                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

               ROBERT REUBEN SANCHEZ, III, Appellant.

                             No. 1 CA-CR 13-0847
                               FILED 2-3-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-106152-001
               The Honorable Roland J. Steinle, III, Judge

                       AFFIRMED AS CORRECTED


                                   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. SANCHEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.


N O R R I S, Judge:

¶1             Robert Reuben Sanchez, III timely appeals from his
convictions and sentences for: count one, possession or use of dangerous
drugs, in violation of Arizona Revised Statute (“A.R.S.”) section 13-3407
(Supp. 2014),1 a class 4 felony; count two, possession or use of marijuana, in
violation of A.R.S. § 13-3405 (Supp. 2014), a class 6 felony; counts three and
four, misconduct involving weapons, in violation of A.R.S. § 13-3102 (Supp.
2014), class 4 felonies; and count five, misconduct involving body armor, in
violation of A.R.S. § 13-3116 (2010), also a class 4 felony. After searching
the record on appeal and finding no arguable question of law that was not
frivolous, Sanchez’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow
Sanchez to file a supplemental brief in propria persona, but Sanchez did not
do so. After reviewing the entire record, we find no fundamental error and,
therefore, affirm Sanchez’s convictions and sentences as corrected.

             FACTS AND PROCEDURAL BACKGROUND2

¶2            At 8:44 p.m. on January 27, 2012, two police officers saw an
SUV speeding on Buckeye Road in Phoenix, Arizona. They stopped the
SUV, and after the driver—Sanchez—rolled down the side window one of
the officers smelled an “overwhelming odor” of perfume or air freshener,
that at trial he explained was frequently used to conceal the odor of


              1Although    the Arizona Legislature amended certain statutes
cited in this decision after the date of Sanchez’s arrest, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.
              2We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Sanchez. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).


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                           STATE v. SANCHEZ
                           Decision of the Court

marijuana. The officer also noted Sanchez was wearing a large black jacket
zipped to the top of his neck. Sanchez told the officer he did not own the
SUV, but he could not identify who did.

¶3              After running the SUV’s registration and license plate and
determining the SUV’s owner, the officers requested another police
department contact the owner to find out whether it had been stolen. For
their own safety while they waited to hear back from the other police
department, the officers asked Sanchez to step out of the SUV so they could
“pat [him] down,” that is, frisk him, for weapons. During the weapons
frisk, one of the officers discovered Sanchez was wearing a bulletproof vest.
The officers then became concerned Sanchez might be armed. They
handcuffed him and completed the frisk. One of the officers felt a large,
bulky, soft object concealed in Sanchez’s sock which he believed contained
narcotics. The officer lifted Sanchez’s pant leg and saw baggies containing
a green leafy substance the officer believed to be marijuana. He also found
one baggie containing a white crystal-like substance he believed to be
methamphetamine. The officers arrested Sanchez and placed him in the
backseat of their patrol car. The officer who conducted the frisk then
searched the SUV and found a loaded rifle, loaded magazines for the rifle,
a loaded revolver, a knife, and an expandable baton, all within reach of a
person sitting in the driver’s seat.

¶4             Before trial, Sanchez moved to suppress the drugs and all
items found in the SUV. At the suppression hearing, Sanchez conceded the
officers were justified in conducting a frisk for weapons; his only argument
was that the frisk exceeded a search for weapons when the officer lifted his
pant leg and removed the package from his sock. The officer testified,
however, that based on the circumstances and his experience, when he felt
the soft bulge in Sanchez’s sock, he was certain it was packaged contraband.
See State v. Watkins, 207 Ariz. 562, 568, ¶ 26, 88 P.3d 1174, 1180 (App. 2004)
(“Contraband may be seized if during a lawful frisk, the officer feels an
object he knows is contraband without the need to manipulate it.”). The
superior court denied the motion to suppress based on the totality of the
circumstances and the credibility of the officer’s testimony that in his 21
years of experience he “never found a bulge in somebody’s sock that has
not been packaged narcotics.” We see no error in the superior court’s ruling
on Sanchez’s motion to suppress. State v. Baggett, 232 Ariz. 424, 426, ¶ 7,
306 P.3d 81, 83 (App. 2013) (appellate court reviews a superior court’s
denial of motion to suppress for abuse of discretion and will “defer to the
[superior] court’s determinations of the credibility of the officers and the
reasonableness of the inferences they dr[a]w, but [will] consider the



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                           STATE v. SANCHEZ
                           Decision of the Court

[superior] court’s legal decisions de novo”) (citation omitted) (internal
quotation marks omitted).3

¶5             At trial, a Phoenix Police Department criminalist testified
each baggie contained either marijuana or methamphetamine. Certified
latent print examiners testified Sanchez’s left middle finger print was on the
revolver and his thumbprint matched the thumbprint on a certified
sentencing minute entry in a prior felony case. A superior court civil-rights
restoration clerk testified the superior court had not entered an order
restoring Sanchez’s right to possess weapons in that prior felony case. The
jury found Sanchez guilty on all counts.

¶6             At the sentencing hearing, Sanchez admitted to having two
historical prior felony convictions and also avowed in a plea agreement
accepted by the court in an unrelated matter to having two other prior
felony convictions. The superior court sentenced him as a category 3
repetitive offender to the presumptive term of 10 years for counts one,
three, four, and five, and the presumptive term of 3.75 years for count two;
all sentences to be served concurrently. See A.R.S. § 13-703(C), (J) (Supp.
2014). The court correctly calculated and awarded Sanchez 490 days of
presentence incarceration credit.

                               DISCUSSION

¶7           We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Sanchez received a




              3Although   the police handcuffed, arrested, and placed
Sanchez in the backseat of their patrol car before searching the SUV,
Sanchez did not separately challenge their search of the SUV under Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (subject to
certain exceptions, search incident to arrest exception to warrant
requirement does not apply to search of defendant’s vehicle when
defendant secured in patrol car and could not reasonably access vehicle).
The record as developed by the parties at the suppression hearing does not
allow us to evaluate the validity of the search of the SUV under Gant. If
Sanchez believes the search of the SUV was invalid, nothing in this decision
should be construed as precluding him from seeking post-conviction relief
based on a claim of ineffective assistance of counsel. See Ariz. R. Crim. P.
32.



                                      4
                           STATE v. SANCHEZ
                           Decision of the Court

fair trial. He was represented by counsel at all stages of the proceedings
and was present at all critical stages.

¶8            The evidence presented at trial was substantial and supports
the verdicts. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charges, Sanchez’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report, Sanchez was given an opportunity to speak at
sentencing, and he did so. His sentences were within the range of
acceptable sentences for his offenses.

¶9             In our review of the record, we discovered errors in the
superior court’s sentencing minute entry. First, the minute entry
incorrectly references “A.R.S. § 13-3102” under “Count 5 MISCONDUCT
INVOLVING BODY ARMOR.” The correct statute for misconduct
involving body armor is A.R.S. § 13-3116, and thus we correct the minute
entry to reflect the same. Second, the minute entry describes Sanchez’s
convictions as “non-repetitive,” and lists “A.R.S. 13-702,” the “First time
felony offenders” statute under each offense. The record is abundantly
clear, however, the superior court intended to, and did, sentence Sanchez
as a category 3 repetitive offender. Not only did the superior court find at
sentencing that Sanchez had two historical prior felony offenses, but
Sanchez avowed he had two other prior felony convictions. Also, the term
of each sentence the court imposed matched the appropriate term under the
repetitive offender statute, A.R.S. § 13-703. Thus we correct the sentencing
minute entry to replace each reference to “A.R.S. § 13-702” with “A.R.S. §
13-703” and to describe each conviction as “repetitive.”




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                           STATE v. SANCHEZ
                           Decision of the Court

                              CONCLUSION

¶10          We decline to order briefing and affirm Sanchez’s convictions
and sentences as corrected.

¶11           After the filing of this decision, defense counsel’s obligations
pertaining to Sanchez’s representation in this appeal have ended. Defense
counsel need do no more than inform Sanchez 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, 684 P.2d 154, 156-57
(1984).

¶12             Sanchez has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Sanchez 30 days from the date of this decision
to file an in propria persona motion for reconsideration.




                                  :ama




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