State v. Russell ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL JAY RUSSELL, Appellant.
No. 1 CA-CR 17-0189
FILED 2-6-2018
Appeal from the Superior Court in Maricopa County
No. CR 2015-101236-001
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
STATE v. RUSSELL
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Chief Judge Samuel A. Thumma
joined.
C A M P B E L L, Judge:
¶1 Michael Jay Russell timely appeals from his conviction and
sentence for misconduct involving weapons, a class 4 felony under Arizona
Revised Statutes (“A.R.S.”) section 13-3102(A)(4). After searching the
record on appeal and finding no arguable question of law that was not
frivolous, Russell’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking
this court to search the record for reversible error. This court granted
counsel’s motion to allow Russell to file a supplemental brief in propria
persona, but Russell did not do so. After reviewing the entire record, we find
no reversible error and, therefore, affirm Russell’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 In January 2015, police officers conducted a traffic stop of a
vehicle in which Russell was a passenger. Russell exited and attempted to
run away from the vehicle, but was apprehended by several officers. One
officer then removed a loaded gun from a holster on Russell’s hip, and he
was taken into custody. In a subsequent interview with police, Russell
admitted he was a convicted felon who had not had his rights to carry a
firearm restored.
¶3 The State indicted Russell on a total of five counts for various
charges. After multiple continuances, he was tried in January 2017 on a
severed single count of misconduct involving weapons for knowingly
possessing a deadly weapon while being a prohibited possessor. At trial,
the jury heard evidence about the incident from two officers and the parties
1We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Russell. State v. Guerra,
161 Ariz. 289, 293 (1989).
2
STATE v. RUSSELL
Decision of the Court
stipulated that Russell had previously been convicted of a felony. The jury
unanimously found Russell guilty.2
¶4 At sentencing, Russell waived his right to a trial and admitted
to two historical prior convictions. The superior court sentenced Russell to
the presumptive term of 10 years, A.R.S. § 13-703(J), for the charge of
misconduct involving weapons, with 301 days of presentence incarceration
credit, to run concurrently with the 10-year sentence resulting from the plea
agreement, supra ¶ 3 n.2.
DISCUSSION
¶5 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Russell received a fair trial. He was
represented by counsel at all stages of the proceedings and was present at
all critical stages.
¶6 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members and the
court properly instructed the jury on the elements of the charge, Russell’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, Russell was given an opportunity to speak at
sentencing, and his sentence was within the range of acceptable sentences
for his offense.
CONCLUSION
¶7 We affirm Russell’s conviction and sentence. After the filing
of this decision, defense counsel’s obligations pertaining to Russell’s
representation in this appeal have ended. Defense counsel need do no more
than inform Russell 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).
¶8 Russell has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
2Russell later pled guilty to an amended count of theft of means of
transportation, a class 3 felony with one historical prior conviction, and the
remaining three charges were dismissed.
3
STATE v. RUSSELL
Decision of the Court
own motion, we also grant Russell 30 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
4