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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   NICHALOS TYLER GATES, Appellant.

                             No. 1 CA-CR 18-0217
                              FILED 8-15-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-005684-001
              The Honorable Bradley H. Astrowsky, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                             STATE v. GATES
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz 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 Nichalos
Tyler Gates has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Gates was convicted of one count of burglary in the third degree, a class 4
felony. Gates was given an opportunity to file a supplemental brief in
propria persona; he has not done so. After reviewing the record, we affirm
Gates’s conviction and sentence.

                 FACTS AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Gates. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). One day in March 2017, Phoenix
Police Department Detective Ty Packer was in an unmarked police car
when he observed an individual run out into the street and get into a parked
gold Lincoln Navigator, which then slowly drove away. Detective Packer
then moved his car to another area of the street and shortly thereafter
observed again in his rearview mirror the Navigator approach from behind
him. As the Navigator approached, Detective Packer positioned himself
inside his car so as not to be seen. After the Navigator drove away,
Detective Packer peered through the car window and saw an individual
approach a house and knock on the door several times while constantly
looking around.

¶3             The individual eventually stopped knocking on the door and
walked out of Detective Packer’s view. After losing sight of the individual,
Detective Packer heard dogs barking and consequently repositioned his car
so that he could see the alley behind the home. As Detective Packer watched
the alley, he saw three individuals—including the individual who had been
knocking on the door of the home—jump over a block wall separating the
home’s backyard from the alley and then drive off in the Navigator. The




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                             STATE v. GATES
                            Decision of the Court

other two individuals were later identified as Gates and Gates’s
co-defendant, J.S.

¶4             Believing that a burglary had just occurred, Detective Packer
radioed for a marked unit to make a traffic stop of the Navigator. Before the
officer in the marked police car could make the stop, however, Gates, J.S.,
and the third individual jumped out of the Navigator and fled the area.
Following a brief foot chase, Detective Packer and Officer Gerald Happeny
caught the three individuals and took them into custody.

¶5             A grand jury later indicted Gates for one count of burglary in
the third degree. At trial, Officer Happeny testified that he discovered a
glass-breaking device during a pat-down of J.S. J.C., the victim and
homeowner, testified that when he arrived home after the incident, he
discovered damage to his bedroom window. J.C. also stated that he did not
know Gates or his co-defendant and that he did not give them permission
to be in his yard the day of incident.

¶6            The jury found Gates guilty as charged. The jury also found
that the State proved, as aggravating factors, that the offense was
committed in the presence of an accomplice, that the offense was committed
while Gates was on probation, and that the offense was committed with the
expectation of pecuniary gain. The trial court conducted the sentencing
hearing in compliance with Gates’s constitutional rights and Arizona Rule
of Criminal Procedure 26. At sentencing, the court found that Gates had
four prior felony convictions, which placed him in category three of the
repetitive sentencing scheme. The court sentenced Gates to a maximum
term of 12 years’ imprisonment for burglary in the third degree with 390
days’ presentence incarceration credit. The court also found that probation
was no longer appropriate for Gates’s 2013 prior conviction and it therefore
revoked Gates’s probation and sentenced him to a presumptive term of 1.5
years’ imprisonment with 102 days’ presentence incarceration credit. The
court ordered the terms to run consecutively. Gates timely appealed.

                               DISCUSSION

¶7             We review Gates’s conviction and sentence for fundamental
error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011). Counsel for
Gates 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



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                            STATE v. GATES
                           Decision of the Court

far as the record reveals, counsel represented Gates at all stages of the
proceedings, and the sentence imposed was within the statutory guidelines.
We decline to order briefing and affirm Gates’s conviction and sentence.

¶8             Upon the filing of this decision, defense counsel shall inform
Gates 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). Gates 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

¶9            For the foregoing reasons, we affirm.




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

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