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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     DAVID JOSEPH MISKO, Appellant.

                             No. 1 CA-CR 14-0533
                               FILED 7-23-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-458064-001
           The Honorable Robert L. Gottsfield, Judge (Retired)

                       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 Christopher V. Johns
Counsel for Appellant
                             STATE v. MISKO
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.


N O R R I S, Judge:

¶1            Appellant David Joseph Misko timely appeals from his
convictions and sentences for one count of possession or use of dangerous
drugs (methamphetamine), a class 4 felony, in violation of Arizona Revised
Statutes (“A.R.S.”) section 13-3407 (Supp. 2014),1 and two counts of
possession of drug paraphernalia, each a class 6 felony, in violation of
A.R.S. § 13-3415 (2010). After searching the record on appeal and finding
no arguable question of law that was not frivolous, Misko’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 Misko to file a supplemental brief in
propria persona, but he did not do so. After reviewing the entire record, we
find no fundamental error and, therefore, affirm Misko’s convictions and
sentences as corrected.

             FACTS AND PROCEDURAL BACKGROUND2

¶2             On December 5, 2013, police officers searched Misko’s hotel
room.      The officers found a backpack containing 1.2 grams of
methamphetamine, several syringes, a straw, pieces of cotton, and an
electronic scale of the kind commonly used for weighing drugs. The
officers arrested Misko, who was in the room during their search.




              1Although    the Arizona Legislature amended certain statutes
cited in this decision after Misko’s offenses, 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 Misko. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).



                                      2
                              STATE v. MISKO
                             Decision of the Court
¶3           At trial, the officers testified that although Misko told them
the backpack was not his and he did not know how “it got to the room,”
they verified the room was registered to Misko and it appeared to be
occupied by only one person. The police also found prescription pill bottles
with Misko’s name on them in the room.

¶4             The jury found Misko guilty on all charges. At the subsequent
aggravation hearing, the jury found Misko had a prior felony conviction
within the past ten years, and was on probation at the time of his arrest.
The court sentenced Misko as a category two repetitive offender to the
presumptive term of 4.5 years’ imprisonment for possession or use of
dangerous drugs (methamphetamine) and to the presumptive term of 1.75
years’ imprisonment on each count of possession of drug paraphernalia
with all sentences to run concurrently. See A.R.S. § 13-703 (B), (I) (Supp.
2014). The court awarded Misko 44 days of presentence incarceration credit
on all counts.

                                DISCUSSION

¶5          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Misko received a fair
          3



              3In   closing argument the prosecutor stated:

              Now, let’s look at some of the inconsistencies. I
              want to draw your attention to them as far as
              the Defendant. Now, the State understands the
              Defendant did not take the stand. It’s the State’s
              burden in order to prove this. However, during
              the testimony you heard of some of the
              inconsistencies during the actual interview of
              the Defendant, as well as the entire time he was
              in the room.

While the prosecutor may have only intended to point out the weaknesses
in Misko’s case, his statement pointed to Misko’s decision not to testify and,
thus, was improper. See State v. Hughes, 193 Ariz. 72, 87, ¶ 64, 969 P.2d 1184,
1199 (1998). Misko did not object to the statement and thus we review for
fundamental error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d
601, 608 (2005). Although improper, this single comment did not
“permeate[] the entire atmosphere of the trial” with unfairness. See State v.
Gallardo, 225 Ariz. 560, 568, ¶¶ 34–35, 242 P.3d 159, 167 (2010) (to reverse a
conviction, “defendant must show that the offending statements were so



                                       3
                            STATE v. MISKO
                           Decision of the Court
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.

¶6            The evidence presented at trial was substantial and supports
the verdicts. The jury was properly comprised of eight members and the
court properly instructed the jury on the elements of the charges, Misko’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, Misko was given an opportunity to speak at sentencing,
and his sentences were within the range of acceptable sentences for his
offenses.

¶7             In our review of the record, we discovered an error in the
superior court’s sentencing minute entry. The minute entry describes
Misko’s convictions as “repetitive” but lists A.R.S. § 13-702—the sentencing
statue for first time felony offenders—for each offense. See A.R.S. § 13-702
(Supp. 2014). As noted above, the jury found Misko had a prior felony
conviction and the superior court sentenced him as a class two repetitive
offender. Thus, we correct the sentencing minute entry to remove the
citations to A.R.S. § 13-702.

                              CONCLUSION

¶8           We decline to order briefing and affirm Misko’s convictions
and sentences as corrected.

¶9           After the filing of this decision, defense counsel’s obligations
pertaining to Misko’s representation in this appeal have ended. Defense
counsel need do no more than inform Misko of the outcome of this appeal
and his future options, unless, upon review, counsel finds an issue


pronounced and persistent that they permeated the entire atmosphere of
the trial and so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” (citations omitted) (internal quotation
marks omitted)). Indeed, in light of the overwhelming evidence of guilt,
we cannot say the comment was harmful or that it contributed to the jury’s
verdict. See State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997)
(impermissible comment on defendant’s failure to testify was error, but
harmless in light of overwhelming evidence of guilt); State v. Ramos, 235
Ariz. 230, 236, ¶¶ 17–18, 330 P.3d 987, 993 (App. 2014) (defendant fails to
meet burden of establishing prejudice from impermissible comment if
overwhelming evidence of guilt exists in record).




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                            STATE v. MISKO
                           Decision of the Court
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).

¶10            Misko 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 Misko 30 days from the date of this decision to file an
in propria persona motion for reconsideration.




                                    :ama




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