State v. Begay ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
LEO BEGAY, Appellant.
No. 1 CA-CR 18-0199
FILED 7-16-2019
Appeal from the Superior Court in Maricopa County
No. CR2016-127396-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Offices of Stephen L. Duncan, P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. BEGAY
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
C R U Z, Judge:
¶1 Leo Begay was convicted of two counts of aggravated driving
or actual physical control while under the influence of intoxicating liquor
or drugs. After searching the record on appeal, Begay’s counsel found no
arguable question of law that is not frivolous and filed his brief in
accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon,
104 Ariz. 297 (1969). Begay filed a supplemental brief. Accordingly, we
now search the record for fundamental error. After reviewing the entire
record, we affirm Begay’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 As Phoenix Police Department officers responded to a call in
the parking lot of an apartment complex, Begay drove a vehicle into the
same parking lot. Begay parked the vehicle at an angle, adjacent to where
officers were standing. Appellant staggered as he exited the vehicle from
the driver-side door. Officers testified that Appellant had watery and
bloodshot eyes, slurred his speech, continued to stagger as he walked, and
had an odor of alcohol.
¶3 Appellant agreed to field sobriety tests but declined a
breathalyzer test. After Appellant failed field sobriety tests, he was
arrested.
¶4 An officer brought Appellant to a mobile unit designed for
the investigation of crimes involving driving under the influence of alcohol
(“DUI van”), where another officer completed an implied consent form and
read Appellant his Miranda rights. There officers determined Appellant’s
driver’s license was revoked. While an officer read Appellant his Miranda
rights, Appellant interrupted him, stating, “[c]an I have an attorney here for
the blood draw?” The officer finished reading the Miranda rights and
explained to Appellant he could use a phone book and cell phone to call an
attorney, which were both accessible in the DUI van.
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STATE v. BEGAY
Decision of the Court
¶5 Appellant did not call an attorney at any time, even after the
officer encouraged him to do so. Appellant then gave his verbal and written
consent to the blood draw, but as the officer started to prepare for the blood
draw procedure, Appellant recanted his consent. The officers obtained a
search warrant, served Appellant with the same and drew Appellant’s
blood. After drawing Appellant’s blood, the officer told Appellant he had
the right to have an independent sample tested and explained that
procedure.
¶6 Before trial, Appellant requested to waive his right to counsel.
The court held a hearing and found that Appellant knowingly, intelligently
and voluntarily waived his right to counsel, accepted the waiver, and
appointed advisory counsel.
¶7 The superior court held an evidentiary hearing on
Appellant’s motion on right to counsel during the blood draw and denied
the motion. The court heard testimony from the Phoenix police officer who
administered the blood draw in the DUI van, and argument from Appellant
on his motion.
¶8 The jury found Appellant guilty of the two charges of
aggravated driving or actual physical control while under the influence of
intoxicating liquor, impaired to the slightest degree. Appellant was found
to have two prior felony convictions. The court sentenced Appellant to
concurrent prison terms of ten years each for Counts 1 and 2, with 586 days
of presentence incarceration credit as to each count.
¶9 Appellant timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
I. Issue Raised by Appellant
¶10 Appellant contends the superior court erred by denying his
motion to dismiss, arguing that the police wrongly denied his request for
counsel and “deprived him of acquiring exculpatory evidence.” We
disagree. We review a superior court’s denial of a motion to dismiss for an
abuse of discretion. State v. Martinez, 220 Ariz. 56, 58, ¶ 5 (App. 2008). The
superior court concluded that Appellant was not denied his right to counsel
because police gave him the opportunity to use a phonebook and telephone
to contact an attorney while in the DUI van from about 10:35 pm until 11:15
pm, but Appellant never chose to make a phone call. Moreover, the court
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STATE v. BEGAY
Decision of the Court
considered Appellant’s statement, “[c]an I have an attorney here for the
blood draw?” And the court determined that his request was limited to the
blood draw. In addition, Appellant was given an opportunity to contact an
attorney. Also, after police advised Begay of his rights per Miranda he was
not questioned further. Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(suspect’s statements made during an in-custody interrogation are only
admissible if police have informed the suspect of his or her constitutional
rights before questioning); see also State v. Smith, 193 Ariz. 452, 457, ¶ 18
(1999). Thus, the superior court did not abuse its discretion.
II. Other Issues
¶11 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Appellant received a fair trial. His
right to self-representation was honored and he received the assistance of
advisory counsel at all stages of the proceedings. Also, Appellant was
present at all critical stages of his trial. The court held appropriate pretrial
hearings.
¶12 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 charge, Appellant’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, Appellant was given an opportunity to speak at
sentencing, and his sentence was within the range of acceptable sentences
for his offense.
CONCLUSION
¶13 We affirm Appellant’s convictions and sentences.
¶14 After the filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Defense counsel need do no more than inform Appellant 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 (1984).
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STATE v. BEGAY
Decision of the Court
¶15 Appellant has thirty 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 Appellant thirty days from the date of
this decision to file an in propria persona motion for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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