State v. Guarino

NOTICE: NOT FOR PUBLICATION.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.
DAVID PAUL GUARINO, Appellant.
No. 1 CA-CR 13-0520
FILED 4-22-2014
Appeal from the Superior Court in Mohave County
No. S8015CR201200341
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. GUARINO
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Judge Lawrence F. Winthrop and Judge Kenton D. Jones 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 David Paul Guarino's conviction of theft, a Class 3
felony. Guarino'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). Guarino was given the opportunity to file a supplemental
brief but did not do so. Counsel now asks this court to search the record
for fundamental error. After reviewing the entire record, we affirm
Guarino's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 Police came to Guarino's home to investigate a burglary.1
There they noticed a six-foot safe that matched the description of one
reported stolen from a home a few weeks before. The safe appeared to
have been broken into. Officers brought the burglary victims to Guarino's
home, where the victims identified several other items stolen from them.
Some of the property found in Guarino's home was in a box bearing the
victims' names and address. Paperwork belonging to the victims,
including bills and receipts, was found in Guarino's trash.
¶3 Guarino did not claim to own the property and repeatedly
apologized to the victims while they were at his home, but asserted he did
not know the items had been stolen. Guarino claimed the items were
given to him by an acquaintance who said he found them in a vacant
house. Although Guarino knew his acquaintance had been convicted of
burglary, he asserted he did not believe the property was stolen because
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Guarino.
See State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
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STATE v. GUARINO
Decision of the Court
he had told his acquaintance not to bring stolen property to his house.
Guarino told police the acquaintance informed him the items were stolen
just 15 minutes before police arrived at his house.
¶4 A jury found Guarino guilty of theft of property with a value
of $4,000 or more pursuant to Arizona Revised Statutes ("A.R.S.") section
13-1802(A)(5), (G) (2014), and the court sentenced him to a presumptive
term of 11.25 years' incarceration.2
¶5 Guarino timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2014), 13-4031 (2014) and -4033 (2014).
DISCUSSION
¶6 The record reflects Guarino received a fair trial. He was
represented by counsel at all stages of the proceedings against him and
was present at all critical stages. The court held appropriate pretrial
hearings. It did not conduct a voluntariness hearing, but the record does
not suggest a question about the voluntariness of Guarino'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).
¶7 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charge, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, and Guarino declined to
have the jury polled. The court received and considered a presentence
report, addressed its contents during the sentencing hearing and imposed
a legal sentence for the crime of which Guarino was convicted.
CONCLUSION
¶8 We have reviewed the entire record for reversible error and
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 Guarino's representation in this appeal have ended. Defense
counsel need do no more than inform Guarino of the outcome of this
2 Absent material revision after the date of the alleged offense, we
cite a statute's current version.
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STATE v. GUARINO
Decision of the Court
appeal and his 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, Guarino has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration. Guarino has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
:MJT
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