State v. Maestas ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 CARBAJAL MAESTAS, Appellant.
No. 1 CA-CR 17-0206
FILED 5-3-2018
Appeal from the Superior Court in Maricopa County
No. CR2014-134402-001
The Honorable James R. Rummage, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
STATE v. MAESTAS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Frank Carbajal Maestas timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), following his conviction of misconduct involving weapons
(possession of a deadly weapon by a prohibited possessor), a Class 4 felony.
Maestas'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. at 744; State v. Clark, 196 Ariz. 530 (App. 1999).
Maestas was given the opportunity to file a supplemental brief but did not
do so. After reviewing the entire record, we affirm Maestas's conviction
and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 Maestas sold a .36 caliber black-powder revolver to a pawn
shop in Phoenix.1 Pursuant to law, the shopkeeper recorded Maestas's
name and address, then reported the transaction to the Phoenix Police
Department. After a routine investigation, police discovered Maestas had
been convicted of a felony and had not applied to have his rights restored.
The shopkeeper picked Maestas's picture out of a photo lineup. After police
advised Maestas of his rights under Miranda v. Arizona, 384 U.S. 436, 478-79
(1966), he admitted he had sold the revolver to the pawn shop, been
convicted of a felony, and had not petitioned the court to restore his rights.
¶3 Maestas did not appear for trial and the court found that he
was absent voluntarily. The jury heard testimony from the shopkeeper,
several police officers and a fingerprint expert. In addition, a firearms
expert testified that the revolver was operable. The jury found Maestas
guilty of the single charge. He appeared for the sentencing hearing, at
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Maestas. See
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2
STATE v. MAESTAS
Decision of the Court
which the court sentenced him as a category-three offender to six years'
imprisonment.
¶4 Maestas timely appealed. 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) (2018), 13-4031 (2018) and
-4033(A)(1) (2018).2
DISCUSSION
¶5 The record reflects Maestas received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages.
¶6 The court did not err in finding Maestas voluntarily absent
from trial. "The court may infer that a defendant's absence is voluntary if
the defendant had actual notice of the date and time of the proceeding,
notice of the right to be present, and notice that the proceeding would go
forward in the defendant's absence." Ariz. R. Crim. P. 9.1. Maestas's
attorney had advised him of the trial date and time, and the court had
admonished him to be present at all proceedings and warned him that if he
failed to appear, "the State could go ahead with the trial without you being
present."
¶7 Maestas's statements to police were properly admitted in
evidence. The court did not conduct a voluntariness hearing; however, the
record did not suggest a question about the voluntariness of Maestas's
statements. See State v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111
Ariz. 271, 275 (1974).
¶8 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 charges, the State's burden of proof and the necessity of a unanimous
verdict. On the record presented, the court was not required to instruct the
jury on Maestas's knowledge or belief about the revolver's operability. See
State v. Young, 192 Ariz. 303, 307, ¶ 16 (App. 1998). The jury returned a
unanimous verdict, which the jury affirmed in open court.
¶9 The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed a legal
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
3
STATE v. MAESTAS
Decision of the Court
sentence for the crime of which Maestas was convicted. It sentenced
Maestas as a category-three offender pursuant to A.R.S. § 13-703(C) (2018)
after finding he had two or more historical prior felony convictions.
Maestas admitted the prior convictions before sentencing. Before his
admissions, the court gave him several of the advisements required by
Arizona Rule of Criminal Procedure 17.2, but did not advise him that the
prior convictions he was admitting would increase his sentence. See A.R.S.
§ 13-703(C), (J); Ariz. R. Crim. P. 17.2(a)(2), 17.6; State v. Morales, 215 Ariz.
59, 61, ¶ 10 (2007). The omission of the advisement was not material,
however, because the court also received in evidence a "pen pack" that
evidenced the prior convictions. See State v. Gonzales, 233 Ariz. 455, 457-58,
¶¶ 8-9 (App. 2013) ("Proof of prior convictions is typically achieved through
an evidentiary hearing in which the State presents a certified copy of the
conviction or equivalent evidence as well as proof that the defendant is the
person identified in the document.").
CONCLUSION
¶10 We have reviewed the entire record for an arguable issue and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.
¶11 Defense counsel's obligations pertaining to Maestas's
representation in this appeal have ended. Counsel need do no more than
inform Maestas 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
Ariz. 582, 584-85 (1984). On the court's own motion, Maestas has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Maestas has 30 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: AA
4