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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   SEAN MONTE NUNNERY, Appellant.

                             No. 1 CA-CR 17-0669
                              1 CA-CR 17-0671
                              1 CA-CR 17-0672
                               (Consolidated)
                                FILED 8-13-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-163002-001
                          CR2012-102141-001
                          CR2015-151874-001
               The Honorable Virginia L. Richter, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                           STATE v. NUNNERY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Peter B. Swann joined.


H O W E, Judge:

¶1            This is a consolidated appeal under Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Sean
Monte Nunnery has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Nunnery was convicted of one count of sale or transportation of marijuana,
a class 3 non-dangerous felony. Nunnery was given an opportunity to file
a supplemental brief in propria persona; he has not done so. After
reviewing the record, we affirm Nunnery’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 Nunnery. See State
v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). In 2011 and 2012, Nunnery was
charged with possession of marijuana and possession of drug
paraphernalia. He pled guilty to possession of marijuana both times and
was placed on probation for two years.

¶3           A few years later, in October 2015, two Tempe Police
Department Detectives, Joseph Manchak and Lauren Wallace, were in a
Tempe coffee shop while working undercover. They sat at a table near
Nunnery and talked about purchasing marijuana and about a person with
the street name of “Stick man.” Shortly thereafter, Nunnery scolded the
undercover officers for speaking so loudly. After their interaction with
Nunnery, the detectives left the coffee shop.

¶4          The next day, the detectives crossed paths with Nunnery
while walking in the area of the coffee shop. Nunnery asked the detectives
whether they “had found what [they] were looking for.” After Detective
Manchak answered “no,” Nunnery motioned the detectives to follow him.

¶5           Nunnery led the undercover detectives to another area, where
they discussed purchasing marijuana. Detective Manchak told Nunnery he
wanted “$20 worth,” but Nunnery insisted that he could give him a “better


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                           STATE v. NUNNERY
                           Decision of the Court

deal” if he purchased more. After a while, Detective Manchak and Nunnery
settled on $40 in exchange for 1.16 grams of marijuana. Detective Manchak
put the $40 in Nunnery’s backpack and Nunnery handed Detective
Manchak the marijuana. After the deal was complete, the detectives and
Nunnery went their separate ways and shortly thereafter another patrol
officer arrested Nunnery.

¶6            The State charged Nunnery with one count of sale or
transportation of marijuana, a class 3 non-dangerous felony. Although the
trial court informed Nunnery that he must attend his trial, he did not
attend. The court consequently issued a bench warrant for Nunnery’s arrest
and proceeded without him. At trial, both parties stipulated that Nunnery
knowingly sold an amount of marijuana having a weight of less than two
pounds on October 27, 2015. Defense counsel also raised the affirmative
defense of entrapment.

¶7           The jury found Nunnery guilty as charged. The jury also
found that the State proved, as aggravating factors, that Nunnery (1)
committed the offense while on probation and (2) committed the offense as
consideration for the receipt or in the expectation of the receipt of anything
of pecuniary value.

¶8            Although Nunnery was not present for trial, he was present
for sentencing. The trial court conducted the sentencing hearing in
compliance with Nunnery’s constitutional rights and Arizona Rule of
Criminal Procedure (“Rule”) 26. The State withdrew the allegation that
Nunnery was on probation at the time of the conviction as a sentencing
enhancement. The trial court found that Nunnery had two prior felony
convictions that placed him in category three of the repetitive sentencing
scheme. The trial court sentenced Nunnery to a minimum term of ten years’
imprisonment for sale or transportation of marijuana with 387 days’
presentence incarceration credit. The trial court also found that probation
was no longer appropriate for Nunnery’s two prior convictions from 2011
and 2012. It therefore revoked Nunnery’s probation and sentenced him to
one-year imprisonment in his 2011 case with 731 days’ presentence
incarceration credit and one-year imprisonment in his 2012 case with 687
days’ presentence incarceration credit. The court further ordered that all
terms run concurrently. Nunnery timely appealed.

                               DISCUSSION

¶9          We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45 ¶ 3 (App. 2012). As a preliminary matter,



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                            STATE v. NUNNERY
                            Decision of the Court

although Nunnery was absent during his trial and sentencing took place
more than 90 days after his conviction, Nunnery did not forfeit his right to
appeal. Under A.R.S. § 13–4033(C), a defendant may not appeal his
conviction “if the defendant’s absence prevents sentencing from occurring
within ninety days after conviction and the defendant fails to prove by clear
and convincing evidence at the time of sentencing that the absence was
involuntary.” In the instant case, Nunnery was convicted on June 14, 2016.
He was located on October 29, 2016—more than 90 days after his
conviction—and finally sentenced on September 22, 2017, after a delay in
the proceedings due to Rule 26.5 and Rule 11 competency issues. But
because the record before us does not appear to contain evidence that
Nunnery was informed that his voluntary delay of sentencing for more than
90 days would result in a waiver of his appeal rights, see State v. Bolding, 227
Ariz. 82, 88 ¶ 20 (App. 2011), we find no waiver.

¶10           Counsel for Nunnery has advised this Court that after a
diligent search of the entire record, counsel has found no arguable question
of law. 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 of
the proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Nunnery at all stages of the proceedings against him. Nunnery chose not to
attend the trial. His trial was completed in absentia pursuant to Rule 9.1.
Nunnery’s sentences fall within the range prescribed by law, with proper
credit given for presentence incarceration. We decline to order briefing and
affirm Nunnery’s convictions and sentences.

¶11          Upon the filing of this decision, defense counsel shall inform
Nunnery 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). Nunnery 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.




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                  STATE v. NUNNERY
                  Decision of the Court

                      CONCLUSION

¶12   For the foregoing reasons, we affirm.




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




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