Opinion
1 CA-CR 11-0904
04-23-2013
STATE OF ARIZONA, Appellee, v. MARTINEZ SANCHEZ, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-120091-001
The Honorable Joseph C. Welty, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Kathryn L. Petroff, Deputy Public Defender
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Martinez Sanchez has advised us that, after searching the entire record, she has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant did not submit a supplemental brief but requested counsel to raise the following issues: perjured testimony by police witnesses; prosecutorial misconduct; illegal search during Defendant's arrest; Defendant's unsuccessful oral motion to substitute counsel; Defendant's disproportionately harsh sentence; and counsel's failure to request a change of judge and to allow Defendant to select jury members.
FACTS
We view the facts "in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
¶2 Our review of the record reveals the following facts. Two police officers encountered Defendant on April 21, 2011, lying on a couch in a house while they were looking to arrest an individual with a felony warrant. The officers saw a gun protruding from his pocket and discovered that he was a prohibited possessor of a firearm. They also discovered a "glass pipe that is commonly used to smoke crystal-methamphetamine" in the pocket of his shorts. ¶3 Defendant was charged with misconduct involving weapons because he possessed a handgun while being a prohibited possessor, a class four felony, and possession of drug paraphernalia, a class six felony. After the trial, the jury found Defendant guilty of misconduct involving weapons but not guilty of possession of drug paraphernalia. Defendant admitted that he had two historical prior felony convictions and was on parole at the time he was arrested in this case. As a result, he was sentenced to prison for the presumptive ten-year term, with credit for 150 days of presentence incarceration. ¶4 We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013).
DISCUSSION
¶5 Defendant's first argument is that the police officers committed perjury during trial, and the prosecutor committed misconduct. He, however, has not provided any detail for his argument as required by Arizona Rule of Criminal Procedure 31.13(c)(1)(vi) and Arizona Rule of Civil Appellate Procedure 13(a)(6). Nevertheless, our review of the record does not reveal any evidence of perjury or prosecutorial misconduct. ¶6 Defendant next asserts that the police officers who arrested him conducted an illegal search of the house where he was found. Even if Defendant could show that he has standing to challenge the search, see Rakas v. Illinois, 439 U.S. 128, 134 (1978) ("A person who is aggrieved by an [alleged] illegal search and seizure only though the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed."), the homeowner consented to the search of the house. As a result, there was no Fourth Amendment violation. Katz v. United States, 389 U.S. 347, 358 n.22 (1967) ("A search to which an individual consents meets Fourth Amendment requirements[.]"). ¶7 Defendant next claims the court improperly denied his oral motion to substitute counsel. We review a denial of a defendant's motion to substitute counsel for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). There is no abuse of discretion when a motion is denied if the court "inquire[s] into the basis for the defendant's dissatisfactions with counsel," id. , and if it finds that the defendant only proved that a "mere animosity" exists between the defendant and counsel rather than the requisite "total breakdown in communication." State v. Peralta, 221 Ariz. 359, 361, ¶ 5, 212 P.3d 51, 53 (App. 2009). ¶8 Here, the court inquired into Defendant's basis for his dissatisfaction. Defendant told the court that counsel did not answer his questions and help him. Counsel stated, however, that he had thoroughly discussed the case with his client and used layman's terms. The court then denied the request, and we find no abuse of discretion because Defendant did not demonstrate "a total breakdown in communication." Id. ¶9 Finally, Defendant asserts that his sentence is unusually harsh. Defendant appears to be making a constitutional challenge to his sentence. See, e.g., State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995) (stating that "Defendant . . . argues that his . . . sentence is disproportionate to his crime and therefore constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution"). When reviewing whether a sentence violates the Eighth Amendment's prohibition of cruel and unusual punishments, we have to initially determine whether the sentence was grossly disproportionate "by comparing the gravity of the offense [and] the harshness of the penalty." State v. Berger, 212 Ariz. 473, 476, ¶ 12, 134 P.3d 378, 381 (2006) (internal quotation marks omitted). In making the determination, we "accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences." Id. at ¶ 13, 134 P.3d at 381. ¶10 Here, Defendant admitted that he had been convicted of two historical prior felonies and was on parole. He knew the felonies would be used to enhance the sentence pursuant to A.R.S. § 13-703(C) (West 2013). They were, and he was sentenced to the presumptive term of ten years' imprisonment. A.R.S. § 13-703(J). Because he received the presumptive term based on his admitted criminal history, his sentence is not grossly disproportionate. ¶11 We have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. ¶12 After this decision is filed, counsel's obligation to represent Defendant in this appeal has ended. Counsel must only inform Defendant of the status of the appeal and Defendant's future options, unless counsel identifies 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). Defendant may, if desired, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure.
We do not address Defendant's claims about his lawyer. The claims essentially argue that his lawyer was ineffective and can only be raised by a Rule 32 petition and proceedings; not by direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002); see also Ariz. R. Crim. P. 32.1.
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CONCLUSION
¶13 Accordingly, we affirm Defendant's conviction and sentence.
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MAURICE PORTLEY, Presiding Judge
CONCURRING: _____________
PATRICIA A. OROZCO, Judge
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RANDALL M. HOWE, Judge