                          NOTICE: NOT FOR PUBLICATION.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.

                JOSE CARDENAS-SALCIDO, JR., Appellant.

                             No. 1 CA-CR 12-0294
                              FILED 07-29-2014


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201100751
          The Honorable Robert B. Van Wyck, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Roser Law Office, St. Johns
By Samuel J. Roser
Counsel for Appellant
                     STATE v. CARDENAS-SALCIDO
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.


K E S S L E R, Presiding Judge:

¶1           Jose Cardenas-Salcido, Jr. (―Cardenas‖) filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), following his conviction of
transportation of a dangerous drug for sale, a class 2 felony. Finding no
arguable issues to raise, Cardenas’s counsel requested that this Court
search the record for fundamental error. Cardenas was afforded the
opportunity to file a pro per supplemental brief and presented the
following issues: (1) sufficiency of the evidence, (2) ineffective assistance
of counsel, and (3) length of sentence. For the following reasons, we
affirm Cardenas’s conviction and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In September 2011, Deputy W.M. conducted a search of a
greyhound bus with the assistance of his narcotics canine. The canine
alerted to a bag in the baggage compartment underneath the bus. The
name printed on the baggage claim ticket on the luggage was Jose
Carreras.

¶3          Deputy W.M. asked the driver to call for Jose Carreras to see
if anyone on the bus would come forward. When no one responded,
Deputy W.M. deemed the bag abandoned. A search of the bag revealed
three Tupperware containers of methamphetamine.

¶4            Deputy W.M. then boarded the bus and requested to see the
passengers’ boarding passes. When Deputy W.M. approached Cardenas,
Cardenas stated he did not have a ticket and instead provided an ID. The
first name on the ID was identical to that on the baggage claim ticket, and
the last name was off by two letters. Cardenas was subsequently asked to
exit the bus.

¶5           Deputy W.M. testified that when he approached Cardenas,
he noticed him shuffling his feet forward. During a search of the area
where Cardenas had been shuffling his feet, Deputy W.M. found an


                                     2
                     STATE v. CARDENAS-SALCIDO
                         Decision of the Court

envelope containing a boarding pass with the same name listed on the
baggage claim ticket. Cardenas was then placed under arrest. Cardenas
testified that he did not bring any bags on the bus and had never gone by
the name Jose Carreras.

¶6            Cardenas was charged and found guilty of transportation of
a dangerous drug for sale, a class 2 felony. He was sentenced to a ten-year
term of imprisonment, and was awarded 199 days of presentence
incarceration credit.

¶7            Cardenas filed a timely appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, as well as
Arizona Revised Statutes (―A.R.S.‖) sections 12-120.21(A)(1) (2003), 13-
4031 (2010), and -4033(A)(1) (2010).

                         STANDARD OF REVIEW

¶8            In an Anders appeal, this Court must review the entire record
for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388,
391 (App. 1993). Fundamental error is ―error going to the foundation of
the case, error that takes from the defendant a right essential to his
defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.‖ State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688
P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20.

                               DISCUSSION

¶9            After careful review of the record, we find no grounds for
reversal of Cardenas’s conviction or sentence. The record reflects
Cardenas had a fair trial and all proceedings were conducted in
accordance with the Arizona Rules of Criminal Procedure. Cardenas was
present and represented by counsel at all critical stages of trial, was given
the opportunity to speak at sentencing, and the sentence imposed was
within the range for Cardenas’s offense.

I.     Sufficiency of the Evidence

¶10           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


                                      3
                     STATE v. CARDENAS-SALCIDO
                         Decision of the Court

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)).

¶11           The crime of transportation of a dangerous drug for sale
requires proof that a person knowingly (1) transported (2) for sale (3) a
dangerous drug. A.R.S. § 13-3407(A)(7) (Supp. 2013). First, the State
presented evidence that Cardenas was the owner of the bag containing
drugs on the bus. When approached by Deputy W.M., Cardenas
provided him with his ID, which was similar to the name on the baggage
claim ticket. Deputy W.M. testified that he noticed Cardenas shuffling his
feet forward, and during a search of the area, Deputy W.M. found an
envelope containing a boarding pass with the same name listed on the
baggage claim ticket. Based on this evidence, the jury could have inferred
that Cardenas used a fake name to purchase the bus ticket, and attempted
to discard the ticket linking him to the bag underneath the bus seats.

¶12           The State next presented evidence that Cardenas’s bag
contained a dangerous drug for sale. A chemist from the Arizona
Department of Public Safety Crime Laboratory testified that the plastic
containers contained methamphetamine, a dangerous drug pursuant to
A.R.S. § 13-3401(6)(c)(xxxiv) (Supp. 2013). The drugs were hidden under
the bag’s flooring, were wrapped in plastic wrap, and included a masking
agent to conceal any odor. The total weight of the methamphetamine was
over 1,000 grams with a street value of between $100-$120 per gram. The
amount, packaging, and concealment of the methamphetamine supports
the inference that it was possessed for sale rather than for personal use.
See State v. Arce, 107 Ariz. 156, 160, 483 P.2d 1395, 1399 (1971)
(―Circumstantial evidence may be used to show that the accused
possessed the narcotics for sale rather than for his individual use.‖); State
v. Aikins, 17 Ariz. App. 328, 336, 497 P.2d 835, 843 (1972)
(―[C]ircumstantial evidence regarding the quantity of contraband . . .
found in the possession of defendant, its packaging, the secret
compartment in which it was discovered, all can be taken into account in
convicting for possession for sale.‖).

¶13            In comparing the evidence in the record to the elements
listed in the statute, we find there was sufficient evidence to support the
jury’s conviction of Cardenas for transportation of a dangerous drug for
sale.




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                     STATE v. CARDENAS-SALCIDO
                         Decision of the Court

II.    Ineffective Assistance of Counsel

¶14           In his supplemental brief, Cardenas raises a claim of
ineffective assistance of counsel. The Arizona Supreme Court has held
―that a defendant may bring ineffective assistance of counsel claims only
in a Rule 32 post-conviction proceeding—not before trial, at trial, or on
direct review.‖ State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153
P.3d 1040, 1044 (2007). Accordingly, we do not address this claim.

III.   Sentencing

¶15           After Cardenas’s conviction, the superior court held a
sentencing hearing on the State’s allegation of parole status. Cardenas’s
parole officer testified that at the time of the offense, Cardenas was on
probation for possession of marijuana, a class 4 felony. Consequently, the
court sentenced Cardenas to ten years in prison, noting that the
presumptive sentence was the minimum Cardenas could receive because
of his parole status at the time of the offense.1    See A.R.S. § 13-708(C)
(Supp. 2013).

¶16           In Apprendi v. New Jersey, the United States Supreme Court
reaffirmed that ―[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.‖ 530 U.S. 466, 490 (2000). In Alleyne v. United States, the United
States Supreme Court held that Apprendi applies equally in force to facts
that increase the prescribed statutory minimum sentence. 133 S.Ct. 2151,
2160 (2013). We have held that Apprendi applies ―to a defendant’s release
status when that fact exposes him to a higher mandatory minimum
sentence.‖ State v. Large, 234 Ariz. 274, 279-80, ¶ 16, 321 P.3d 439, 444-45
(App. 2014). We therefore conclude Cardenas was entitled to have a jury
determine his parole status. Nevertheless, we affirm Cardenas’s sentence
because the error was not prejudicial. Here, the record shows that a
reasonable jury could not conclude that Cardenas was not on parole at the
time of the offense: (1) Cardenas testified at trial that he was convicted of a
felony in 2011; (2) at sentencing, Cardenas’s parole officer testified that at
the time of the offense, Cardenas was on probation for possession of
marijuana, a class 4 felony, and (3) the superior court admitted into


1       The court stated ―I can’t go any lower than ten years, and I’m not
going to go higher because I think ten years is more than I would sentence
you if I had discretion. Ten years is all I can – is the lowest I can go.‖



                                      5
                     STATE v. CARDENAS-SALCIDO
                         Decision of the Court

evidence a certified copy of the prior judgment. Based on the foregoing,
the court’s failure to submit Cardenas’s parole status to the jury does not
require a reversal or remand.

IV.    Presentence Incarceration Credit

¶17            Presentence incarceration credit is given for time spent in
custody beginning on the day of booking and ending on the day before
sentencing. See State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App.
1993); State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987).
Cardenas was in custody from his arrest on September 20, 2011, until his
sentencing on March 23, 2012.             Although Cardenas’s total time
incarcerated was 185 days, he received a credit of 199 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 the credit.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm Cardenas’s conviction
and sentence. Upon the filing of this decision, defense counsel shall
inform Cardenas of the status of his appeal and his future appellate
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). Upon the Court’s own motion, Cardenas 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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