                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee

                                        v.

                        STANLEY YAZZIE, Appellant.

                             No. 1 CA-CR 13-0830

                                  FILED 9-9-14

           Appeal from the Superior Court in Coconino County
                        No. S0300CR201300155
                 The Honorable Mark R. Moran, Judge

                       AFFIRMED AS CORRECTED


                                   COUNSEL

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

Suzuki Law Office LLC, Phoenix
By Richard J. Suzuki, Brad D. Smith, Matthew Bartz, David E. Ahl
Counsel for Appellant

Stanley Yazzie, Douglas
Appellant
                            STATE v. YAZZIE
                           Decision of the Court



                      MEMORANDUM DECISION

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


N O R R I S, Judge:

¶1              Stanley Yazzie timely appeals from his convictions and
sentences for aggravated assault, Arizona Revised Statutes (“A.R.S.”)
section 13-1204 (Supp. 2013),1 failure to remain at the scene of an automobile
accident resulting in injury, A.R.S. § 28-661 (Supp. 2013), unlawful flight
from a law enforcement vehicle, A.R.S. § 28-622.01 (2012), criminal damage,
A.R.S. § 13-1602 (Supp. 2013), driving while under the influence of
intoxicating liquor (“DUI”), A.R.S. § 28-1381 (Supp. 2013), and extreme
DUI, A.R.S. § 28-1382 (2012). After searching the record on appeal and
finding no arguable question of law that was not frivolous, Yazzie’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), asking this court to search
the record for fundamental error. This court granted counsel’s motion to
allow Yazzie to file a supplemental brief in propria persona, and Yazzie did
so. We reject the arguments raised in Yazzie’s supplemental brief and, after
reviewing the entire record, find no fundamental error. Therefore, we
affirm Yazzie’s convictions. We also affirm his sentences as corrected to
eliminate a discrepancy between the sentencing minute entry and the
superior court’s oral pronouncement of sentence.

             FACTS AND PROCEDURAL BACKGROUND2

¶2           On February 19, 2013, Yazzie was returning to his home in
Phoenix after spending some time working in Albuquerque and Gallup,
New Mexico. Driving west along I-40, Yazzie drank between four and

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


                                      2
                             STATE v. YAZZIE
                            Decision of the Court

twenty-four cans of beer, including 16-ounce and 24-ounce cans. Officer L.
of the Department of Public Safety (“DPS”) was on duty that day, near
Flagstaff. Around 12:45 p.m. Officer L. backed into a closed rest area to
complete paperwork. A gate blocked the westbound entrance to the rest
area. Officer L. left his vehicle running with the headlights and taillights
on.

¶3             Between 12:45 and 12:49 p.m., Yazzie drove off the interstate,
through the gate and into the rest area where he rear-ended Officer L.’s
clearly marked patrol vehicle. Officer L. suffered whiplash and later
developed numbness in his arms and hands as a result of the collision.
Officer L.’s patrol vehicle sustained over $1,900 in damage.

¶4             Officer L. saw Yazzie’s heavily damaged sedan in the mirror,
but before he could assess the situation, Yazzie drove off, re-entering I-40
westbound. Officer L. engaged his lights and sirens and gave chase. Yazzie
swerved between lanes before exiting onto Cosnino Road. Yazzie struck a
concrete barrier on the exit ramp but continued to flee, running a stop sign
and driving north in a southbound lane until a crossing train forced him to
pull over and slow down. As Yazzie slowed to a roll, Officer L. exited his
vehicle and asked Yazzie to open the door. Initially Yazzie did not respond,
he stared ahead blankly as his car rolled down the road. When Officer L.
raised his handcuffs to break the window, Yazzie finally opened the door.
Officer L. reached into the sedan to shift it to “park” and noticed an open
can of beer in the center console. Two more alcoholic beverages were in the
passenger seat, and Yazzie smelled of alcohol.

¶5             In response to Officer L.’s initial questioning, Yazzie admitted
to drinking, hitting Officer L.’s vehicle, and being aware that Officer L. had
pursued him.3 In subsequent field sobriety tests, Yazzie showed signs of
severe impairment. At the conclusion of the field sobriety tests, a DPS
officer arrested Yazzie, read him his Miranda rights, and transported him to
the Coconino County Jail in Flagstaff. Yazzie consented to a breath test and
officers obtained a search warrant for a blood draw. Breath tests conducted


              3The  superior court did not abuse its discretion in admitting
Yazzie’s answers to Officer L.’s investigatory questions over Yazzie’s
Miranda objection. Even assuming, however, that the superior court
improperly admitted these statements, in light of the overwhelming
evidence against Yazzie, we are confident “beyond a reasonable doubt, that
the error did not contribute to or affect the verdict.” State v. Bible, 175 Ariz.
549, 588, 858 P.2d 1152, 1191 (1993).


                                       3
                             STATE v. YAZZIE
                            Decision of the Court

at 2:09 and 2:16 p.m. showed Yazzie’s blood alcohol concentration (“BAC”)
to be .271 and .262 within two hours of when Yazzie last drove. See A.R.S.
§§ 28-1381(A)(2), 1382(A). Analysis of Yazzie’s blood, drawn at 2:51 p.m.,
showed his BAC to be above .280.

¶6             At trial, Officer L., two other DPS officers, a physician who
examined Officer L., and a DPS criminologist testified, and their testimony
detailed the events described above. After the State and the defense rested,
Yazzie agreed to forgo a Blakely hearing and stipulated to three aggravating
factors in exchange for the State’s withdrawal of two of five alleged
aggravating factors: “Infliction or threatened infliction of serious physical
injury,” A.R.S. § 13-701(D)(1) (Supp. 2013), and “[a]ny other factor that the
state alleges is relevant to the defendant’s character or background or to the
nature or circumstances of the crime.” A.R.S. § 13-701(D)(25). Accordingly,
the State did not raise either of these aggravators in its sentencing
memorandum. At the sentencing hearing, however, the superior court
found that Yazzie “threatened the infliction of serious physical injury
during the commission of the offense” as one of four aggravators. The
superior court also found four mitigating factors.

¶7             At the sentencing hearing, the State proved Yazzie had two
historical prior felony convictions and was subject to enhanced sentences.
See A.R.S. § 13-703(C), (J) (Supp. 2013). The superior court imposed a
presumptive sentence of 11.25 years for aggravated assault, a class 3
dangerous and repetitive felony;4 a presumptive sentence of five years,
consecutive to the sentence for aggravated assault, for leaving the scene of
an accident resulting in injury, a class 5 non-dangerous and repetitive
felony; a presumptive sentence of five years to run concurrently for
unlawful flight from a law enforcement vehicle, a class 5 non-dangerous
and repetitive felony; a presumptive sentence of 3.75 years to run
concurrently for criminal damage, a class 6 non-dangerous and repetitive
felony; and time served for extreme DUI, a class 1 misdemeanor. See A.R.S.



              4The jury determined Yazzie’s aggravated assault charge was
a dangerous offense. Accordingly, the superior court designated his
aggravated assault conviction as dangerous, although Yazzie was
sentenced as a repeat offender. See State v. Trujillo, 227 Ariz. 314, 322, ¶ 37,
257 P.3d 1194, 1202 (App. 2011) (“[T]he law allows a trial court to select
between the dangerous and repetitive sentencing options, but does not
require that if the court chooses to sentence a defendant as a repeat
offender, it must void the jury’s finding of dangerousness.”).


                                       4
                             STATE v. YAZZIE
                            Decision of the Court

§§ 13-105(22) (Supp. 2013), -703(C), (J). In the sentencing minute entry, the
court also sentenced Yazzie to time served for DUI, a class 1 misdemeanor.

                               DISCUSSION

I.     Supplemental Brief

¶8             Yazzie argues that, in light of his stipulation with the State,
the superior court abused its discretion in considering “infliction or
threatened infliction of serious physical injury” for sentencing purposes.
Because Yazzie did not object at the sentencing hearing, however, we
review only for fundamental error. State v. Soliz, 223 Ariz. 116, 119, ¶ 11,
219 P.3d 1045, 1048 (2009). And, thus we will provide appellate relief only
if the “error [is] of such magnitude that the defendant could not possibly
have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115
P.3d 601, 607 (2005). There is no such error here.

¶9             While, pursuant to the parties’ stipulation, the superior court
should not have considered the threat of serious injury inherent in Yazzie’s
actions as an ‘aggravator’ within the framework of A.R.S. § 13-701, the
superior court may properly consider “the circumstances of the offense” in
exercising its sentencing discretion. State v. Myers, 117 Ariz. 79, 90, 570 P.2d
1252, 1263 (1977); see also State v. Johnson, 210 Ariz. 438, 441, ¶ 12, 111 P.3d
1038, 1041 (App. 2005) (“[T]he Supreme Court has . . . repeatedly
emphasized . . . that trial courts may freely consider other sentencing factors
not found by a jury in choosing a specific punishment that does not exceed
the statutory maximum . . . .”). Furthermore, the possibility Yazzie might
have received a lesser sentence in the absence of a particular aggravator
does not warrant resentencing. See State v. Miranda-Cabrera, 209 Ariz. 220,
227, ¶¶ 30-33, 99 P.3d 35, 42 (App. 2004) (“We need not remand for
resentencing merely because [defendant’s] mitigated sentence might have
been for a shorter period had the trial court not set off [judge-found]
aggravating factors against the mitigating factors in imposing the mitigated
sentence.”).5

¶10          Yazzie also argues that the superior court violated his
stipulation with the State by considering his two prior convictions as an
aggravating factor under A.R.S. § 13-701(D)(25). To the contrary, the record

              5The Constitutional protections of Blakely v. Washington, 542
U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) are not
implicated here because Yazzie received only presumptive sentences. State
v. Brown, 209 Ariz. 200, 203, ¶ 12, 99 P.3d 15, 18 (2004).


                                       5
                            STATE v. YAZZIE
                           Decision of the Court

is clear the superior court properly considered Yazzie’s prior convictions
for sentence enhancement under A.R.S. § 13-703(C).

II.    Anders Review

¶11          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Yazzie received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.

¶12            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, Yazzie’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, Yazzie was given an opportunity to speak at sentencing
and did so, and his sentences were within the range of acceptable sentences
for his offenses.

¶13            We note, however, the superior court’s sentencing minute
entry erroneously classified Yazzie’s aggravated assault conviction as a
class 2 felony, although at the sentencing hearing the court properly
described Yazzie’s aggravated assault conviction as a class 3 felony. See
A.R.S. § 13-703(C), (J). We therefore amend the superior court’s sentencing
minute entry to reflect that the jury convicted Yazzie of aggravated assault,
a class 3 felony. See A.R.S. § 13-1204(D).

¶14          We also note that at the sentencing hearing, the superior court
did not pronounce the sentence for Yazzie’s DUI conviction as required by
Arizona Rule of Criminal Procedure 26.10(b). Technical violations of this
rule, however, do not necessarily require resentencing. State v. Maddasion,
24 Ariz. App. 492, 496, 539 P.2d 966, 970 (1975). In this case, the sentence
was supported by the record, and Yazzie was not prejudiced by the error.
Thus, resentencing is not necessary. See id.

                              CONCLUSION

¶15          We decline to order briefing and affirm Yazzie’s convictions
and sentences as corrected.

¶16           After the filing of this decision, defense counsel’s obligations
pertaining to Yazzie’s representation in this appeal have ended. Defense



                                      6
                            STATE v. YAZZIE
                           Decision of the Court

counsel need do no more than inform Yazzie 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

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




                                   :JT



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