State v. Ales ( 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NOTICE: NOT FOR PUBLICATION.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.
LEVI ALES, Appellant.
Nos. CR13-0658 and CR13-0808
Consolidated
FILED 09-23-2014
Appeal from the Superior Court in Maricopa County
Nos. CR2011-153545-001 and CR2012-141400-001
The Honorable Virginia L. Richter, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
STATE v. ALES
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.
G O U L D, Judge:
¶1 Levi Shane Ales (“Defendant”) appeals from his conviction
and sentence for one count of misconduct involving weapons in case
number CR2012-141400-001 and from the determination that he violated his
probation and disposition in case number CR2011-153545-001. The trial
court sentenced Defendant to twelve years’ incarceration in case CR2012-
141400-001, and to a consecutive term of one-and-one-half years’
incarceration for violating probation in case number CR2011-153545-001.
¶2 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 he has not done so.
¶3 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
¶4 Finding no reversible error, we affirm.
PROCEDURAL HISTORY
¶5 On July 30, 2012, Defendant was sentenced to a term of
probation in Maricopa County Case No. CR2011-153545-001 (the
“Probation Case”). Three days later, on August 2, 2012, Defendant was
arrested in Maricopa County Case No. CR2012-141400-001 (the “New
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
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STATE v. ALES
Decision of the Court
Case”). Defendant was charged in the New Case with one count of
misconduct involving weapons and one count of possession or use of
dangerous drugs. Based on the charges in the New Case, a petition to
revoke Defendant’s probation was filed in the Probation Case.
¶6 The trial court continued the violation hearing in the
Probation Case while Defendant was awaiting trial in the New Case. The
New Case eventually went to trial in August 2013.
¶7 At the close of the evidence in the New Case, the jury was
initially unable to reach a verdict for the charge of misconduct involving
weapons. The trial court gave the jury an impasse instruction and asked
the jury to further deliberate. The jury then returned a verdict finding
Defendant guilty.
¶8 Following the guilty verdict in the New Case, a jury
determined Defendant had two historical prior felony convictions, one non-
historical felony conviction, and was on probation for a felony conviction
at the time of the offense.2
¶9 Based on Defendant’s conviction in the New Case, the trial
court determined that Defendant was in automatic violation of his
probation in the Probation Case. Both the New Case and the Probation Case
were set for sentencing and disposition in September 2013.
¶10 In the New Case, the trial court sentenced Defendant to
twelve years’ incarceration and awarded him 409 days of pre-sentence
incarceration credit. In the Probation case, the trial court revoked
Defendant’s probation and sentenced him to one-and-one-half years’
incarceration with credit for 258 days’ time-served. The court ordered the
sentence in the Probation Case to be served consecutively to the sentence in
the New Case.
DISCUSSION
¶11 We review the record for fundamental error. Clark, 196 Ariz.
at 537, ¶ 30, 2 P.3d at 96. We view the evidence in the light most favorable
to sustaining the convictions and resulting sentences, and any reasonable
inferences are resolved against the defendant. State v. Guerra, 161 Ariz. 289,
2 Prior to trial for the alleged prior felony convictions, the State moved
to dismiss count two, possession or use of dangerous drugs, without
prejudice.
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STATE v. ALES
Decision of the Court
293, 778 P.2d 1185, 1189 (1989); State v. Tison, 129 Ariz. 546, 552, 633 P.2d
355, 361 (1981).
I. Conviction in New Case and Revocation in Probation Case
¶12 The evidence presented at trial in the New Case showed that
on August 2, 2012, Mesa Police Department (“MPD”) Detective C. received
a tip that criminal activity was taking place inside a vehicle; the tip included
a description of the vehicle, its occupants, and its location. Detective C. and
other police officers located the vehicle and followed it. After watching the
vehicle make several traffic violations, Detective C. stopped the vehicle at a
gas station.
¶13 As Detective C. approached the vehicle, he observed a
camping chair bag lying next to the “driver’s left leg.” The driver, who was
later identified as Defendant, provided his name and date of birth, but was
unable to produce any form of identification.
¶14 During the course of the traffic stop, Detective C. learned that
Defendant’s license was suspended; as a result, he arrested Defendant.
During a subsequent search of the vehicle, another officer removed the
camping chair bag and discovered a loaded twelve-gauge shotgun (“the
shotgun”) inside. Detective C. also found a tan bag containing eleven
twelve-gauge shotgun shells and a black backpack containing a socket
wrench, a folding knife, and a wallet with two of Defendant’s state
identification cards.
¶15 Detective C. transported Defendant to jail where he was
Mirandized and questioned. Defendant claimed that he recently purchased
the vehicle, and that the camping bag was already inside the car when he
purchased it. However, Defendant could not remember from whom he
purchased the car or how much he paid for the car. Defendant also
admitted to Detective C. that he was a prohibited possessor and currently
on probation.
¶16 Accordingly, based on our review of the evidence presented
at trial, we conclude there was sufficient evidence supporting the jury’s
guilty verdict as to the crime of misconduct involving weapons.
¶17 We also find no error in the trial court decision to read an
impasse instruction to the jury. Whether a jury is at an impasse is an
important determination to be made by the trial court because prematurely
giving an impasse instruction may also be a form of coercion. See State v.
Huerstel, 206 Ariz. 93, 99, ¶ 17, 101, ¶ 25, 75 P.3d 698, 704, 706 (2003)
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STATE v. ALES
Decision of the Court
(reversing on the basis of coercion, in part because the trial court erred in
giving an impasse instruction before the jury indicated it had reached an
impasse). Arizona Rule 22.4 of Criminal Procedure permits the trial court
when advised by the jury that it has reached an impasse in its deliberations,
“to inquire how it can assist the jury in its deliberations.” State v. Andriano,
215 Ariz. 497, 509, ¶ 55, 161 P.3d 540, 552 (2007).
¶18 In this case, the jury notified the trial court the deliberations
were at a deadlock, thus requiring an impasse instruction to further assist
the jury in its deliberations. Neither party objected. The jury returned a
verdict after the impasse instruction was given. We find no error.
II. Violation of Probation
¶19 The trial court also was correct in determining that Defendant
violated his probation in the Probation Case. This determination was
properly based on Defendant’s conviction in the New Case. See Rule 27.8(e)
Ariz. R. Crim. P. (providing for automatic violation of probation based on
a determination of guilt in a new case); State v. Taylor, 187 Ariz. 567, 569,
931 P.2d 1077, 1079 (App. 1996).
III. Sentencing
¶20 The trial court did not impose a flat-time sentence in
Defendant’s New Case. Rather, the court ordered Defendant to serve a
term of community supervision pursuant to A.R.S. § 13-603(I). Pursuant to
A.R.S. § 13-708(C), a defendant sentenced for a felony while on probation
for another felony must serve a flat-time sentence; he is not for eligible for
release after serving eighty-five percent of a prison sentence. See A.R.S. §
41-1604.07(A).
¶21 Thus, pursuant to A.R.S. § 13-708(C), the court’s failure to
sentence Defendant to flat-time in the New Case constituted an illegally
lenient sentence. “Courts have [the] power to impose sentences only as
authorized by statutes and within the limits set down by the legislature.”
State v. Rosario, 195 Ariz. 264, 268, ¶ 27, 987 P.2d 226, 230 (App. 1999)
(quoting State v. Harris, 133 Ariz. 30, 31, 648 P.2d 145, 146 (App. 1982)).
However, because the State has not filed an appeal or a cross-appeal on this
issue, we do not have jurisdiction to address it. State v. Dawson, 164 Ariz.
278, 286, 792 P.2d 741, 749 (1990).
¶22 Additionally, the trial court ordered Defendant’s sentence in
the Probation Case to be served consecutively to the sentence imposed in
the New Case, and awarded Defendant credit for 258 days served prior to
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STATE v. ALES
Decision of the Court
sentencing. Again, this was error. Given the consecutive sentences
imposed, Defendant could not receive credit for time served on both the
Probation case and the New Case. State v. Cuen, 158 Ariz. 86, 87-88, 761 P.2d
160, 161-62 (App. 1988). Nonetheless, because the State has not filed an
appeal or cross-appeal on this issue, we do not have jurisdiction to address
it. Dawson, 164 Ariz. at 286, 792 P.2d at 749.
CONCLUSION
¶23 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. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure and substantial
evidence supported the finding of guilt. Defendant was present and
represented by counsel at all critical stages of the proceedings. At
sentencing, Defendant and his counsel were given an opportunity to speak.
¶24 Accordingly, Defendant’s convictions and sentences are
affirmed. 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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