Opinion
No. 1 CA-CR 13-0247
04-17-2014
STATE OF ARIZONA, Appellee, v. RICARDO HERNANDEZ-MEDINA, Appellant.
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
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-157833-002
The Honorable Karen A. Mullins, 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 Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
GEMMILL, Judge:
¶1 Ricardo Hernandez-Medina appeals his convictions and sentences for the sale or transportation of dangerous drugs, a class 2 felony, and the sale or transportation of narcotic drugs, a class 2 felony. Hernandez-Medina's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Hernandez-Medina was afforded the opportunity to file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm his convictions and sentences, except that we vacate the portion of the sentencing order requiring Hernandez-Medina to pay for DNA testing.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2011, Officer Craft observed a pickup truck, later identified as belonging to and driven by Hernandez-Medina, driving five to ten miles over the posted speed limit. After two or three miles the pickup truck abruptly slowed down and changed lanes. Officer Craft initiated his emergency lights and effected a traffic stop. The officer noticed a strong chemical odor when he approached the vehicle. He also noticed that the vehicle had been registered to Hernandez-Medina the previous day. Officer Craft noticed suspicious behavior from Hernandez-Medina such as alternating stories, rapid pulse, breaking eye contact, and hesitancy with certain questions.
¶3 Officer Craft issued Hernandez-Medina a warning and then gave Hernandez-Medina a Department of Public Safety Consent to Search form, which Hernandez-Medina read and then signed, indicating his consent to a search of the truck. During a search of the bed of the truck, Officer Craft noticed a can of liquid bed liner along with a receipt for its purchase the day before and a lone wrench that fit the bolts of a tool box
attached to the bed. After removing the tool box and drilling into the side of the truck bed, Officer Craft found a white powdery substance. The substances were removed from the bed of the truck, prepared for analysis, and submitted to a lab.
¶4 A witness from the Arizona Department of Public Safety crime lab unit testified that the substances were 2.15 pounds of methamphetamine and 4.82 pounds of cocaine. Detective Bulger testified that the street value of the cocaine would be roughly $40,515 and the value of the methamphetamine would be roughly $20,500 in Arizona. He also testified that the method in which the drugs had been packaged was for transportation. He further explained that the amount of drugs was not an amount that a person would have for personal consumption.
¶5 Hernandez-Medina testified that he purchased the truck from several people at a "swap meet" because he thought it was a good deal and he was not aware of the drugs in the back. He also said that he is always nervous when a police officer pulls him over and that, because of his difficulty understanding English, he could not understand everything the officer was saying to him.
¶6 After three days of testimony and argument, the jury found Hernandez-Medina guilty on all counts. At sentencing, the court properly found several mitigating factors including the lack of prior offenses, low risk assessment, and familial support and relationships. The court also properly found the substantial amount of the drugs involved to be an aggravating factor but nonetheless concluded that the mitigating factors were sufficient to warrant mitigated prison terms. The court sentenced Hernandez-Medina to a less than presumptive term of eight years for the transportation of dangerous drugs and the less than presumptive term of four and a half years for the transportation of narcotic drugs, to be served concurrently. The court gave Hernandez-Medina three hundred and forty days of presentence credit. The court also ordered Hernandez-Medina to serve a term of community supervision and fines of $113,160 and $223,642, as well as a $13 penalty assessment, a $20 probation surcharge, and a $20 time payment fee. Hernandez-Medina was also ordered to submit to DNA testing under A.R.S. § 13-610 and to pay the cost of the DNA testing.
ANALYSIS
¶7 Having considered defense counsel's brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we
find none. The evidence presented supports the convictions and the sentences imposed fall within the range permitted by law. As far as the record reveals, Hernandez-Medina was represented by counsel at stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶8 Arizona authorizes the department of corrections to "secure a sufficient sample of blood or other bodily substances for [DNA] testing." A.R.S. § 13-610(A). This court has held, however, that A.R.S. § 13-610 does not authorize the court to require the defendant to pay for such testing. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013) (holding that § 13-610 does not require the defendant to pay for the DNA testing). Therefore, we vacate that portion of the sentencing order requiring Hernandez-Medina to pay the cost of DNA testing.
¶9 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), counsel's obligations in this appeal have ended. Counsel need do no more than inform Hernandez-Medina of the disposition 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. Hernandez-Medina has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
CONCLUSSION
¶10 Hernandez-Medina's convictions and sentences are affirmed, except that we vacate the portion of the sentencing order requiring Hernandez-Medina to pay the cost of his DNA testing.