant challenges the propriety of the post-sentencing restitution award. But because he did not file a notice of appeal from that award, we lack jurisdiction to review it. See Hoffman v. Chandler, 231 Ariz. 362, 363, ¶ 7 (2013) (recognizing that non-pleading defendant may appeal from restitution order under § 13-4033(A)(3), which authorizes appeals from post-judgment orders affecting substantial rights); Ariz. R. Crim. P. 31.2(a) (requiring that appeal be taken by filing timely written notice of appeal); State v. Johnson, 78 Ariz. 211, 213 (1954) (holding that court has no jurisdiction to entertain appeal absent proper notice of appeal).
¶7 We affirm Defendant's conviction and sentence. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.