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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  THOMAS NILES PRUITT, JR., Appellant.

                             No. 1 CA-CR 19-0373
                               FILED 2-20-2020


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201600617
              The Honorable John David Napper, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
                             STATE v. PRUITT
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge David D. Weinzweig and Judge David B. Gass joined.


H O W E, Judge:

¶1              This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Thomas
Pruitt, Jr. has advised this Court that he has found no arguable questions of
law and asks us to search the record for fundamental error. Pruitt was
convicted of possession of a dangerous drug for sale, possession of drug
paraphernalia, and two counts of driving while under the influence. Pruitt
has filed a supplemental brief in propria persona, which the Court has
considered. After reviewing the record, we affirm Pruitt’s convictions and
sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Pruitt. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). In April 2016, Officer Nathaniel
Camacho was monitoring traffic traveling East on the I-40 freeway in
Yavapai County when he saw a car with windows tinted darker than the
legal limit. Officer Camacho followed the car for a couple of miles, noticed
the car weaving, and pulled the car over.

¶3           Because of Pruitt’s driving, Officer Camacho asked Pruitt to
perform standard field sobriety tests. During these tests, Pruitt showed
multiple signs of impairment. Pruitt was then arrested on suspicion of DUI
and Officer Camacho, along with another officer who arrived on scene,
performed an inventory search of Pruitt’s car. During the search, they
found an eyeglass case with two baggies that contained a total of about 52
grams of methamphetamine. They found another baggie with 11 grams of
methamphetamine in the car’s rear cupholder. The officers also found a
methamphetamine pipe and a small bag with less than a gram of
methamphetamine in the front of the car.

¶4           Pruitt was transported to the police department where he
provided a blood sample that was sent to the Department of Public Safety



                                       2
                             STATE v. PRUITT
                            Decision of the Court

(“DPS”) crime laboratory. The methamphetamine that was found in Pruitt’s
car was also sent to the crime laboratory to be tested. The DPS crime lab
confirmed through the blood sample that Pruitt had methamphetamine and
amphetamine in his system and confirmed that the substance found in his
car was methamphetamine.

¶5            The State charged Pruitt with the sale or transportation of a
dangerous drug, possession of a dangerous drug, possession of marijuana,
possession of drug paraphernalia for methamphetamine, possession of
drug paraphernalia for marijuana, and two counts of DUI. At trial, the State
dismissed the possession of a dangerous drug, possession of marijuana, and
possession of drug paraphernalia for marijuana charges.

¶6            At trial, Officer Camacho testified that a person could possess
63 grams of methamphetamine for personal use, but that he had never
encountered anyone with that much methamphetamine who was just a
user. The State’s expert witness, Sergeant Jarrod Winfrey, testified that 63
grams was a large quantity that would be considered a four-month supply
for regular methamphetamine users and a two-month supply for an
extremely heavy methamphetamine user. He further testified that he does
not usually see methamphetamine users carrying this quantity of
methamphetamine. After a two-day jury trial, Pruitt was found guilty of
possession of a dangerous drug for sale, possession of drug paraphernalia,
and two counts of DUI.

¶7            The trial court conducted the sentencing hearing in
compliance with Pruitt’s constitutional rights and Arizona Rule of Criminal
Procedure 26. The trial court considered Pruitt’s remorse, family support,
and lack of prior felony convictions as mitigating factors. The trial court
gave little weight to Pruitt’s lack of prior felony convictions because he was
convicted of several misdemeanor offenses while the case was pending.
Pruitt was sentenced to a mitigated term of 7 years’ imprisonment for the
sale or transportation of a dangerous drug, a mitigated term of 6 months’
imprisonment for possession or use of drug paraphernalia, and 88 days’ jail
for both DUI offenses with 88 days’ presentence incarceration credit.

                               DISCUSSION

¶8            We review Pruitt’s convictions and sentences for fundamental
error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011). Counsel for
Pruitt has advised this Court that after a diligent search of the entire record,
he has found no arguable question of law.




                                       3
                             STATE v. PRUITT
                            Decision of the Court

¶9             Pruitt argues that his right to a speedy trial was violated and
that the State was the cause of the delay. A defendant who is out-of-custody
must be tried within 180 days after arraignment. Ariz. R. Crim. P. 8.2(a)(2).
Delays caused by or on behalf of the defendant, as well as continuances
granted under Rule 8.5 are excluded from the time computation set forth in
Rule 8.2. Ariz. R. Crim. P. 8.4(a)(1) & (5). Pruitt posted bond the day after
he was arraigned, giving the State 180 days to try him. See Ariz. R. Crim. P.
8.2(a)(2). The record shows that Pruitt moved to continue the case on
several occasions and waived time when the trial was rescheduled. After
reviewing the record, Pruitt was tried within the required 180 days,
excluding the time he waived. Therefore, his right to a speedy trial was not
violated.

¶10           Pruitt argues next that one of the jury members was selected
as an alternate when he or she should have been included in jury
deliberations. The record contains no evidence that an alternate juror was
supposed to be included in jury deliberations. The record shows that jurors
8 and 9 were selected as alternates and that jurors 1, 2, 3, 4, 5, 6, 7, and 10
were the jurors who deliberated and returned the verdicts. Thus, Pruitt has
not shown that any error occurred.

¶11            Pruitt also argues that because Officer Camacho testified that
a person could possess 63 grams of methamphetamine for personal use, a
jury could not find him guilty of possession of methamphetamine for sale
beyond a reasonable doubt. This Court will uphold a conviction if
substantial evidence exists to support the jury verdict. State v. Payne, 233
Ariz. 484, 507 ¶ 76 (2013). “Substantial evidence is proof, viewed in the light
most favorable to sustaining the verdict, that would allow reasonable
persons to find a defendant guilty beyond a reasonable doubt.” Id.

¶12           Substantial evidence exists to support the jury verdict. While
Officer Camacho did testify that someone could have possessed 63 grams
of methamphetamine for personal use, he also testified that he had never
encountered anyone with that much methamphetamine who was just a
user. Sergeant Winfrey testified that 63 grams was a large quantity that
would be considered a four-month supply for a regular methamphetamine
user and a two-month supply for an extremely heavy methamphetamine
user. He further testified that he does not usually see methamphetamine
users carrying this quantity of methamphetamine. Given these facts,
substantial evidence existed for which a reasonable person could find Pruitt
guilty beyond a reasonable doubt for transporting methamphetamine for
sale.



                                      4
                              STATE v. PRUITT
                             Decision of the Court

¶13            Pruitt also argues that he was punished for exercising his
right to trial because he was sentenced to two more years than what was
offered during plea negotiations. A presumption of unconstitutional
vindictiveness applies when a reasonable likelihood exists that the increase
in sentence is the product of actual vindictiveness on the part of the
sentencing authority. State v. Gutierrez, 240 Ariz. 460, 468 ¶ 30 (App. 2016).
“[T]he mere imposition of a greater sentence after trial than offered in
exchange for a pretrial plea ‘is not more likely than not attributable to the
vindictiveness on the part of the sentencing judge.’” Id. (quoting German v.
U.S., 525 A.2d 596, 603 (D.C. App. 1987). The record contains no support for
Pruitt’s argument. The trial judge was different than the settlement judge
and the trial judge made no comments at sentencing that would indicate he
was punishing Pruitt for exercising his right to trial. The mere fact that
Pruitt’s sentence was two years more than the sentence offered during plea
negotiations does not rise to the level of judicial vindictiveness. Therefore,
Pruitt’s argument fails.

¶14            Pruitt further argues that the trial court should not have
considered his misdemeanor convictions when deciding what weight to
give to his mitigating evidence of lack of felony convictions. The trial court
can consider the presentence report, including prior misdemeanor
convictions when determining the weight to give to the mitigating evidence
of lack of a felony conviction. State v. Scott, 177 Ariz. 131, 145 (1993). The
presentence report indicated that Pruitt had 11 misdemeanor convictions,
six of which were acquired after he was arrested in this case. The trial court
properly referred to these misdemeanor convictions when deciding how
much weight to give Pruitt’s mitigation for having no prior felony
convictions. Therefore, no error occurred.

¶15             Pruitt argues last that he received ineffective assistance of
counsel because his case did not have his attorney’s full attention and his
attorney’s “plate was full.” This Court, however, will not address an
ineffective assistance of counsel claim on direct appeal. State v. Spreitz, 202
Ariz. 1, 3 ¶ 9 (2002). Ineffective assistance of counsel claims should be raised
in a petition for post-conviction relief. State v. Glassel, 233 Ariz. 353, 354 ¶ 8
(2013).

¶16           We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All the proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure. So far as the record reveals, counsel
represented Pruitt at all stages of the proceedings, and the sentences



                                        5
                             STATE v. PRUITT
                            Decision of the Court

imposed were within the statutory guidelines. We decline to order briefing
and affirm Pruitt’s convictions and sentences.

¶17            Upon the filing of this decision, defense counsel shall inform
Pruitt of the status of the appeal and of his future options. Counsel has no
further obligations 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 (1984). Pruitt shall have 30 days from
the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA




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