State v. Kluver

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSHUA CALE KLUVER, Appellant.
No. 1 CA-CR 17-0169
FILED 3-27-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-137268-001
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
STATE v. KLUVER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Chief Judge Samuel A. Thumma
joined.
B R O W N, Judge:
¶1 Joshua C. Kluver appeals his convictions and sentences for
unlawful flight from a law enforcement vehicle, aggravated assault on a
peace officer, and resisting arrest. Kluver’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), advising that after searching the record on appeal, he
found no meritorious grounds for reversal. Kluver was given the
opportunity to file a supplemental brief but did not do so.
¶2 Our obligation is to review the entire record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the
facts in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Kluver. State v. Guerra, 161 Ariz. 289, 293
(1989).
¶3 In August 2016, Officer Miel was advised that Kluver had a
suspended license and outstanding misdemeanor arrest warrants. Miel,
driving in a marked police vehicle, attempted to conduct a traffic stop of
the motorcycle Kluver was driving. After Miel activated his vehicle’s lights
and sirens, Kluver pulled into a parking lot, slowed down as if he were
about to stop, and then sped up. Miel followed Kluver’s motorcycle
through the parking lot and back onto the road. Shortly thereafter, a second
marked police vehicle joined Miel in the pursuit, but neither of them were
able to stay with Kluver.
¶4 Police later located Kluver and followed him into a residential
neighborhood. Kluver parked his motorcycle and ran across the street,
joining another male who was standing outside a residence. Officer
Leblanc, who was not in uniform but had a police badge and gun on his
right hip, and a police radio in his left hand, approached the two males,
loudly announced he was a police officer, and instructed Kluver to “put his
hands up.” Kluver walked towards the officer with his fists clenched and
the officer drew his gun. Moments later, a second police officer not in
2
STATE v. KLUVER
Decision of the Court
uniform arrived; Kluver turned around, ran about 10 feet, and fell in a
gravel area. The second officer detained the other male on the scene while
Leblanc attempted to detain Kluver.
¶5 Leblanc told Kluver to stay on the ground but Kluver did not
comply. Each time Kluver attempted to get up, the officer pushed him back
down. A third officer arrived to assist. Soon thereafter Leblanc lost his grip
of Kluver’s hand when Kluver tried getting up and he gave Leblanc an
“impact push,” which caused Leblanc to fall into a bush, resulting in several
scratches on his arm. Kluver was detained shortly thereafter, and the State
charged him with aggravated assault on a peace officer, resisting arrest, and
unlawful flight from a law enforcement vehicle.
¶6 Following a jury trial, Kluver was found guilty as charged.
Kluver was sentenced to one and one-half years for unlawful flight from a
law enforcement vehicle, one and one-half years for aggravated assault, and
one year for resisting arrest. Kluver timely appealed.
¶7 After a thorough review of the record, we find no reversible
error. See Clark, 196 Ariz. at 541, ¶ 50. The record reflects Kluver was
represented by counsel at all stages of the proceedings against him. Kluver
was present at all critical stages. The evidence presented supports the
convictions and the sentences imposed fall within the range permitted by
law. As far as the record reveals, these proceedings were conducted in
compliance with Kluver’s constitutional and statutory rights and the
Arizona Rules of Criminal Procedure. Therefore, we affirm Kluver’s
convictions and the resulting sentences.
3
STATE v. KLUVER
Decision of the Court
¶8 Defense counsel’s obligations pertaining to Kluver’s
representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do no more than inform Kluver 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. Id. at 584-85. On the court’s own motion, Kluver has
30 days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4