State v. Zamora ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTONIO ALVAREZ ZAMORA, Appellant.
No. 1 CA-CR 16-0136
FILED 11-1-2016
Appeal from the Superior Court in Maricopa County
No. CR2015-002657-001
The Honorable Mark H. Brain, Judge
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 Paul J. Prato
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
STATE v. ZAMORA
Decision of the Court
G O U L D, Judge:
¶1 Antonio Zamora appeals from his conviction and sentence for
one count of possession of a narcotic drug, a class four felony. Zamora’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (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 did not so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (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 2016). Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶3 On June 20, 2015, at around 2:30 a.m., an officer saw Antonio
Zamora riding a bicycle southbound in a northbound bicycle lane. The
officer stopped Zamora because of the traffic violation. During the
encounter, Zamora removed his ID from his wallet to show the officer.
Upon doing an ID check, the officer arrested Zamora pursuant to a valid
arrest warrant. During a search incident to arrest of Zamora’s belongings,
the officer found a “white plastic baggie with a black tar-like substance
wrapped tightly” in one of the folds of Zamora’s wallet. Based on the
substance’s appearance and vinegar smell, the officer identified it as heroin
and requested to have it tested. Two separate tests performed on the
substance by a criminalist confirmed that it contained heroin.
¶4 Zamora was indicted on one count of possession of a narcotic
drug, a class four felony. The State filed motions alleging Zamora
committed the offense while on probation for a felony conviction, and also
while on release for another felony offense. The State also alleged the
existence of prior felony convictions pursuant to A.R.S. § 13-703, and the
1 We view the evidence in the light most favorable to sustaining the
conviction and resulting sentence. See State v. Guerra, 161 Ariz. 289, 293
(1989).
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STATE v. ZAMORA
Decision of the Court
existence of historical non-dangerous felony convictions pursuant to A.R.S.
§ 13-703.
¶5 At trial, a jury found Zamora guilty of possession of a narcotic
drug. Following the aggravation phase, the jury found the State had proven
Zamora was on probation for a prior felony conviction and was also on
release for another felony offense at the time he committed the present
offense. The court later determined, after a hearing, that Zamora had five
prior felony convictions.
¶6 The court sentenced Zamora to a term of twelve years flat,
with 168 days of credit for presentence incarceration. Further, the court
ordered the sentences for this case, as well as Maricopa Superior Court Case
No. CR 2011-160033 (the “Probation Case”) and Maricopa Superior Court
Case No. CR 2014-134702 (the “Pretrial Release Case”) to be served
concurrently. However, in response to Zamora’s Motion for
Reconsideration of Sentence, the court vacated the imposition of flat time,
and ruled that Zamora was eligible for early release credits.
DISCUSSION
¶7 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. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and substantial evidence
supported the finding of guilt. Zamora was present and represented by
counsel at all critical stages of the proceedings. At sentencing, Zamora and
his counsel were given an opportunity to speak, and the court imposed a
legal sentence.
¶8 However, the superior court improperly awarded Zamora
only 168 days’ of credit for presentence incarceration. Zamora was arrested
August 27, 2015, and was in custody through February 11, 2016, the day
before sentencing. Including the day of arrest, Zamora was incarcerated for
169 days. See State v. Carnegie, 174 Ariz. 452, 454 (App. 1993) (holding a
court must award a defendant presentence incarceration credit “from and
including the day of booking”). Therefore, we modify the superior court’s
sentence to include presentence incarceration credit of 169 days.
¶9 The court also erred by ordering the sentence in this case to
be served concurrently with the sentences imposed in the Probation Case
and the Pretrial Release Case. Pursuant to A.R.S. § 13-708(E), the sentence
imposed in this case should have been ordered served consecutively to the
sentences imposed in the Probation Case and the Pretrial Release Case.
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STATE v. ZAMORA
Decision of the Court
State v. Piotrowski, 233 Ariz. 595, 599, ¶ 17 (App. 2014). Nonetheless,
because the State has not filed an appeal or cross-appeal on this issue, we
do not have jurisdiction to address it. State v. Dawson, 164 Ariz. 278, 286
(1990).
CONCLUSION
¶10 Counsel’s obligations pertaining to Zamora’s representation
in this appeal have ended. Counsel need do nothing more than inform
Zamora 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 (1984).
Zamora 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.
AMY M. WOOD • Clerk of the Court
FILED: AA
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