State v. Nunez ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
FRANK NUNEZ, Appellant.
No. 1 CA-CR 20-0165
FILED 12-31-2020
Appeal from the Superior Court in Maricopa County
No. CR2018-0138855-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. NUNEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Frank Nunez appeals his conviction and sentence for second
degree burglary. After searching the record, Nunez’s defense counsel
identified no arguable question of law that is not frivolous. Therefore, in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), defense counsel asks this Court to search the record for
fundamental error. Nunez filed a supplemental brief. After reviewing the
entire record, we reject the arguments raised in Nunez’s supplemental brief
and find no error. We affirm his conviction and sentence.
¶2 In August 2018, Nunez came to Doris and Fred Lopez’s door
asking for work. Doris described Nunez as a thin man with gray hair,
wearing an all-black outfit and carrying a black knapsack. After Fred turned
him away, Nunez walked two houses down and then knocked on C.T.’s
door. Nunez stood in front of C.T.’s house for several minutes before
entering the backyard. Fred drove to C.T.’s house and parked on the street
to get a closer look. Fred saw the arcadia door open in the backyard, so he
called C.T. and 911. Fred observed Nunez exiting the house with a duffle
bag. C.T. called another neighbor, who joined Fred in following Nunez.
¶3 A Glendale Police sergeant arrived at C.T.’s house and saw
Nunez fleeing the scene. Nunez threw two bags over a fence before the
sergeant apprehended him. Another officer searched Nunez, finding
Nunez’s wallet, jewelry, coins, and a pocketknife. Nunez admitted to not
owning the pocketknife, jewelry, or coins. A detective also retrieved the two
bags that Nunez threw over the fence. The bags contained holsters, coins,
ammunition, a magazine, and two handguns. C.T.’s wife, R.T., claimed
ownership of the guns, jewelry, coins, and pocketknife. She clarified that
Nunez did not have permission to enter the home or take any items. And
police noticed some damage to the master bedroom doorframe and that
items were scattered about the bedroom.
¶4 The State charged Nunez with second degree burglary, a class
3 felony, and misconduct involving weapons, a class 4 felony. The State
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STATE v. NUNEZ
Decision of the Court
alleged prior felony convictions and aggravating circumstances. The
superior court ordered a bifurcated trial on the two charges to minimize
any risk that Nunez’s prior felony convictions would prejudice the jury.
¶5 The case proceeded to a jury trial on the burglary charge. The
police officer, sergeant, and detective testified, as well as the Lopezes and
R.T. Nunez did not testify. The jury found Nunez guilty as charged but did
not find either aggravating circumstance.
¶6 Before the second trial began, Nunez pled guilty to
misconduct involving weapons, with one prior felony conviction, and
stipulated to a 4.5-year sentence. Nunez’s prior conviction noted in the plea
deal was for shoplifting, a class 6 felony, from January 11, 2001. Before
sentencing, the State presented evidence that Nunez’s fingerprints on his
Department of Corrections packet matched his fingerprints taken after the
burglary. The court found that the State proved Nunez’s historical prior
felony convictions and classified him as a category three repetitive offender.
Nunez had prior felony convictions from 2000 for second degree burglary,
a class 3 felony, and shoplifting, a class 6 felony. Nunez was sentenced to
mitigated terms of 8.5 years for burglary and 4.5 years for misconduct
involving weapons, to run concurrently. Nunez also had thirty-four days
of pre-incarceration credit. Nunez timely appealed. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-
4031, and -4033(A)(1).
¶7 The record reveals sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Nunez is guilty of second
degree burglary. The record reflects that the superior court afforded Nunez
all of his constitutional and statutory rights and that the proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
Nunez was represented by counsel at all stages of the proceedings and he
was present at all critical stages. See State v. Conner, 163 Ariz. 97, 104 (1990)
(right to counsel); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be
present at critical stages). Nunez had the opportunity to speak during
sentencing. The court stated on the record the factors it considered in
imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10.
¶8 Nunez’s supplemental brief challenges his sentence on two
grounds. Nunez claims the superior court erred in sentencing him as a
category three repetitive offender because one of his prior convictions was
too distant in time to qualify as a historical prior felony conviction under
A.R.S. §§ 13-105(22) and -703. He also argues the superior court improperly
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STATE v. NUNEZ
Decision of the Court
“aggravated” his sentence despite the court sentencing him to a less-than-
minimum term.
¶9 For a defendant to be sentenced as a category three repetitive
offender, the defendant must have two or more “historical prior felony
convictions.” A.R.S. § 13-703(C). Historical prior felony convictions include
certain class 2 or 3 felonies committed “within the ten years immediately
preceding the date of the present offense” and certain class 4, 5, or 6 felonies
committed “within the five years immediately preceding the date of the
present offense.” A.R.S. § 13-105(22)(b), (c). A defendant’s time spent
incarcerated is excluded from the calculation. Id.
¶10 Nunez committed the first burglary on June 1, 2000 and was
sentenced on January 11, 2001. Nunez left prison on November 25, 2009. He
committed the second burglary on August 7, 2018. Excluding incarceration,
the time between the first and second burglaries is approximately 9 years
and 3 months, qualifying the first conviction as a historical prior felony
conviction. See A.R.S. § 13-105(22)(b). The second historical prior felony
conviction was simply the misconduct involving weapons charge to which
Nunez pled guilty. Thus, Nunez had the requisite number of historical prior
felony convictions to qualify as a category three repetitive offender.
¶11 Turning to Nunez’s second argument, we find no error in the
superior court’s sentencing. The trial court must consider all mitigating
evidence, but “the weight to be given any factor asserted in mitigation falls
within the trial court’s sound discretion.” State v. Vermuele, 226 Ariz. 399,
403, ¶ 15 (App. 2011). Neither the jury nor the superior court found any
aggravating circumstances. But the court did find two circumstances
warranting a mitigated sentence. See A.R.S. § 13-703(G). Nunez’s 8.5-year
sentence falls between the mitigated term of 7.5 years and minimum term
of 10 years. See A.R.S. 12-703(J) (the sentencing tables denote ranges of
possible sentences).
¶12 This Court has read counsel’s brief and searched the record
for reversible error but has found none. Leon, 104 Ariz. at 300; State v. Clark,
196 Ariz. 530, 537, ¶ 30 (App. 1999). Accordingly, we affirm Nunez’s
conviction and sentence.
¶13 Defense counsel’s obligations pertaining to Nunez’s
representation in this appeal have ended. Counsel need do no more than
inform Nunez 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. See State v. Shattuck, 140
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STATE v. NUNEZ
Decision of the Court
Ariz. 582, 584–85 (1984). On the court’s own motion, Nunez has thirty days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Nunez also has thirty days from the date of this
decision to proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: JT
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