State v. Harvey ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSHUA MILES HARVEY, Appellant.
No. 1 CA-CR 18-0208
FILED 6-11-2019
Appeal from the Superior Court in Maricopa County
No. CR 2015-001971-001
The Honorable Annielaurie Van Wie, Judge Pro Tem
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. HARVEY
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Defendant Joshua Harvey was given the opportunity
to file a supplemental brief but did not do so. Our obligation is to review
the entire record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999), viewing the evidence in the light most favorable to sustaining
the convictions and resolving all reasonable inferences against Harvey,
State v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 Late one evening, Officer Rowland pursued a car that was
being operated with its lights off. When Rowland turned his lights on, the
car initially slowed down and moved toward the right shoulder of the road
but then veered back into the lane and continued down the off-ramp.
Proceeding onward, the car turned several times and passed several
suitable locations to pull over before it finally stopped, prompting Rowland
to call for backup. Rowland approached the vehicle and observed the
driver—later identified as Harvey—holding his cell phone up “as if to
record” Rowland. Harvey refused Rowland’s repeated requests for his
license and registration, asserting he “was not in commerce.” When
Harvey rolled down his window, Rowland detected the odor of marijuana.
Other officers soon arrived on scene and tried to remove Harvey, who
continued to make strange statements, from the car. He asserted he would
“defend [his] life by any means necessary,” and referred to the officers as
“squires of the queen.” When the officers eventually arrested Harvey, they
observed a slight bulge in his right sock. Inside, officers found a baggie
containing what they believed to be marijuana.
¶3 When Harvey did not consent to voluntarily provide a blood
sample, officers took him to a holding facility where they obtained a search
warrant authorizing a blood draw. Harvey’s blood tested positive for THC
and its metabolite, hydroxy-THC. Forensic analysis indicated the substance
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STATE v. HARVEY
Decision of the Court
found in Harvey’s sock was marijuana. Harvey did not have a valid
driver’s license at the time of this incident.
¶4 The State charged Harvey with aggravated driving or actual
physical control of a vehicle while under the influence of intoxicating liquor
or drugs (count one); aggravated driving or actual physical control of a
vehicle with the presence of a drug or its metabolite in his body (count two);
and possession of marijuana (count three). A jury found Harvey guilty as
charged. The jury also found that Harvey committed these offenses while
on felony probation. Following a trial on Harvey’s historical priors, the
superior court found that the State had proved he was a category 3 offender.
The court imposed presumptive sentences of 10 years for counts one and
two, and 3.75 years for count three, with presentence incarceration credit of
107 days. Harvey timely appealed.
¶5 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Harvey either waived
his right to be present, was present and representing himself with the
assistance of advisory counsel, or was present and represented by counsel
at all critical stages of the proceedings against him.1 The evidence
presented supports the convictions and the sentences imposed fall within
the range permitted by law. As far as the record reveals, these proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure and Harvey’s constitutional and statutory rights. Therefore, we
affirm Harvey’s convictions and sentences.
¶6 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Harvey of the outcome of this appeal and his
future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Harvey has
1 The superior court accepted Harvey’s waiver of counsel only after a
thorough colloquy. Prompted by his subsequent disruptive conduct,
however, the court attempted to again discuss the matter with Harvey
before finding he had withdrawn his waiver; prior counsel was therefore
reappointed. See Ariz. R. Crim. P. 6.1(e) (“A defendant may withdraw a
waiver of the right to counsel at any time.”). Before trial, and after
reviewing the matter with Harvey, the court found that he knowingly,
intelligently, and voluntarily waived his right to be present. See Ariz. R.
Crim. P. 9.1 (“[A] defendant’s voluntary absence waives the right to be
present at any proceeding.”).
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STATE v. HARVEY
Decision of the Court
30 days from the date of this decision to proceed, if he wishes, with a pro
per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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