State v. Vanleer ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARJAN KAYKAVOOSI VANLEER, Appellant.
No. 1 CA-CR 15-0371
FILED 4-26-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-110187-001
The Honorable Jerry Bernstein, Judge Pro Tempore
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Hopkins Law Office PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
STATE v. VANLEER
Decision of the Court
Marjan K. Vanleer, Florence
Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Marjan Kaykavoosi Vanleer timely appeals from her
conviction and sentence for disorderly conduct, a Class 6 undesignated
felony. After searching the record on appeal and finding no arguable
question of law that was not frivolous, Vanleer’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking
this court to search the record for fundamental error. This court granted
counsel’s motion to allow Vanleer to file a supplemental brief in propria
persona, and its motion to extend the time for filing such brief, and Vanleer
did so. We reject the arguments raised in Vanleer’s supplemental brief and,
after reviewing the entire record, we find no fundamental error. Therefore,
we affirm Vanleer’s conviction and sentence as corrected.
FACTS AND PROCEDURAL BACKGROUND1
¶2 Victim F.C. testified that on March 2, 2014, he was driving his
truck with passenger A.S. when the car in front of them—driven by
Vanleer—began “swerving in and out of the lane.” F.C. “tried to go
around” Vanleer’s car, but “the car swerve[d]” almost hitting them.
Vanleer then went “around [them] in her vehicle,” started “yelling at [them]
and then [sped] off” before stopping at a red light. When the light turned
green, instead of driving forward, Vanleer “got out of her car and walked
toward” F.C. and A.S. holding “a gun in her hand” and “pointed [it] at”
them. F.C. and A.S. also testified when Vanleer came up to the truck she
was yelling expletives and told them to “[g]et out of the vehicle.” After they
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Vanleer.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. VANLEER
Decision of the Court
refused to leave their truck, Vanleer eventually returned to her car and
drove away. F.C. then called the police.
¶3 The police located Vanleer and detained her for questioning.
In a recorded police interview, Vanleer admitted she had left her car to
confront F.C. because she was upset they nearly ran her off the road. She
also told the officer she “may have had [the gun] in [her] pants” when she
got out of the car, but could not “remember offhand” whether she was
carrying it in her hand. The police found the gun in the center console of
her car. At trial, Vanleer again stated she “may have” had a gun on her
when she approached the truck.
¶4 The State charged Vanleer with two counts of aggravated
assault, one count for each F.C. and A.S. After trial, a 12 member jury found
Vanleer not guilty on both counts of aggravated assault, but found her
guilty on one count of the lesser included offense—disorderly conduct, a
non-dangerous offense, for her actions against F.C. The superior court
suspended imposition of the sentence, placed Vanleer on three years of
supervised probation, and ordered her to serve two months in jail.
DISCUSSION
I. Supplemental Brief
¶5 As we construe her supplemental brief, Vanleer first argues
her sentence of two months in jail and three years’ probation was excessive
for a disorderly conduct conviction. If a sentence is within the permissible
statutory limits we will not modify or reduce it unless it is clearly excessive.
See State v. Gillies, 142 Ariz. 564, 573, 691 P.2d 655, 664 (1984). The record
does not support Vanleer’s contention that her sentence was clearly
excessive. See generally State v. Vermuele, 226 Ariz. 399, 403, ¶ 15, 249 P.3d
1099, 1103 (App. 2011) (appropriate sentence within statutory range rests in
trial court's discretion; abuse of discretion characterized by failure to
consider factors relevant to imposing sentence). Vanleer’s sentence was
within the prescribed statutory range and was imposed lawfully.
¶6 Vanleer next argues her conviction was not supported by
sufficient evidence. Based on our review of the record, however, the State
presented sufficient evidence supporting Vanleer’s conviction, see supra ¶
2-3, and any inconsistencies or weaknesses in the evidence merely went to
the weight of the evidence. See State v. Erivez, 236 Ariz. 472, 476, ¶ 16, 341
P.3d 514, 518 (App. 2015).
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STATE v. VANLEER
Decision of the Court
¶7 Finally, Vanleer argues her trial counsel was ineffective. This
court will not consider claims of ineffective assistance of counsel on direct
appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective
assistance of counsel claims must be raised in Arizona Rule of Criminal
Procedure 32 proceedings).
II. Anders Review
¶8 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Vanleer received a fair
trial. She was represented by counsel at all stages of the proceedings and
was present at all critical stages.
¶9 As discussed, the evidence presented at trial was substantial
and supports the verdict. The jury was properly comprised of 12 members
and the court properly instructed the jury on the elements of the charges,
Vanleer’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, Vanleer was given an opportunity to
speak at sentencing, and her sentence was within the range of acceptable
sentences for her offense.
¶10 We note, however, the superior court’s sentencing minute
entry did not cite Arizona Revised Statutes (“A.R.S.”) section 13-604(A)
(2010) when it refrained “from designating the offense as a felony or
misdemeanor until the probation is terminated.” Thus, we correct
Vanleer’s sentence to reflect A.R.S. § 13-604 as the sentencing statute for her
class 6 undesignated felony conviction.
¶11 We also note a discrepancy between the sentencing transcript
and the sentencing minute entry. At the sentencing hearing, the superior
court sentenced to Vanleer to “two months” in jail “beginning no later than
. . . June 5, 2015” and “not to be released until August 5, 2015.” The superior
court’s minute entry, however, states she was to be incarcerated in “jail for
2 month(s), beginning May 29, 2015 with credit for 0 day(s) served. Not to
be released until August 5, 2015.” We correct the sentencing minute entry
to reflect that the court ordered Vanleer to be incarcerated in jail for two
months beginning no later than June 5, 2015.
CONCLUSION
¶12 We decline to order briefing and affirm Vanleer’s conviction
and sentence as corrected.
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STATE v. VANLEER
Decision of the Court
¶13 After the filing of this decision, defense counsel’s obligations
pertaining to Vanleer’s representation in this appeal have ended. Defense
counsel need do no more than inform Vanleer of the outcome of this appeal
and her 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, 684 P.2d 154, 156-57 (1984).
¶14 Vanleer has 30 days from the date of this decision to proceed,
if she wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Vanleer 30 days from the date of this decision to
file an in propria persona motion for reconsideration.
:ama
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