Opinion
No. 1 CA-CR 13-0487
02-04-2014
STATE OF ARIZONA, Appellee, v. MICHAEL FRANCIS PAULSON, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Adams 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NOTICE: NOT FOR PUBLICATION.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. CR2012-145002-001
The Honorable Hugh E. Hegyi, 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 Terry J. Adams
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Michael Francis Paulson appeals his conviction of unlawful flight from a law enforcement vehicle, a class 5 felony, and the resulting imposition of probation. Paulson's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Paulson was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Having reviewed the record, we affirm Paulson's conviction and sentence as modified, vacating the portion of the sentencing order requiring Paulson to pay for his DNA testing.
FACTS AND PROCEDURAL BACKGROUND
¶2 The relevant facts, viewed in the light most favorable to upholding the jury's verdict, are as follows. One afternoon in July 2012, Phoenix Police Officer Ham observed Paulson driving a white pickup truck south on 50th Street "in an aggressive manner." Officer Ham, driving a fully marked patrol vehicle, followed Paulson for approximately one mile and, by pacing Paulson's vehicle, observed that his speed exceeded the posted limit.
¶3 Paulson stopped in the left turn lane at Chandler Boulevard to wait for a red light, and Officer Ham stopped immediately behind him. Just before the red light changed to green, the officer activated his overhead red and blue emergency lights and sounded his horn to effectuate a traffic stop. At that time, Officer Ham noticed Paulson look back at the police vehicle both in his rear-view mirror and over his shoulder through the rear window.
¶4 The light turned green and Paulson turned left onto Chandler Boulevard with Officer Ham following. Officer Ham sounded his horn several times, but Paulson did not pull over. Officer Ham then activated his siren and followed directly behind as Paulson drove east at the speed limit, passing by numerous safe places to pull over. After following Paulson for 1.7 miles with lights and siren activated, Officer Ham terminated the pursuit, and Paulson drove away. Motor vehicle records showed Paulson as the registered owner of the white pickup truck. Officer Ham was shown a photographic lineup, and he identified Paulson as the driver.
¶5 The State charged Paulson with unlawful flight from a law enforcement vehicle and served Paulson with a summons by mail. See Ariz. Rev. Stat. ("A.R.S.") § 28-622.01. After a four-day trial, a jury found Paulson guilty as charged. After the verdict, Paulson moved for a new trial, alleging the State had improperly commented on his pretrial silence. The superior court denied the motion after full briefing and argument, finding no impermissible comment on Paulson's right to silence and, in any event, no impact on the outcome of the case. The court then suspended sentence and imposed three years' probation with a 10-day jail term.
Absent material revisions after the relevant date, we cite a statute's current version.
¶6 Paulson timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033.
DISCUSSION
¶7 Having considered counsel's brief and reviewed the record for reversible error, we affirm. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶8 Paulson was present and represented by counsel at all stages of the proceedings against him. The record reflects that the superior court afforded Paulson his rights under the United States and Arizona Constitutions and our statutes, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The court conducted appropriate pre- and post-trial hearings, and the evidence presented at trial and summarized above was sufficient to support the jury's guilty verdict. The probation and jail term imposed fall within the range prescribed by law.
¶9 At sentencing, the superior court ordered, pursuant to A.R.S. § 13-610, that Paulson "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing." In State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13-610 does not authorize the sentencing court to require the convicted person to pay for his DNA testing. We therefore vacate the portion of the sentencing order requiring Paulson to pay the cost of his DNA testing. We otherwise affirm Paulson's conviction and sentence.
CONCLUSION
¶10 After the filing of this decision, defense counsel's obligations pertaining to Paulson's representation in this appeal will end after informing Paulson of the outcome of this appeal and his future options. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Paulson shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.