State v. Mendivil ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHNNY L. MENDIVIL, Appellant.
No. 1 CA-CR 17-0272
FILED 2-27-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-115393-002
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
STATE v. MENDIVIL
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
J O H N S E N, Judge:
¶1 Johnny L. Mendivil timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), following his convictions of criminal trespass and possession of
drug paraphernalia, each a Class 6 felony, and possession of a dangerous
drug, a Class 4 felony. Mendivil's counsel has searched the record and
found no arguable question of law that is not frivolous. See Smith v. Robbins,
528 U.S. 259 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App.
1999). Mendivil was given the opportunity to file a supplemental brief but
did not do so. Counsel now asks this court to search the record for
fundamental error. After reviewing the entire record, we affirm Mendivil's
convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 Phoenix police responded to a call concerning a possible
trespass of a vacant downtown home.1 A barbed-wire fence surrounded
the property, but it had a hole in it near a "no trespassing" sign. Officers
entered through the hole in the fence and heard voices coming from a side
house on the property. When one of the officers looked inside, he saw
Mendivil and a woman sitting on a mattress with a pipe between them. The
officer ordered both out of the house. Once outside, Mendivil admitted he
had been smoking methamphetamine, and the officers arrested him, then
searched him and found several bags of methamphetamine. After a three-
day trial, the jury convicted Mendivil of first-degree criminal trespassing,
possession of dangerous drugs and possession of drug paraphernalia. The
jury found no aggravators present, and the State was unable to prove
Mendivil had any prior convictions. Although the superior court
nevertheless stated it "consider[ed] [Mendivil's] prior convictions" in
sentencing, it did not impose any sentence longer than the presumptive in
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Mendivil.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2
STATE v. MENDIVIL
Decision of the Court
imposing three concurrent terms of incarceration, the longest of which was
2.5 years, with 78 days' presentence credit.
¶3 Mendivil timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and -4033
(2018).2
DISCUSSION
¶4 The record reflects Mendivil received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.
¶5 The court held a suppression hearing in which it considered
Mendivil's argument that police searched him before they had probable
cause to arrest him for trespass. The court did not abuse its discretion in
concluding that Mendivil had no reasonable expectation of privacy on the
property, that the police had reasonable suspicion to investigate the
reported trespass and that the investigation yielded evidence sufficient to
give them probable cause to arrest Mendivil. See Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring). The drug evidence therefore
was obtained from a search incident to a valid arrest and admissible under
that exception to the warrant requirement. See State v. Baker, 26 Ariz. App.
255, 258 (1976).
¶6 The court did not conduct a voluntariness hearing; however,
the record did not suggest a question about the voluntariness of Mendivil's
statements to police. See State v. Smith, 114 Ariz. 415, 419 (1977); State v.
Finn, 111 Ariz. 271, 275 (1974).
¶7 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which it affirmed in open
court. The court received and considered a presentence report, addressed
its contents during the sentencing hearing and imposed legal sentences for
the crimes of which Mendivil was convicted.
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
3
STATE v. MENDIVIL
Decision of the Court
CONCLUSION
¶8 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences. See
Leon, 104 Ariz. at 300.
¶9 Defense counsel's obligations pertaining to Mendivil's
representation in this appeal have ended. Counsel need do no more than
inform Mendivil 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. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Mendivil has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Mendivil has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4