State v. Martinez ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
EVERADO MARTINEZ, Appellant.
No. 1 CA-CR 15-0300
FILED 4-28-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-461333-001
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Peg Green
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.
STATE v. MARTINEZ
Decision of the Court
G E M M I L L, Judge:
¶1 Everardo Martinez appeals from his conviction and sentence
for one count of resisting arrest. Martinez’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), stating that she has searched the record and found no
arguable question of law and requesting that this court examine the record
for reversible error. Martinez was afforded the opportunity to file a pro se
supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537,
¶ 30 (App. 1999). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001).
¶3 At approximately 3:00 p.m. on December 23, 2013, Martinez
was working with his father when the two stopped to get a part from a
trailer shop. While his father was in the shop, Martinez walked over to
what he thought was a seafood restaurant in order to buy lunch. After
looking inside, he realized that the place was not open for business.
¶4 At this same time, Officer P.C. was investigating a recent hit-
and-run involving a black pickup truck. Officer P.C. was examining a black
pickup truck with “extensive front end damage” under suspicion that it had
been involved in the hit-and-run. The pickup truck happened to be located
in the same parking lot as the restaurant that Martinez had thought was
open for lunch. Upon arriving at the parking lot and seeing Martinez about
ten feet away from the vehicle, Officer P.C. exited his patrol car and gave
verbal commands for Martinez to stop.
¶5 Officer P.C. testified that he gave Martinez several verbal
commands in both English and Spanish, but Martinez would not stop.
Martinez testified that he did not know who Officer P.C. was talking to, but
after hearing a few verbal commands, Martinez turned around. Once
Martinez turned around, Officer P.C. directed him to stand against the wall
of the restaurant. Martinez responded by cursing at Officer P.C. and calling
him “racist.” At the time, Martinez believed Officer P.C. was engaging in
racial profiling, because Martinez is Latino and was dressed in work
clothes.
2
STATE v. MARTINEZ
Decision of the Court
¶6 Officer P.C. grabbed Martinez’s wrist and pushed him up
against the wall of the building with one arm behind his back. Up to this
point, Officer P.C. had not explained to Martinez what was going on or that
he was being arrested. Officer P.C. testified that Martinez was pushing off
the wall, which made it impossible to handcuff him. Martinez testified that
he did not push off the wall or engage the officer physically in any way.
¶7 While Martinez was against the wall, Officer P.C. explained
to him that he was accused of being in a hit-and-run. Martinez tried
explaining that he was not involved in the accident. Officer P.C. then told
Martinez to turn around and put his hands on his head, and Martinez
complied. Backup officers arrived shortly thereafter.
¶8 In order to arrest Martinez, whose hands were still on his
head, an officer started to pull Martinez’s hand down and Martinez’s body
went stiff. Martinez testified this was a nervous reaction to being arrested
for the first time and acknowledged this made it harder for the officers to
get his hands down and into handcuffs. Eventually, Officer J.B. kicked
Martinez behind the knee in order to get him off balance so they could
handcuff him.
¶9 The officers took Martinez to the black pickup truck in the
parking lot and asked him if it was his. Martinez replied that it was not.
Martinez’s father, who drove into the parking lot during the altercation,
also told the officers that the truck did not belong to Martinez. Martinez
was later charged with resisting arrest, a class six felony.1
¶10 After voir dire and jury selection, but before the jury heard
arguments from the parties, Martinez agreed to waive his right to a jury
and proceeded with a bench trial. In exchange, the State agreed to designate
the alleged offense as a misdemeanor. The trial court found Martinez guilty
of one count of resisting arrest, a class one misdemeanor. The court
suspended imposition of sentence and placed Martinez on one year of
unsupervised probation, eligible for early termination after half the term
was completed. He was also required to complete 24 hours of community
restitution and pay reduced fees.
1 Martinez was also charged with leaving the scene of an accident, a class
two misdemeanor. The State moved to dismiss this charge before trial
began, and the court granted the State’s motion.
3
STATE v. MARTINEZ
Decision of the Court
¶11 Martinez appeals his conviction and sentence. This court has
jurisdiction under 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.
DISCUSSION
¶12 Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, we find none. The
evidence presented supports the conviction and the sentence imposed falls
within the range permitted by law. As far as the record reveals, Martinez
was represented by counsel at all stages of the proceedings, which were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.
¶13 After the filing of this decision, defense counsel’s obligations
pertaining to this appeal have ended. Defense counsel need do no more
than inform Martinez 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). Martinez has 30 days from the date of this
decision to proceed, if he wishes, with a pro se motion for reconsideration
or a pro se petition for review.
CONCLUSION
¶14 Martinez’s conviction and sentence are affirmed.
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