                                    Arizona
                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Plaintiff/Appellant,

                                        v.

           MICHAEL GEORGE KORNACK, Defendant/Appellee.

                             No. 1 CA-CR 18-0720
                               FILED 9-19-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2017-144349-001
          The Honorable Laura J. Giaquinto, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Public Defender, Phoenix
By Joel M. Glynn
Counsel for Defendant/Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Plaintiff/Appellee
                             STATE v. KORNACK
                             Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.


M c M U R D I E, Judge:

¶1             Michael Kornack appeals his convictions for two counts of
Aggravated Driving or Actual Physical Control While Under the Influence
of an Intoxicating Liquor or Drugs, class 4 felonies, and the resulting
sentences. Kornack’s counsel filed a brief under Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a
diligent search of the record, he found no arguable question of law that was
not frivolous. Counsel asked this court to search the record for arguable
issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537,
¶ 30 (App. 1999). Kornack filed a pro se supplemental brief and raised the
following issues: (1) his license was not suspended for prior violations; (2) a
search warrant was required for his blood draw; and (3) the court should
not have considered his prior felony convictions because another superior
court in a 2001 case did not consider his prior convictions. After reviewing
the record, we affirm Kornack’s convictions and sentences.

              FACTS AND PROCEDURAL BACKGROUND

¶2            On September 26, 2017, a police officer saw Kornack stopped
in a crosswalk at a red light. As the light turned green, the car changed lanes
as it went through the intersection. The officer also saw the vehicle swerve
back-and-forth in between two lanes, and traveled 60 miles per hour in a 45
mile-per-hour zone. The officer stopped Kornack for the described traffic
violations. The officer asked Kornack for his driver’s license, which he did
not have because his license had been suspended and canceled. The officer
noticed Kornack had bloodshot, watery eyes, and dilated pupils.

¶3          The officer engaged Kornack in several field sobriety tests and
observed that Kornack demonstrated poor balance and lack of
time-awareness. The officer arrested Kornack and gave him Miranda 1
warnings. Kornack stated that he had smoked marijuana the day before the
incident and used methamphetamine approximately five days ago.

1      Miranda v. Arizona, 384 U.S. 436 (1966).


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                           STATE v. KORNACK
                           Decision of the Court

Kornack said he was feeling groggy and probably should not be driving
after taking Prozac and Thorazine that evening.

¶4            The officer read Kornack the Implied Consent Affidavit,
advising him of his obligation to submit to a blood test to avoid
consequences to his driving record and that, if he refused, the officer would
get a search warrant to obtain the sample without permission. Kornack
consented to a blood draw. After two failed attempts to draw blood, the
officers successfully drew Kornack’s blood. At no point during any of the
three attempts to draw blood did Karnack tell the officers to stop. The blood
tested positive for 620 nanograms per millimeter of methamphetamine.

¶5            Kornack pled not guilty and filed a motion to suppress the
results of the blood draw. The superior court conducted an evidentiary
hearing and denied the motion to suppress, finding that reasonable
suspicion existed to stop the vehicle and Kornack consented to the blood
draw. The State filed several pretrial motions, including allegations of prior
felony convictions. The State alleged that Kornack’s 1997 theft and burglary
convictions were multiple offenses not committed on the same occasion and
were not historical prior felony convictions, but asserted that Kornack had
been convicted in 2001 of theft by means of transportation, which would
qualify as a historical prior felony. The State did not file an allegation of
aggravating circumstances.

¶6             Kornack filed a motion to change counsel five days before the
scheduled trial. The court denied Kornack’s request for new counsel as
untimely. Kornack then moved to represent himself, which the court
granted but ordered defense counsel to remain as advisory counsel. The
court explained to Kornack that he would be responsible for the opening
statement and examining the witnesses if he represented himself. The court
discussed with Kornack the potential sentences he could receive if he lost
at trial and the right to have defense counsel resume representation during
the trial. Kornack elected to represent himself with defense counsel
advising him. Kornack represented himself for most of the jury selection,
with help from advisory counsel. After the court empaneled the jury,
Kornack stated that he no longer wished to represent himself and requested
defense counsel to be reappointed. The court obliged.

¶7           After hearing the evidence noted above, the jury found
Kornack guilty on both counts. The court sentenced Kornack to the
presumptive term of 4.5 years’ imprisonment for each count to run
concurrently and awarded him 57 days’ presentence incarceration credit.




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                            STATE v. KORNACK
                            Decision of the Court

Kornack timely appealed, and we have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶8           We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶9             In his supplemental brief, Kornack first argues that he
voluntarily canceled his driver’s license and that it was not suspended for
prior violations. However, the State presented evidence that Kornack’s
license had been suspended and that he received 11 suspension notices by
mail in 2006, 2007, 2008, and 2012. On the date of Kornack’s arrest, the status
of his license was both suspended and canceled. Therefore, the jury could
reasonably conclude he was driving on a suspended or canceled license.

¶10            Second, Kornack argues that his blood test results should
have been suppressed because the officers did not secure a search warrant.
Obtaining a suspect’s blood sample without a warrant is reasonable under
the Fourth Amendment if the suspect consents either expressly or implicitly
to the blood draw. State v. Valenzuela, 239 Ariz. 299, 307 ¶ 25 (2016); State v.
Estrada, 209 Ariz. 287, 290, ¶ 11 (App. 2004). A suspect may withdraw
consent at any time before the search is concluded. State v. Becerra, 239 Ariz.
90, 92, ¶ 9 (App. 2016) (“Even after a person initially consents to a search,
she nevertheless remains free to withdraw or narrow the scope of her
consent at any time.”) Kornack consented to the blood draw and never
withdrew his consent at any time before, during, or after the three attempts
were made. Consequently, a warrant was not needed to draw his blood
given his consent.

¶11            Lastly, Kornack argues that a judge in a prior case did not
consider his prior felony convictions to determine the sentence. While
Kornack’s assertion may be true, the presumptive sentence with a prior
historical felony conviction was appropriate in this case, and the superior
court judge did not abuse its discretion by considering the previous
convictions. See State v. Cazares, 205 Ariz. 425, 427, ¶ 6 (2003) (“A trial court
has broad discretion to determine the appropriate penalty to impose upon
conviction, and we will not disturb a sentence that is within statutory limits,
as petitioner’s is, unless it clearly appears that the court abused its
discretion.”); State v. Brown, 209 Ariz. 200, 203, ¶ 11, n.3 (2004) (“the Sixth
Amendment limit on judicial discretion applies only to factfinding ‘that
increases the penalty for a crime beyond the prescribed statutory


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                           STATE v. KORNACK
                           Decision of the Court

maximum’” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))); see
also A.R.S. § 13-703(I) (historical prior felony criteria for category two
repetitive offenders).

¶12           Kornack was present, or waived his presence, and
represented himself or by counsel at all stages of the proceedings against
him. The record reflects the superior court afforded Kornack all his
constitutional and statutory rights, and the proceedings were conducted
following the Arizona Rules of Criminal Procedure. The court conducted
appropriate pretrial hearings, and the evidence presented at trial and
summarized above was sufficient to support the jury’s verdicts. Kornack’s
sentences fall within the range prescribed by law, with proper credit given
for presentence incarceration.

                               CONCLUSION

¶13             Kornack’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Kornack’s
representation in this appeal will end after informing Kornack of the
outcome of this appeal and his future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).




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




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