Opinion
No. 2 CA-CR 2013-0362
09-15-2014
THE STATE OF ARIZONA, Appellee, v. TY COLTON MORENO, Appellant.
COUNSEL John William Lovell, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20124790002
The Honorable Howard Hantman, Judge
AFFIRMED
COUNSEL John William Lovell, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 After a jury trial, Ty Moreno was convicted of armed robbery, aggravated robbery, unlawful use of means of transportation, possession of a deadly weapon by a prohibited possessor, and two counts of aggravated assault. The trial court found Moreno had two historical prior felony convictions and sentenced him to a combination of concurrent and consecutive, presumptive prison terms, for a total of 20.75 years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), avowing he has reviewed the record and found no "arguable question of law" to raise on appeal. In compliance with State v. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d 89, 97 (App. 1999), counsel also has provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record."
¶2 Pursuant to our obligation under Anders, we have reviewed the record in its entirety and are satisfied it supports counsel's recitation of the facts. Moreno has not filed a supplemental brief.
¶3 Viewed in the light most favorable to upholding the jury's verdicts, see State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008), the evidence established that Moreno was a passenger in a dark-colored Dodge Durango that pulled alongside A.R. and A.G., two teenaged girls who were walking on a neighborhood sidewalk during the early morning hours of December 22, 2012. Moreno got out of the vehicle, pulled a handgun, ordered the girls to the ground and patted them down, taking A.R.'s cellular telephone and debit card and A.G.'s portable music player and wallet. Using a global positioning system application, A.R.'s brother traced her telephone to a motel, and South Tucson police officers followed him to the location, where they were joined by Pima County Sheriff's deputies. After finding a dark-colored Dodge Durango, which had been reported stolen, parked outside one of the motel rooms, an officer obtained a telephonic search warrant, and police entered the room, finding Moreno and his female companion inside, along with A.R.'s telephone, a handgun, and ammunition. Moreno previously had been convicted of a felony, and his rights to possess a firearm had not been restored. This evidence was sufficient to support the jury's guilty verdicts. See A.R.S. §§ 13-1204(A)(2), 13-1803(A)(1), 13-1903, 13-1904, 13-3102(A). We further conclude the sentences imposed are within the statutory limits, and they were imposed in a lawful manner. See A.R.S. § 13-703.
¶4 Counsel suggests that we consider whether two circumstances require further briefing and review: (1) whether the trial court erred in denying Moreno's motion to sever the prohibited possessor count for trial, and (2) whether the court erred in awarding restitution to A.R. in the amount of $449.99. As counsel points out, however, Rule 13.4, Ariz. R. Crim. P., provides that a motion to sever offenses must be "renewed during trial at or before the close of the evidence" and that "[s]everance is waived if a proper motion is not timely made and renewed." See also State v. Flythe, 219 Ariz. 117, ¶ 10, 193 P.3d 811, 814 (App. 2008) (observing "our courts have strictly applied the waiver provisions of Rule 13.4(c)").
¶5 Similarly, although the sentencing transcript does not reflect the basis for the restitution award to A.R., the amount awarded is consistent with her testimony estimating the value of her cellular telephone. Counsel's suggestion that A.R. was "not entitled to restitution because the [telephone] was recovered" is wholly without merit. According to the record, the telephone was not scheduled to be returned to A.R. until after Moreno's "appellate rights have run." The restitution award is supported by the evidence and bears a reasonable relationship to A.R.'s loss, see State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App. 1991), and it provided A.R. the "prompt restitution" that is constitutionally required, see Ariz. Const. art. II, § 2.1(A)(8). The court's restitution award does not give rise to an arguable issue for appellate review.
¶6 In our examination of the record pursuant to Anders, we have found no reversible error and no arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, we affirm Moreno's convictions and sentences.