State v. Pacheco ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NICHOLAS JAMES PACHECO, Appellant.
No. 1 CA-CR 19-0587
FILED 12-10-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-101181-001
The Honorable Roy C. Whitehead, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
STATE v. PACHECO
Decision of the Court
C R U Z, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Nicholas
James Pacheco has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Pacheco was convicted of Count 1, possession or use of narcotic drugs, a
Class 4 felony and Count 2, possession or use of dangerous drugs, a Class
4 felony. Pacheco was given an opportunity to file a supplemental brief in
propria persona; he has not done so. After reviewing the record, we affirm
Pacheco’s convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Pacheco. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 Officers received a call for a suspicious person in a vehicle at
a gas station. Upon arriving to the scene, officers observed a vehicle
running with the key in the ignition, parked by the gas pumps. A male,
later identified as Pacheco, was slumped down in the driver’s seat,
unconscious. Officers opened the car doors to wake Pacheco and remove
him from the vehicle. As officers assisted Pacheco out of the car, they
observed a clear bag with foil pieces in it and a white crystalline substance
in plain view. Officers also detected the odor of marijuana in the vehicle.
Pacheco had droopy eyes and he was slow to respond when speaking and
moving, and he appeared to be under the influence of substances. Pacheco
also appeared to be unable to comprehend what was going on and he was
unaware as to where he was. Pacheco was placed in the back of the police
car as officers searched his vehicle. While in the back of the patrol car,
Pacheco was “nodding off.”
¶4 Officers recovered the bag of foils and the white crystallized
substance, and additionally located a marijuana cigarette in the center
console, a container of marijuana, two small bags of Xanax bars, rolling
papers, a marijuana grinder, $1,036 in cash, four cell phones, and an empty
holster. Officers opened the bag of tin foils, and within each of twenty tin
foils was a brown, tar-like substance. The white crystalline substance tested
positive for methamphetamine, and the brown tar-like substance tested
positive for heroin. Pacheco’s blood was drawn, and he tested positive for
THC or cannabis, amphetamines, and methamphetamines. Pacheco was
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STATE v. PACHECO
Decision of the Court
arrested and charged with possession of dangerous drugs, possession of
narcotic drugs, and possession of drug paraphernalia.
¶5 The State offered Pacheco a plea agreement to conspiracy to
possess dangerous drugs, a Class 4 felony, stipulating to a prison term in
the range of one year to three-and-three-quarter years, with a presumptive
term of two-and-a-half years. Pacheco rejected the offer. Several months
later, the State again extended a new plea offer, this time to plead guilty to
possession of a dangerous drug, a Class 4 felony, with one prior felony
conviction, in the range of two-and-a-quarter years to seven-and-a-half
years. Pacheco again rejected the offer. The State offered Pacheco a final
plea offer of possession of narcotic drugs, a Class 4 felony, with two
historical priors, with a range of six to eight years in prison. Pacheco
rejected the offer and proceeded to trial.
¶6 On the second day of trial, Pacheco was not present, and the
State sought to proceed in absentia. Defense counsel stated Pacheco’s
absence was due to car issues. The court ruled that any motion to continue
would be denied, granted the State’s motion for trial in absentia, and issued
a bench warrant. Following the State’s presentation of evidence, Defense
moved for an Arizona Rule of Criminal Procedure (“Rule”) 20 judgment of
acquittal, and the court denied it, finding the State had presented
substantial evidence of guilt. The jury returned guilty verdicts for one
count of possessing dangerous drugs and one count of possessing narcotic
drugs, but found Pacheco not guilty as to the charge of possessing drug
paraphernalia.
¶7 The superior court conducted the sentencing hearing in
compliance with Pacheco’s constitutional rights and Rule 26. The court
considered aggravating factors of Pacheco’s prior felony convictions,
lengthy criminal record, and previous time served in prison. The court
considered mitigating factors of Pacheco’s drug addiction and desire to
seek rehabilitation, his prior gang affiliation, his consistent employment, his
plans to further his education, and his strong family support. Pacheco was
sentenced to two presumptive terms of four-and-a-half years to be served
concurrently, with a presentence incarceration credit of 136 days. For
Count 1, the court imposed a time payment fee of $20, drug offense fine of
$3,660, warrant charge of $45, probation assessment of $20, criminal penalty
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STATE v. PACHECO
Decision of the Court
assessment of $13, and victim rights enforcement assessment of $2. For
Count 2, the court imposed a drug offense fine of $1,830.1
DISCUSSION
¶8 We review Pacheco’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Pacheco has advised this Court that after a diligent search of
the entire record, counsel has found no arguable question of law. We have
read and considered counsel’s brief and fully reviewed the record for
reversible error, see Leon, 104 Ariz. at 300, and find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Pacheco at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Pacheco’s convictions and sentences.
¶9 Upon the filing of this decision, defense counsel shall inform
Pacheco of the status of the appeal and of his future options. Counsel has
no further obligations 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 (1984). Pacheco shall have
thirty days from the date of this decision to proceed, if he desires, with a pro
per motion for reconsideration or petition for review.
CONCLUSION
¶10 For the foregoing reasons, we affirm Pacheco’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 While on release for this case, Pacheco additionally committed
forgery, a Class 4 non-dangerous felony and possession or use of dangerous
drugs, a Class 4 felony. Pacheco pled guilty to the charges, and he received
seven-and-a-half years for the additional drug charge, to run concurrently,
and three years of supervised probation for the forgery charge.
4