State v. Mello ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID THOMAS MELLO, Appellant.
No. 1 CA-CR 21-0376
FILED 2-9-2023
Appeal from the Superior Court in Mohave County
No. S8015CR201900146
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Jill L. Evans, Attorney at Law, Flagstaff
By Jill L. Evans
Counsel for Appellant
STATE v. MELLO
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Mello was given the opportunity to file a
supplemental brief and did not do so. Our obligation is to review the entire
record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999),
viewing the evidence in the light most favorable to sustaining the
conviction and resolving all reasonable inferences against Mello, State v.
Guerra, 161 Ariz. 289, 293 (1989).
¶2 In May 2018, Mello was a passenger in a car that was stopped
by police for having inoperable license plate lamps, which is a civil traffic
violation. Mello told the officer that he owned the car, but Mello did not
provide proof of insurance or registration. Mello said that because he
recently bought the car, the title was at his residence. The driver and Mello
were arrested and searched, and the officer found that Mello was carrying
heroin and approximately $10,000 in cash. The officer also searched the car,
and in the trunk he found a suitcase containing methamphetamine, heroin,
cash, firearms, drug paraphernalia, and scales.
¶3 The State indicted Mello on one count of transportation of
dangerous drugs for sale (methamphetamine), a class two felony (Count
One); one count of transportation of narcotic drugs for sale (heroin), a class
two felony (Count Two); and one count of misconduct involving weapons,
a class four felony (Count Three). Mello’s first trial resulted in a hung jury
and the superior court declared a mistrial. Mello then moved to suppress
all evidence from the traffic stop, asserting he never had the chance to
examine the vehicle involved in the traffic stop. The court denied the
motion as untimely.
¶4 At the second trial, the State presented evidence supporting
each of the alleged crimes. A forensic scientist testified that the substances
recovered from Mello’s car were methamphetamines and heroin. The State
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STATE v. MELLO
Decision of the Court
introduced into evidence the envelopes containing the recovered
methamphetamines and heroin found in Mello’s car, as well as the weights
of these substances. A detective testified that both the heroin and
methamphetamine quantities were indicative of drugs that were intended
for sale. The State also presented (1) evidence about the firearms found in
the trunk of Mello’s car, and (2) texts from Mello’s phone that a detective
identified as conversations relating to various drug sales.
¶5 On the third day of trial, Mello moved to dismiss the case with
prejudice based on an alleged Brady violation because the State did not
disclose the owner of the vehicle. See Brady v. Maryland, 373 U.S. 83 (1963).
The State responded that it did not know the owner of the vehicle until after
the final management conference. The court denied Mello’s motion,
finding that no Brady violation had occurred.
¶6 The jury returned a guilty verdict for all three counts and
found aggravating circumstances were proven. For Counts One and Two,
the jury found the following aggravating circumstances were proven: (1)
the presence of an accomplice; (2) Mello committed the offense as
consideration for the receipt, or in the expectation of the receipt, of anything
of pecuniary value; and (3) Mello’s possession of a deadly weapon during
the commission of the crime. For Count Three, the jury found that the
presence of an accomplice was proven.
¶7 The trial court sentenced Mello to an aggravated term of 15
years’ imprisonment on Count One and an aggravated term of 12.5 years’
imprisonment on Count Two, with the sentences to run concurrently. For
Count Three, the court sentenced Mello to the presumptive term of two and
a half years in prison. The court ordered the sentence for Count Three to
run consecutively to Counts One and Two because Mello’s possession of a
weapon created an additional risk of harm. The court then awarded Mello
623 days of presentence incarceration credit. Mello timely appealed, and
we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031 and
-4033(A)(1).
¶8 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Mello was present
and represented by counsel at all critical stages of the proceedings against
him. The evidence presented supports the convictions, and the sentences
imposed fall within the ranges permitted by law. As far as the record
reveals, these proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure and Mello’s constitutional and statutory
rights. We note that in August 2019, Mello’s counsel asked the trial court
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STATE v. MELLO
Decision of the Court
to “conduct an advisement” under State v. Donald, 198 Ariz. 406 (App. 2000),
to advise Mello of the State’s plea offer and the potential consequences of
proceeding to trial. The court set a date for a Donald hearing, but Mello was
not present at the scheduled hearing. The court indicated that the hearing
could be held at the final management conference if Mello appeared, but
apparently the Donald hearing never occurred. Even assuming the court
erred, nothing in the record suggests that Mello was not properly informed
of the State’s plea offer or about the consequences of proceeding to trial.
Therefore, we affirm Mello’s convictions and sentences.
¶9 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, her obligations are
fulfilled once she informs Mello of the outcome of this appeal and his future
options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Mello 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
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