Statev.Bergeron

ARIZONA COURT OF APPEALS DIVISION ONEJun 11, 2019
No. 1 CA-CR 18-0366 (Ariz. Ct. App. Jun. 11, 2019)

No. 1 CA-CR 18-0366

06-11-2019

STATE OF ARIZONA, Appellee, v. KEVIN SCOTT BERGERON, Appellant.

COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mark E. Dwyer Counsel for Appellant


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County
No. CR2017-134190-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined.

SWANN, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from Kevin Scott Bergeron's drug-related convictions and sentences.

¶2 Bergeron's counsel identifies no issues for appeal. We ordered counsel to provide Bergeron copies of the opening brief and all records on appeal. But when counsel informed us that he was unable to ascertain a current address for Bergeron, whom he believed to be transient, we granted counsel's request to retain all records pending client contact. The record does not indicate that contact was ever reestablished. We conclude that Bergeron's failure to keep counsel informed of his address constitutes waiver of his right to be furnished with a copy of the record and to file a pro per brief. See In re Schulman, 252 S.W.3d 403, 408 n.21 (Tex. Crim. App. 2008). We have independently reviewed the record for fundamental error. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We find none.

¶3 Bergeron was tried by jury for one count of possession of dangerous drugs and two counts of possession of drug paraphernalia—specifically, a glass pipe and a matchbox.

¶4 At trial, the state presented evidence of the following facts. On the afternoon of July 25, 2017, police responded to a call concerning two individuals' use of a fenced swimming pool encircled by privately owned townhomes. Officers saw Bergeron and a female reclining beneath a tree in a grassy area outside of the fence. Beside them, within arms' reach, were two bicycles and multiple bags. Two officers approached, identified themselves as law enforcement, and started a conversation with the pair. Both individuals gave their correct names when asked. Officers ran Bergeron's name, discovered that he had two misdemeanor warrants, and arrested him. An officer searched the bags next to Bergeron and in the front pocket of one found a pair of folded socks and a matchbox. Upon removing the socks, the officer immediately felt an item between them. He removed

the item and saw that it was a four-inch-long glass pipe with indications that it had been used to smoke methamphetamine—it had black marks consistent with heating and it contained white residue. The officer then opened the matchbox and found methamphetamine inside. Bergeron, after having been advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), admitted that the bag, socks, and matchbox were his. Bergeron stated that he had removed the socks and the matchbox from a dumpster and had no knowledge that they contained contraband.

¶5 For his case, Bergeron presented the testimony of the female companion. She testified that during the period in question, she and Bergeron regularly searched dumpsters together and would often quickly grab items without immediately inspecting them. She further testified that she had never seen Bergeron with the pipe, and that she knew him to have problems with his hands that inhibited his ability to firmly grip items.

¶6 The jury convicted Bergeron on all counts. The court entered judgment on the verdicts and sentenced Bergeron to concurrent two-year supervised probation terms.

¶7 We perceive no fundamental error. Bergeron was present and represented at all stages, the jury was properly comprised and instructed, and there is no evidence of any juror or prosecutor misconduct.

¶8 The evidence was sufficient to support the jury's verdicts. A person commits possession of dangerous drugs when he knowingly possesses methamphetamine, and he commits possession of drug paraphernalia when he possesses, with the intent to use, equipment intended or designed for use in packaging, repackaging, storing, containing, concealing, ingesting, inhaling, or otherwise introducing methamphetamine into the human body. A.R.S. §§ 13-3401(6)(c)(xxxviii), -3407(A)(1), -3415(A), (F). The state presented evidence that law enforcement, pursuant to a lawful search, recovered from Bergeron's bag a matchbox containing methamphetamine and a pipe used to ingest the drug.

¶9 The court imposed lawful probation terms. See A.R.S. § 13-3407(B)(1) (probation available for possession of dangerous drug); §§ 13-901.01(A), (J), 36-2501(A)(3), 36-2513(A)(3)(b) (probation available for personal possession of methamphetamine or drug paraphernalia); § 13-901(A) (supervised probation available); §§ 13-3407(B)(1), -3415(A), -902(A)(3)-(4) (two-year probation terms available for possession of dangerous drugs and possession of drug paraphernalia).

¶10 We affirm Bergeron's convictions and probation terms. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Bergeron of the status of this appeal and his future options. Id. Bergeron has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.21(b)(2)(A). Upon the court's own motion, Bergeron has 30 days from the date of this decision in which to file a motion for reconsideration.