State v. Wade ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.
MELODY WADE, Appellant.
No. 1 CA-CR 13-0129
FILED 3-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-128937-001
The Honorable Pamela S. Gates, Judge
CONVICTION AFFIRMED; JUDGMENT AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. WADE
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), following Melody Lorraine Wade’s conviction of disorderly
conduct by recklessly handling or displaying a dangerous instrument, a
Class 6 felony. Wade’s counsel has searched the record on appeal and
found no arguable question of law that is not frivolous. See Smith v.
Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz.
530, 2 P.3d 89 (App. 1999). Wade was given the opportunity to file a
supplemental brief but did not do so. 1 Counsel now asks this court to
search the record for fundamental error. After reviewing the entire
record, we affirm Wade’s conviction and sentence, but modify the
judgment of conviction to omit the requirement that she pay for the cost of
DNA testing.
FACTS AND PROCEDURAL HISTORY
¶2 Wade cut off a woman in traffic, then cut off the woman’s
husband, who was driving ahead of her in a separate vehicle. 2 In
retaliation, the woman and her husband each cut off Wade in turn. Wade
then pulled alongside the driver’s side of the woman’s car at a red light
and threw a glass out her window toward the woman’s car. In response,
1 While this appeal was pending, Wade's counsel filed a motion
stating he has been unable to contact Wade to furnish her the opening
brief, the transcripts and the record on appeal, and asks leave to retain all
transcripts and records on appeal until "further contact" with Wade is
established. The motion is granted.
2 Upon review, we view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all inferences against Wade. State
v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
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STATE v. WADE
Decision of the Court
the woman rolled down her window and told Wade she was calling the
police. When the light turned green, Wade made a right turn in front of
the woman, who then followed Wade into a pharmacy parking lot. Both
women then stopped, and Wade approached the woman with a knife,
making stabbing motions. Police were called and stopped Wade after she
departed from the parking lot moments later. They found a knife in
Wade’s car.
¶3 Wade was arrested and charged with disorderly conduct
and criminal damage. After a jury found her guilty of disorderly conduct,
the court suspended imposition of sentence and placed Wade on
probation for two years, including 30 days in jail.
¶4 Wade timely appealed. 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) (2014), 13-4031 (2014) and 13-
4033 (2014). 3
DISCUSSION
¶5 The record reflects Wade received a fair trial. She was
represented by counsel at all stages of the proceedings against her and
was present at all critical stages. The court held appropriate pretrial
hearings. It did not conduct a voluntariness hearing; however, the record
does not suggest a question about the voluntariness of Wade’s statements
to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977);
State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974).
¶6 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members with two alternates. The court properly instructed the jury
on the elements of the charges, the State’s burden of proof and the
necessity of a unanimous verdict. The jury returned a unanimous verdict,
which was confirmed by juror polling. The court received and considered
a presentence report, addressed its contents during the sentencing hearing
and imposed a legal term of probation.
¶7 The superior court ordered Wade "to submit to DNA testing
for law enforcement identification purposes and pay the applicable fee for
the cost of that testing in accordance with A.R.S. § 13-610." In an opinion
3 Absent material revision after the relevant date, we cite a statute's
current version.
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STATE v. WADE
Decision of the Court
issued after sentencing in this matter, this court held that A.R.S. § 13-610
(2014) does not authorize the court to require a convicted defendant to pay
the testing fee. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App.
2013). Accordingly, we modify the judgment of conviction to omit the
requirement that Wade pay the cost of DNA testing.
CONCLUSION
¶8 We have reviewed the entire record for reversible error, and,
with the exception of the requirement that Wade pay for DNA testing, we
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶9 After the filing of this decision, defense counsel’s obligations
pertaining to Wade’s representation in this appeal have ended. Defense
counsel need do no more than inform Wade 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). On the court’s own motion, Wade has 30 days from the date of this
decision to proceed, if she wishes, with a pro per motion for
reconsideration. Wade has 30 days from the date of this decision to
proceed, if she wishes, with a pro per petition for review.
:MJT
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