                          NOTICE: NOT FOR PUBLICATION.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.

                    MANUEL JOSE PELAYO, Appellant.

                             No. 1 CA-CR 14-0178
                               FILED 3-10-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-003199-001
                  The Honorable Jerry Bernstein, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant

Manuel Jose Pelayo, Appellant
                             STATE v. PELAYO
                            Decision of the Court



                      MEMORANDUM DECISION

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


G E M M I L L, Judge:

¶1             Manuel Jose Pelayo appeals his convictions and sentences for
two counts of aggravated driving under the influence (DUI), both class 4
felonies. Pelayo’s counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), stating that he has searched the record and found no arguable
question of law and requesting that this court examine the record for
reversible error. Pelayo was afforded the opportunity to file a pro se
supplemental brief and has done so. See State v. Clark, 196 Ariz. 530, 537, ¶
30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). With that standard in mind,
we note the following evidence was admitted at trial.

¶3            On February 2013, R.S. was in the area of 51st Avenue and
Northern, traveling northbound. A truck was traveling southbound
through the intersection when R.S. saw a white Dodge, traveling east, run
a red light and hit the white truck. R.S. testified that he saw a Hispanic
male, medium build, about five-nine or ten, get out of the driver’s door of
the white Dodge.

¶4             A Glendale Police Officer (Officer) arrived at the scene shortly
after the incident. R.S. identified Pelayo as the driver of the white Dodge.
Officer then approached Pelayo, noting that Pelayo was swaying and had
an odor of alcohol on him. Furthermore, Officer noticed that Pelayo’s eyes
were bloodshot and watery, and slurring his speech, consistent with
impairment.

¶5            Officer asked Pelayo what happened, and Pelayo responded
that he did not know and that he was not driving. Pelayo also told Officer


                                      2
                            STATE v. PELAYO
                           Decision of the Court

that the car belonged to his friend and handed Officer his Arizona
identification card from which Officer learned that Pelayo’s privilege to
drive had been revoked. This was confirmed by the deputy custodian of
records with the Motor Vehicle Division (MVD) who testified that Pelayo’s
driving privileges were revoked and suspended on the day of the accident.
The deputy custodian of records testified that Pelayo had been sent
multiple notices that his privilege to drive had been suspended or revoked.
There was evidence that multiple letters had been mailed to Pelyao’s most
current address on file with the MVD.

¶6            Pelayo refused to perform field sobriety tests and was placed
under arrest. Pelayo’s blood was drawn at 9:10 in the morning, within two
hours of the accident. Testing by the Arizona Department of Public Safety
Crime Lab in Phoenix found that the blood alcohol concentration of
Pelayo’s blood was 0.296, over three times the legal limit.

¶7            Pelayo was indicted on two counts of DUI, class 4 felonies.
Count 1 was for the offense of aggravated driving while under the
influence. This count requires that the defendant drove or was in actual
physical control of a vehicle “[w]hile under the influence of intoxicating
liquor” and impaired in the slightest degree. Arizona Revised Statutes
(“A.R.S”) § 28-1381(A)(1). Count 2 was for the offense of aggravated
driving while under the influence of intoxicating liquor with “an alcohol
concentration of 0.08 or more within two hours of driving[.]” A.R.S. § 28-
1381(A)(2). Both counts were alleged as aggravated because Pelayo had
driven or been in actual physical control of a vehicle “while the person’s
driver license or privilege to drive is suspended, canceled, revoked or
refused[.]” A.R.S. § 28-1383(A)(1).

¶8            After the evidence was presented, the jury found Pelayo
guilty on both counts. At a separate trial to determine prior felony
convictions, the evidence established Pelayo had committed DUI offenses
in 1999, 2000, and 2002. The court then imposed concurrent, presumptive
sentences of ten years on each count, with 369 days of presentence
incarceration credit.

                              DISCUSSION

¶9           In his supplemental brief, Pelayo asserts ineffective assistance
of counsel. But ineffective assistance of counsel claims must be brought
under Rule 32 post-conviction relief proceedings, in accordance with the
Arizona Rules of Criminal Procedure and the Arizona Supreme Court’s



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                             STATE v. PELAYO
                            Decision of the Court

holding in State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
Therefore, such claims will not be addressed in this direct appeal. Id.

¶10           Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find
none. The sentence imposed falls within the range permitted by law, and
the evidence presented supports the conviction. As far as the record
reveals, Pelayo was represented by counsel at all stages of the proceedings,
and these proceedings were conducted in compliance with his
constitutional and statutory rights and the Arizona Rules of Criminal
Procedure.

¶11           Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d
154, 156–57 (1984), counsel’s obligations in this appeal have ended. Counsel
need do no more than inform Pelayo of the disposition of the appeal and
his future options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. Pelayo
has thirty days from the date of this decision in which to proceed, if he
desires, with a pro se motion for reconsideration or petition for review.

                               CONCLUSION

¶12           The conviction and sentence are affirmed.




                                   :ama




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