                          NOTICE: NOT FOR PUBLICATION.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.

                 ANDREW JOSEPH MAESTAS, Appellant.

                             No. 1 CA-CR 13-0766
                              FILED 10-28-2014


          Appeal from the Superior Court in Maricopa County
                          No. CR2012-156431
         The Honorable Lisa Ann Vandenberg, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                            STATE v. Maestas
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1            Defendant-Appellant Andrew Joseph Maestas (“Maestas”)
was tried and convicted of resisting arrest and aggravated assault. The
superior court sentenced him to four years’ imprisonment. Counsel for
Maestas filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no
arguable issues to raise, counsel requests that this Court search the record
for fundamental error. Appellant was given the opportunity to, but did not
file a supplemental pro per brief. For the reasons that follow, we affirm
Maestas’s conviction and sentence.

              FACTUAL AND PROCEDURAL HISTORY

¶2            On October 30, 2012, Glendale Police Officer K.R. (“Officer
K.R.”), driving a marked Glendale Police patrol car and wearing a police
uniform that included police badges and patches on the front, sides, and
back, responded to a call regarding a domestic dispute. When Officer K.R.
pulled near the home, he encountered Maestas’s girlfriend, who was crying,
nervous, and upset, and appeared to have minor cuts and bruises.
Maestas’s girlfriend told Officer K.R. that she had been in a fight with
Maestas.1

¶3            While speaking to Maestas’s girlfriend outside, Officer K.R.
heard people arguing inside the home. Officer K.R. approached the front
door of the residence in order to investigate, but testified no one in the
house responded when he knocked and announced that he was with the
police two or three times.2 Maestas’s girlfriend opened the door for Officer


1 Although Officer K.R. noted it appeared Maestas’s girlfriend had been
drinking, he did not feel that her information was inaccurate.
2 Maestas testified that he did not hear Officer K.R. knock or announce

himself, and that the first time he became aware of Officer K.R. was when
he was already in the house.



                                     2
                             STATE v. Maestas
                            Decision of the Court

K.R., from the outside. With the door open, Officer K.R. saw two men
inside, Maestas and his girlfriend’s brother (“A.K.”). When Officer K.R.
told Maestas he needed to speak with him, Maestas responded with
profanity and a verbal refusal to do anything Officer K.R. said, going so far
as to approach Officer K.R. and taking an “aggressive stance.”3

¶4             As Maestas was not cooperating, Officer K.R. told Maestas he
was being placed under arrest and attempted to put Maestas in an arm bar.
Maestas then swung back with his elbow at Officer K.R.4 Officer K.R.
testified that Maestas tried to kick back at him, forcing him to attempt to
place Maestas on the ground to keep Maestas from struggling. Officer K.R.
fell to the ground while attempting to ground Maestas, and they ended up
in a “wrestling match.”5 A.K. testified that during this struggle, Maestas
lunged towards Officer K.R. Officer K.R. got up, at which point Maestas
wrapped his arms around Officer K.R.’s legs. Concerned for his safety at
that point, Officer K.R. disengaged from Maestas and deployed his Taser to
end the scuffle.6

¶5              Maestas was charged with one count of resisting arrest, a class
six felony and one count of aggravated assault, a class five felony. After a
trial, a jury convicted Maestas on all counts. The superior court concluded
that there had been sufficient evidence of two prior historical felony
convictions, as one was admitted by Maestas during trial and the court
found the other based on evidence presented by the State. The court also
found, with regards to the conviction for aggravated assault, that there
were mitigating factors. As such, the superior court sentenced Maestas to
a presumptive term of 3.75 years’ imprisonment for resisting arrest to run
concurrently with a mitigated term of 4 years’ imprisonment for aggravated
assault.

¶6           Maestas’s appeal is timely. This Court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona

3 Maestas insisted he responded calmly to the officer, however A.K. testified

that Maestas was very resistant to Officer K.R.’s demands.
4 Maestas testified that, due to injuries on his left wrist, he jerked back in

pain and not in an attempt to hurt Officer K.R.
5 Maestas testified that Officer K.R. repeatedly punched him in the face,

after taking him to the ground; however, Officer K.R. testified he struck
Maestas in the face with his knee only to create distance during the struggle.
6 Officer K.R. testified he believed that he deployed his Taser only once,

however Maestas and A.K. both testified that Officer K.R. tased Maestas
three times.


                                      3
                             STATE v. Maestas
                            Decision of the Court

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003) and 13-
4033(A)(1) (2010).

                                 DISCUSSION

¶7              In an Anders appeal, this Court must review the entire record
for fundamental error. Error is fundamental when it affects the foundation
of the case, deprives the defendant of a right essential to his defense, or is
an error of such magnitude that the defendant could not possibly have had
a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607
(2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).

¶8           After reviewing the entire record, we find no meritorious
grounds for reversal of Maestas’s convictions or modification of the
sentences imposed. The record reflects Maestas had a fair trial and the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The evidence supports each of the convictions.

I.     Sufficiency of Evidence

¶9            In reviewing the sufficiency of evidence at trial, “[w]e
construe the evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v. Greene,
192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “Reversible error based
on insufficiency of the evidence occurs only where there is a complete
absence of probative facts to support the conviction.” State v. Soto-Fong, 187
Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423,
424–25, 555 P.2d 1117, 1118–19 (1976)).

       A.     Resisting Arrest

¶10             One resists arrest by “intentionally preventing or attempting
to prevent a person reasonably known by [one] to be a peace officer, acting
under color of such peace officer’s official authority, from effecting an arrest
by . . . [u]sing or threating to use physical force against the peace officer or
another . . . [or u]sing any other means creating a substantial risk of causing
physical injury to the peace officer or another.” A.R.S. § 13-2508(A) (2013).7

¶11           As summarized supra, ¶¶ 2-3, the State presented evidence
that Maestas had reason to know that the victim, Officer K.R., was a peace
officer engaged in his official duties. Further, Officer K.R. and A.K. testified

7 We cite to the current versions of statutes when no changes material to
this decision have since occurred.


                                       4
                            STATE v. Maestas
                           Decision of the Court

that once the door was open, and before Officer K.R. attempted to arrest
Maestas, Officer K.R. was clearly visible and easily identifiable as a police
officer. The State also submitted testimony to show that Maestas used force
and the threat of force to resist arrest. Supra, ¶¶ 3-4. Although Maestas
insisted during trial that he responded calmly to the officer and jerked his
arm in pain, rather than in an attempt to hurt Officer K.R., we construe the
evidence in the light most favorable to affirming the judgment and will
affirm unless there is a complete absence of probative facts to support the
conviction. Supra, ¶ 9. Accordingly, we conclude that there is sufficient
evidence to support Maestas’s conviction on the count of resisting arrest.

      B.     Aggravated Assault

¶12             Assault, as defined by A.R.S. § 13-1203(A)(2) (2010), is
“[i]ntentionally placing another person in reasonable apprehension of
imminent physical injury.” One commits aggravated assault when one
“commits the assault knowing or having reason to know that the victim is .
. . [a] peace officer, or a person summoned and directed by the officer while
engaged in the execution of any official duties.” A.R.S. § 13-1204(A)(8)(a)
(2013).

¶13             Once again, the record shows sufficient evidence that Maestas
intentionally placed Officer K.R. in reasonable apprehension of physical
injury. Supra, ¶¶ 3-4. Further, as previously addressed, the State presented
evidence that Maestas knew or had reason to know that Officer K.R. was a
police officer.

¶14           Given this testimony and evidence, we conclude that there is
sufficient evidence to support Maestas’s conviction on the count of
aggravated assault.

II.   Presentence Incarceration Credit

¶15           Presentence incarceration credit is given for time spent in
custody beginning on the day of booking, State v. Carnegie, 174 Ariz. 452,
454, 850 P.2d 690, 692 (App. 1993), and ending on the day before sentencing.
State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987).

¶16           Here, the presentencing report indicated that Maestas had
served seventy-eight days of presentence incarceration. At sentencing, the
superior court added eleven days to Maestas’s presentence incarceration
credit, because the original sentencing date was postponed. Both the
transcript and minute entry reflect the court gave Maestas credit for eighty-
nine days.


                                     5
                            STATE v. Maestas
                           Decision of the Court

¶17            However, by our calculation, Maestas was incarcerated for
seventy-three days prior to sentencing. A bench warrant for Maestas’s
arrest was issued July 11, 2013. Maestas was arrested July 20, 2013.
Therefore, although Maestas was incarcerated for seventy-three days, he
received credit for eighty-nine days. Any illegal sentence that favors the
appellant cannot be corrected unless the State has filed a timely cross-
appeal. State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990) (“In the
absence of a timely appeal or cross-appeal by the state seeking to correct an
illegally lenient sentence, an appellate court has no subject matter
jurisdiction to consider that issue.”). Therefore, this Court will not modify
Maestas’s presentence incarceration credit.

                              CONCLUSION

¶18          After careful review of the record, we find no meritorious
grounds for reversal of Maestas’s conviction or modification of the sentence
imposed. The evidence supports the verdict, the sentence imposed was
within the sentencing limits, and Maestas was represented at all stages of
the proceedings below. Accordingly, we affirm Maestas’s conviction and
sentence.

¶19            Upon the filing of this decision, counsel shall inform Maestas
of the status of the appeal and his options. Defense 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, 684 P.2d 154, 156–57 (1984). Maestas shall
have thirty days from the date of this decision to proceed, if he so desires,
with a pro per motion for reconsideration or petition for review.




                                   :gsh




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