State v. Alcantar ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JUANITO C. ALCANTAR, III, Appellant.
No. 1 CA-CR 13-0038
FILED 05-29-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-119290-001
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
STATE v. ALCANTAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Juanito C. Alcantar III (“Defendant”) appeals from his
conviction and sentence for one count of burglary in the third degree, a
class four felony. Defendant’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297,
451 P.2d 878 (1969), advising this Court that after a search of the entire
appellate record, no arguable ground exists for reversal. Defendant was
granted leave to file a supplemental brief in propria persona, and did not
do so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96
(App. 1999). 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), 13-4031 and 13-4033(A)(1) (West 2014).1 Finding no
reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND2
¶3 In the middle of the day on March 21, 2012, Detective Dever
was conducting surveillance near 300 South Beck in Tempe. She was
parked in an unmarked car at the 1200 block of West Third Street when
she saw a minivan pull up to the address she was investigating. As she
watched, the driver knocked on the door of the target address, no one
answered, and he returned to the van. Dever then saw two Hispanic
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
2 We view the evidence in the light most favorable to sustaining the
conviction and resulting sentence. See State v. Guerra, 161 Ariz. 289, 293,
778 P.2d 1185, 1189 (1989).
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STATE v. ALCANTAR
Decision of the Court
males, Defendant and an accomplice, dressed in hooded sweatshirts exit
the van. Defendant appeared to put a screwdriver up his right sleeve.
Dever observed as the two males walked away from the van and out of
view; a few minutes later they returned for a short time and then left
again.
¶4 Suspicious, Dever radioed the rest of her surveillance team
with a description of the two males and their activities. One of her team
members, Detective Del Rio, was driving on Third Street and saw the
individuals Dever described; his interest was also sparked by the fact that
as soon as he drove by the individuals, they put the hoods of their
sweatshirts up. Del Rio parked his car to watch the target address.
After he parked, Del Rio heard a car alarm go off to the east of his
location, and then he saw the same two individuals dressed in hooded
sweatshirts run past his location heading down an alley toward Dever’s
location. Dever was still located outside the target address when she saw
the individuals run back to the van and the driver quickly drive away.
The detectives followed the van, took down its license plate number, but
eventually lost it in traffic.
¶5 Dever went back to the parking lot she had seen the
individuals run from; she found a blue Honda with a broken passenger
window and a missing stereo. She was also approached by a woman
who lived in the complex who had heard the car alarm and had seen
Defendant hurrying away from the parking lot as he put what appeared
to be a stereo in his sweatshirt.
¶6 Later, Dever contacted the van’s registered owner and
spoke to the driver of the van, the owner’s son. Through the driver, she
eventually came into contact with Defendant. During his interrogation,
Defendant initially denied any involvement; however, he eventually
admitted he was with the driver of the van on March 21, 2012 and there
was a third person with them but claimed they were just driving around.
¶7 The State arrested Defendant and charged him with one
count of third degree burglary. He was arraigned on May 16, 2012; in
accordance with Arizona Rule of Criminal Procedure 8.2, Defendant’s last
day for trial was October 13, 2012. On September 19, 2012, one day before
the trial date, the State moved to continue the trial because its case agent
had a death in the family on September 18 and would be unavailable for
trial. The court granted the motion over Defendant’s objection. The court
found the case agent would be unavailable, the Defendant would not be
unfairly prejudiced by the delay, and the interests of justice required a
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STATE v. ALCANTAR
Decision of the Court
continuance. The court moved the trial to October 4, 2012 and excluded 7
days setting October 22, 2012 as the new last day for trial. The trial was
continued another time on the State’s motion and over Defendant’s
objection; however, Defendant was tried on October 11-16, 2012, before
the modified last day.
¶8 Defendant went to trial and was convicted. At sentencing,
Defendant stipulated that he had two prior felony convictions. The court
found these two prior convictions and the fact that Defendant had an
accomplice as aggravating circumstances. However, it concluded the
aggravators were outweighed by mitigating factors and sentenced
Defendant to a mitigated term of 7 years. The court also ordered
Defendant to pay $576.98 in restitution.
DISCUSSION
¶9 At sentencing, the court did not conduct a Rule 17.6
colloquy before accepting defense counsel’s stipulation to his two prior
felonies. This is fundamental error. State v. Gonzales, 233 Ariz. 455, 458,
¶ 9, 314 P.3d 582, 585 (App. 2013). However, the omission “only requires
resentencing if the defendant was prejudiced.” Id.; State v. Morales, 215
Ariz. 59, 61, ¶ 10, 157 P.3d 479, 481 (2007). If there is sufficient evidence
of the prior convictions in the record there is no need to remand for a
determination of prejudice. Gonzales, 233 Ariz. at 458, ¶ 9, 314 P.3d at 585.
Defendant did not object to the presentence report which contains the
two prior convictions to which he stipulated; this “conclusively precludes
prejudice and a remand under Morales.” Id. at ¶¶ 11, 12 (“The criminal
history contained in the presentence report combined with the proposed
stipulation to the same two felonies serves as sufficient evidence under
Morales to show that [Defendant] was not prejudiced by the failure to
conduct a colloquy.”).
¶10 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error, and found none. Clark, 196
Ariz. at 541, ¶ 49, 2 P.3d at 100. Counsel’s obligations pertaining to
Defendant’s representation in this appeal have ended. Counsel need do
nothing more than inform Defendant of the status of the appeal and his
future options, unless counsel’s review reveals 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
shall have thirty days from the date of this decision to proceed, if he so
desires, with an in propria persona motion for reconsideration or petition
for review.
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STATE v. ALCANTAR
Decision of the Court
CONCLUSION
¶11 For the above reasons, Defendant’s conviction and sentence
is affirmed.
:gsh
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