State v. Sleeper ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICHARD WAYNE SLEEPER, Appellant.
No. 1 CA-CR 21-0004
FILED 8-10-2021
Appeal from the Superior Court in Yavapai County
No. P1300CR201701275
The Honorable Patricia A. Trebesch, Judge, Retired
AFFIRMED
COUNSEL
Law Offices of Stephen L. Duncan P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.
STATE v. SLEEPER
Decision of the Court
G A S S, Judge:
¶1 Richard Wayne Sleeper filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969). Sleeper’s counsel searched the record and identified no arguable,
non-frivolous question of law. Counsel, therefore, asks this court to review
the record for fundamental error. Sleeper was given an opportunity to file
a supplemental brief in propria persona. He has not done so. Finding no error
in the record, we affirm Sleeper’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the jury’s verdicts and resolves all reasonable inferences against
Sleeper. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 Law enforcement officers surveilled Sleeper’s apartment after
receiving a tip Sleeper was selling drugs from the premises. Officers
observed multiple people visiting Sleeper’s apartment for short periods of
time—including eleven different people visiting during a three-hour
period.
¶4 Officers searched Sleeper’s trash after watching Sleeper take
it out. The officers found bindles—small containers used to hold drugs for
sale to users—and a syringe in the trash bags. They did not know to whom
in the household they belonged because Sleeper was not the only occupant
of the apartment—there were at least five other people living there.
¶5 Later in the surveillance operation, some officers stopped a
vehicle after its two passengers left Sleeper’s apartment. The officers saw a
bindle with residue on it on the seat between the driver and passenger.
Officers searched the vehicle and found two bags containing
methamphetamine. Officers stopped a second vehicle leaving Sleeper’s
apartment. Officers again found methamphetamine.
¶6 Soon after, officers obtained a no-knock warrant to enter
Sleeper’s home. Officers were concerned people inside would try to destroy
evidence because the home had security cameras. In Sleeper’s bedroom,
officers found three empty bindles. In Sleeper’s apartment, officers found a
digital weighing scale with methamphetamine residue on it, a broken bong,
three empty bindles in the toilet bowl, and a bindle with methamphetamine
in it behind the toilet in the bathroom. The toilet water in which officers
found the empty bindles tested positive for methamphetamine. Police
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STATE v. SLEEPER
Decision of the Court
suspected Sleeper had just left the bathroom before they arrived. Sleeper
told officers he had just showered. Sleeper also told officers he used
methamphetamine, but he did not know why there would be
methamphetamine in the bathroom or who would have put it there.
¶7 The State charged Sleeper with four counts: possession of
dangerous drugs for sale (count 1), a class 2 felony; sale or transportation of
dangerous drugs (count 2), a class 2 felony; possession of drug
paraphernalia (count 3), a class 6 felony; and using a building for the sale
or manufacture of dangerous drugs (count 4), a class 6 felony. The superior
court dismissed count 2 after Sleeper moved for acquittal under Rule 20 of
the Arizona Rules of Criminal Procedure. After a two-day trial, the jury
convicted Sleeper on counts 1, 3, and 4.
¶8 The superior court sentenced Sleeper as follows: an 11.5-year
aggravated term—flat time—on count 1; a 1.75-year presumptive term on
count 3, and a 1.75-year presumptive term on count 4. The terms run
concurrently. Sleeper received 836 days of presentence incarceration credit.
¶9 Sleeper timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and
13-4033.A.1.
ANALYSIS
¶10 This court has read and considered counsel’s brief and fully
reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at
300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
¶11 The superior court conducted all the proceedings in
compliance with the Arizona Rules of Criminal Procedure. The record
shows Sleeper was present for, and represented by counsel at, all critical
stages of the proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v.
Conner, 163 Ariz. 97, 104 (1990). The jury was properly comprised of twelve
jurors and one alternate. See A.R.S. § 21-102.A. The record shows no
evidence of jury misconduct. The superior court properly instructed the
jury on the elements of the charged offenses, the State’s burden of proof,
and Sleeper’s presumed innocence. Additionally, Sleeper was given an
opportunity to speak at sentencing, and the sentences imposed are within
statutory guidelines. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-
701.D, -703.I.
CONCLUSION
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STATE v. SLEEPER
Decision of the Court
¶12 We affirm Sleeper’s convictions and sentences.
¶13 Defense counsel’s obligations pertaining to Sleeper’s
representation in this appeal have ended. Defense counsel need do no more
than inform Sleeper of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584–85 (1984).
¶14 Sleeper has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. This court, on its own motion, also grants Sleeper thirty
days from the date of this decision to file an in propria persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.
AMY M. WOOD • Clerk of the Court
FILED: AA
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