                          NOTICE: NOT FOR PUBLICATION.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.

                 PAUL THOMAS VALDESPINO, Appellant.

                             No. 1 CA-CR 12-0724
                              FILED 02/25/2014


            Appeal from the Superior Court in Maricopa County
                         No. CR 2011-149258-001
                  The Honorable M. Scott McCoy, Judge

                        AFFIRMED AS CORRECTED


                                   COUNSEL

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

Counsel for Appellee

Paul Thomas Valdespino

Appellant

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn

Counsel for Appellant
                          STATE v. VALDESPINO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Chief Judge Diane M. Johnsen joined.


N O R R I S, Judge:

¶1             Paul Thomas Valdespino timely appeals from his conviction
and sentence for misconduct involving weapons for “[p]ossessing a
deadly weapon or prohibited weapon if such person is a prohibited
possessor.” See Arizona Revised Statutes (“A.R.S.”) § 13-3102(A)(4) (Supp.
2013). 1 After searching the record on appeal and finding no arguable
question of law that was not frivolous, Valdespino’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 Valdespino to file a supplemental brief
in propria persona, and, after multiple extensions for filing, he did so. After
considering Valdespino’s arguments and reviewing the entire record, we
find no reversible or fundamental error and, therefore, affirm
Valdespino’s conviction and sentence as corrected.

             FACTS AND PROCEDURAL BACKGROUND 2

¶2            On September 20, 2011, two police officers were
investigating what appeared to be suspicious activity at an art gallery
where Valdespino worked. One of the officers encountered Valdespino
and asked him if he was armed, and Valdespino said he was. The officer
ordered Valdespino to put his hands on his head and then removed a .25
caliber semi-automatic handgun with six live rounds of ammunition from


              1Although   the Arizona Legislature amended this statute
after the date of Valdespino’s offense, the revisions are immaterial. Thus,
we cite to the current version of the statute.

              2We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Valdespino.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citation
omitted).



                                      2
                         STATE v. VALDESPINO
                          Decision of the Court

Valdespino’s right cargo pocket. The officer asked Valdespino if he was a
prohibited possessor, and Valdespino confirmed he was.

¶3            At trial, Valdespino testified he found the gun outside of the
gallery and offered a necessity defense as to why he had possessed the
gun.    He said he only picked it up because of children in the
neighborhood, his safety, and the safety of others. He further testified that
he was on his way to put the gun in a drawer and ask the owner of the
gallery what the owner wanted to do with it when the police arrived.

¶4            Valdespino stipulated he was a convicted felon and
prohibited possessor as of September 20, 2011. The superior court
instructed the jury as follows: “The lawyers are permitted to stipulate that
certain facts exist. This means that both sides agree those facts do exist
and are part of the evidence.” The jury found Valdespino guilty of
misconduct involving weapons. The superior court found he had been
convicted of four prior felonies and sentenced him as a category three
offender to an aggravated term of 12 years imprisonment. See A.R.S.
§§ 13-701, -703(C), -703(J) (Supp. 2013).

                               DISCUSSION

I.     Supplemental Brief

¶5            Valdespino essentially argues on appeal that he received
ineffective assistance of counsel because his counsel failed to file a motion
to suppress and obtained unnecessary continuances, thereby depriving
him of his speedy trial right. This argument, however, is not properly
before us on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d
525, 527 (2002) (ineffective assistance of counsel claims to be brought in
Rule 32 proceedings and will not be addressed on direct appeal).

¶6            Valdespino also argues the superior court should have
allowed him to represent himself when he moved to do so. We disagree.
The record reflects Valdespino only asked to represent himself because he
was dissatisfied with his then-current counsel and could not afford to hire
new counsel. At a status conference, Valdespino asked the court to
appoint new counsel, and the court did after confirming he was indigent.




                                      3
                         STATE v. VALDESPINO
                          Decision of the Court

Accordingly, the record actually reflects Valdespino withdrew his request
to represent himself. 3

¶7            Valdespino also argues the superior court abused its
discretion by allowing the State to impeach him with his 2001 felony
conviction for misconduct involving weapons. 4 We disagree. The
superior court advised it would allow admission of the 2001 felony
conviction under Rule 404(b) of the Arizona Rules of Evidence if
Valdespino testified at trial and offered a necessity defense because the
circumstances were “similar enough” to establish a “plan or modus of
operation” and Valdespino’s justification for the prior offense had
“substantial similarities” to his current offense. The superior court’s
characterization of the 2001 felony is amply supported by the record.
Furthermore, the court gave the jury limiting instructions as to
Valdespino’s prior conviction and his “other acts.” Thus, the superior
court did not abuse its discretion in admitting Valdespino’s 2001 felony
conviction.

¶8              Valdespino next argues the State engaged in vindictive
prosecution after he rejected the State’s plea offer and exercised his right
to trial by jury. As support for this argument, he asserts the State
improperly requested the court to issue warrants for his arrest. The
record contains no evidence of vindictive prosecution, and further, the
court issued bench warrants for Valdespino’s arrest because he was either
late or failed to appear at multiple hearings.

¶9           Valdespino further argues the State improperly introduced
into evidence his out-of-court statements at the time of arrest because the
police did not have probable cause to be on the property. We disagree.
As discussed, supra ¶ 2, the police were investigating what appeared to be
suspicious activity and therefore had probable cause to be on the
property.




             3Valdespinoalso argues he did not knowingly waive his
right to counsel. Valdespino was, however, represented by counsel
throughout the case.

             4Valdespinosimilarly argues the State’s introduction of his
2001 felony conviction amounted to prosecutorial misconduct. This
argument is frivolous.



                                     4
                          STATE v. VALDESPINO
                           Decision of the Court

¶10           Finally, Valdespino argues the State improperly sought an
enhanced sentence and the superior court imposed a sentence
disproportionate to his crime in violation of the Eighth Amendment.
Valdespino’s sentence, however, was within the range of acceptable
sentences for his offense. See A.R.S. § 13-703(J).

II.    Additional Matters

¶11            First, in closing argument, the prosecutor stated, “I’ll flat out
tell you, the Defendant is a liar.” Although counsel is given wide latitude
in closing arguments, State v. Hill, 174 Ariz. 313, 322, 848 P.2d 1375, 1384
(1993) (citations omitted), he must not convey personal belief about the
credibility of a witness. State v. Lamar, 205 Ariz. 431, 441, ¶ 54, 72 P.3d 831,
841 (2003). Here, the prosecutor’s use of a personal pronoun might be
interpreted by the jury as expressing his personal belief about
Valdespino’s credibility. The prosecutor’s comment was an isolated
event, and the court properly instructed the jury that counsel’s arguments
were not evidence. Under these circumstances, the prosecutor’s comment
did not amount to reversible error. See id.

¶12            Second, as discussed, supra ¶ 4, Valdespino stipulated that as
of the date of the incident, he was a convicted felon and a prohibited
possessor -- required elements of the offense with which he was charged.
See A.R.S. § 13-3101(A)(7)(b) (Supp. 2013); see also A.R.S. § 13-3102(A)(4).
The superior court did not instruct the jury, however, that it could reject
the stipulation. See State v. Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247
(2009) (citation omitted); see also Rev. Ariz. Jury Instr. Stand. Crim. 3.
Even so, Valdespino was not prejudiced by this because he acknowledged
his prior felonies when he testified at trial.

¶13           Third, as defense counsel points out, the record contains two
errors. First, after the superior court conducted a trial on the State’s
allegation of historical priors, it found Valdespino had been convicted of
four prior felonies. The minute entry, however, erroneously reflects five
case numbers. We therefore correct the October 24, 2012 minute entry to
delete the reference to CR2009-122982. Second, the sentencing minute
entry states Valdespino was sentenced as a non-repetitive offender, which
conflicts with its earlier finding that Valdespino’s four prior felony
convictions made him a category three offender. 5 The record resolves this


              5A category three offender is an offender who has been
convicted of two or more historical prior felonies. A.R.S. § 13-703(C).



                                       5
                         STATE v. VALDESPINO
                          Decision of the Court

discrepancy, and we therefore correct the November 2, 2012 minute entry
to reflect Valdespino was sentenced as a repetitive offender, rather than a
non-repetitive offender.

¶14           Fourth, we also note that at the sentencing hearing, the
superior court did not pronounce judgment of the court and the category
of the offense as required by Arizona Rule of Criminal Procedure 26.10(a).
As defense counsel points out, however, technical violations of this rule
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 Valdespino was not prejudiced by the error. Thus,
resentencing is not necessary. See id.

¶15          Finally, the superior court should not have ordered
Valdespino to pay for DNA testing. See State v. Reyes, 232 Ariz. 468, 472,
¶ 14, 307 P.3d 35, 39 (App. 2013). We therefore also modify the
November 2, 2012 minute entry to omit the requirement that Valdespino
pay for DNA testing.

III.   Anders Review

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

¶17          The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of eight members, and the
court properly instructed the jury on the elements of the charge,
Valdespino’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, and Valdespino was given an
opportunity to speak at sentencing.

                              CONCLUSION

¶18          We decline to order briefing and affirm Valdespino’s
conviction and sentence as corrected.

¶19           After the filing of this decision, defense counsel’s obligations
pertaining to Valdespino’s representation in this appeal have ended.
Defense counsel need do no more than inform Valdespino 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


                                      6
                         STATE v. VALDESPINO
                          Decision of the Court

petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).

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




                                  :gsh




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