                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                   EDWARD LEWIS JACKSON, Appellant.

                              No. 1 CA-CR 13-0473
                               FILED 06-19-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-124003-001
           The Honorable Virginia L. Richter, Judge Pro Tempore

                          AFFIRMED AS MODIFIED


                                    COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant

Edward Lewis Jackson, Tucson
Appellant
                            STATE v. JACKSON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


W I N T H R O P, Judge:

¶1             Edward Lewis Jackson (“Appellant”) appeals his convictions
and sentences for one count of possession or use of narcotic drugs and one
count of possession of drug paraphernalia. Appellant’s counsel has filed a
brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v.
California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), stating that he has searched the record on appeal and found no
arguable question of law that is not frivolous. Appellant’s counsel
therefore requests that we review the record for fundamental error. See
State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating
that this court reviews the entire record for reversible error).
Additionally, this court allowed Appellant to file a supplemental brief in
propria persona, and he has done so, raising several issues that we address.

¶2            We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1) (West 2014), 1 13-4031, and 13-4033(A). Finding no
reversible error, we affirm as modified herein.

             I. FACTS AND PROCEDURAL HISTORY 2

¶3            On June 19, 2012, the State charged Appellant by
information with Count I, possession or use of narcotic drugs, a class four
felony, in violation of A.R.S. § 13-3408(A)(1), and Count II, possession of
drug paraphernalia, a class six felony, in violation of A.R.S. § 13-3415(A).


1     We cite the current Westlaw version of the applicable statutes
because no revisions material to this decision have since occurred.

2      We view the facts in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).



                                       2
                           STATE v. JACKSON
                           Decision of the Court

¶4           At trial, the State presented the following evidence:
Sometime after midnight on May 8, 2012, Officer Baynes of the City of
Phoenix Police Department was travelling in a patrol car near Thomas
Road in Phoenix when he observed Appellant riding a bicycle without
a headlight or rear reflector. The officer activated his overhead lights,
pulled up next to Appellant, and asked him to stop. Appellant complied.

¶5           Although the lighting in the area was good, Officer Baynes
turned on a spotlight mounted on his patrol vehicle and trained it on the
ground so that he could see better. The officer noticed Appellant had
removed a small keychain flashlight from his pocket, and the officer
advised Appellant, “[Y]ou’ve got to have the light out the whole time [for
use as a headlight], not just when the cops get here.” Appellant
apologized and explained that he had only the small light, which he had
not been using because it was “kind of malfunctioning.”

¶6           In response to questioning by the officer, Appellant stated
he had just come from a nearby liquor store, where he had gone to
purchase beer. The officer asked Appellant for identification, and
Appellant agreed to allow the officer to hold the small paper bag
Appellant was carrying while Appellant looked for his wallet. While
holding the bag, Officer Baynes felt “a long, tubular type item” in the bag,
and Appellant admitted he had just purchased a “glass rose.” 3 Appellant
consented to a search of his person, and while he searched Appellant,
Officer Baynes observed what appeared to be two small, white “rocks” of
crack cocaine fall from Appellant’s chest area to the ground and land
approximately six or seven inches in front of Appellant. The officer
handcuffed Appellant and advised him of his rights pursuant to
Miranda. 4 Appellant initially denied dropping the crack cocaine.

¶7          After being placed in the patrol vehicle, Appellant
responded to further questioning about the crack cocaine rocks by stating,
“I’m not saying that they didn’t come from me, I’m just saying that I


3      Officer Baynes testified that a glass rose is a smoking device
fashioned from a glass tube with a nylon rose that typically can be
purchased from a “non-chain liquor store.” After the nylon rose is
removed, rolled copper Brillo is inserted into the tube as a filter so the
pipe can be used to smoke crack cocaine.

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



                                      3
                           STATE v. JACKSON
                           Decision of the Court

didn’t drop them.” Officer Baynes found a glass rose and a two-inch
piece of rolled copper Brillo inside the bag Appellant had been carrying.

¶8           Officer Baynes performed a field recognition test on the
suspected crack cocaine before he impounded it. A forensic scientist
assigned to the Phoenix Police Department’s crime lab tested the “rocks”
impounded by Officer Baynes and concluded they contained 170
milligrams of cocaine base, or “crack” cocaine, a useable amount in a
useable condition.

¶9            Appellant testified that, on the night he was arrested, his
girlfriend failed to meet him for dinner, and he became depressed.
Consequently, shortly after midnight, he went out to purchase crack
cocaine, as well as a pipe and Brillo from a nearby store that sold drug
paraphernalia. As he rode his bike back to his residence to smoke the
cocaine, he was stopped by a police officer. He disputed the officer’s
testimony that he pulled the flashlight from his pocket, claiming instead
he had the flashlight in his hand when he was stopped; however, he
acknowledged “it was faulty.” He also acknowledged the rock cocaine
fell from his person; however, he claimed to have explained to the officer
that the cocaine fell from his hat, and not from his hand. He then told the
jury, “I am guilty of possession of those drugs, I’m not trying to hide that
fact. They properly charged me, okay?” During his testimony, Appellant
volunteered he “had a judge back in 1978 give me 21 years for a crime
that I committed,” and he had “spent about 35 years of my life in prison.”
He also admitted he had a prior felony conviction in Pima County in
2005.

¶10           After the case was presented to the jury, the court recessed.
When the jury announced it had reached a verdict, Appellant did not
timely return to court for the reading of the verdict, despite having been
previously warned by the court and through the release order he had
signed that trial could proceed in his absence. The court determined
Appellant had voluntarily absented himself from the proceedings, and
the jury returned its verdict, finding Appellant guilty of both counts as
charged. The court issued a bench warrant for Appellant’s arrest, and he
was apprehended on April 12, 2013.

¶11          Before sentencing, the trial court found Appellant had at
least nine prior felony convictions. The court sentenced Appellant to
concurrent, presumptive terms of 10 years’ incarceration in the Arizona
Department of Corrections for Count I and 3.75 years’ incarceration for



                                     4
                             STATE v. JACKSON
                             Decision of the Court

Count II, 5 with credit for sixty-two days of presentence incarceration.6
Appellant filed a timely notice of appeal.

                               II. ANALYSIS

¶12          Appellant raises several arguments in his supplemental
brief. We address each in turn.

       I. The Initial Stop

¶13          Appellant claims Officer Baynes’ decision to stop him was
racially motivated. The record, however, provides no support for his
belated claim. Moreover, Appellant’s own testimony strongly supports
the conclusion that the officer had a proper basis for stopping him. In his
testimony, Appellant acknowledged he knew “there’s a law that says


5       The trial court’s June 24, 2013 sentencing minute entry indicates the
court pronounced judgment on both counts as “Non Repetitive” offenses,
and that both sentences were less than the presumptive term of
imprisonment. The record, however, makes clear the court sentenced
Appellant as a category three repetitive offender, see A.R.S. § 13-703(C),
and both the length of the sentences and the transcript of the sentencing
proceedings make clear that Appellant was sentenced to the presumptive
term on each count. Pursuant to A.R.S. § 13-4036, we modify the trial
court’s June 24, 2013 sentencing minute entry to reflect that Appellant was
sentenced as a category three repetitive offender, and that Appellant was
sentenced to the presumptive term of imprisonment on each count. See
State v. Ochoa, 189 Ariz. 454, 462, 943 P.2d 814, 822 (App. 1997).

6      The record reflects Appellant was arrested and booked into
custody on May 8, 2012, and released that same day. On the evening of
April 12, 2013, he was again arrested pursuant to the court’s bench
warrant, and the next day, April 13, he was booked into custody, where he
remained until he was sentenced on June 24, 2013. Thus, Appellant was
incarcerated for a total of seventy-three days before the day of sentencing,
and he should be credited for eleven additional days of presentence
incarceration. When we find a miscalculation in credit, we may correct
the error by modifying the sentence without remanding to the trial court.
See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992).
Accordingly, we modify Appellant’s sentence to reflect eleven additional
days of presentence incarceration credit.



                                      5
                           STATE v. JACKSON
                           Decision of the Court

you’ve got to have some type of an indication that you’re a motorist so
that [motor vehicle drivers] won’t hit you,” and he conceded the stop was
proper because he was using a “faulty” light:

       [The flashlight] was faulty. [The officer] even told me that
       and said, “this is the reason I’m stopping you, because this
       light is faulty.” It was there. I saw him and I knew that you
       had to have a light and I had it on, but I noticed it was
       blinking. That’s the reason that he stopped me, but I don’t
       have no objections to that. The reason he stopped me is
       because the Lord said, “you stop that guy,” as strange as
       that may sound, but that’s what happened.

Given this admission, as well as numerous other admissions by Appellant
indicating the stop was proper, we find no error, much less fundamental
error, in the officer’s decision to stop Appellant.

       II. Appellant’s Testimony

¶14           Appellant next argues the trial court precluded him “from
giving all the facts of said case,” ostensibly because his explanation of the
events was “too religious in nature.” We find no error.

¶15           Before trial began, the prosecutor sought to preclude
Appellant from presenting testimony that intertwined references to his
religious beliefs with possible punishment and receiving “mercy from
God.” The trial court cautioned Appellant not to gratuitously interject
“comments regarding punishment or the validity of prison or jail.”
Nevertheless, the trial transcript indicates the court allowed Appellant a
great deal of leeway in his testimony, including allowing him to make
numerous religious references, and allowed him to testify at length
without questions before him. Although the court sustained a few
objections to Appellant’s testimony made on the bases of relevance and
lack of responsiveness, the court also overruled other objections made on
the basis of relevance.      The court’s rulings regarding Appellant’s
testimony are fully supported by the record, and we find no abuse of
discretion in those rulings, much less fundamental error that could have
in any way prejudiced Appellant.

¶16           We also note that after the close of evidence, final
instructions, closing arguments, and selection of the alternate juror,
Appellant sought to present “other evidence” in an effort “to show that



                                      6
                             STATE v. JACKSON
                             Decision of the Court

I’m not guilty.” Appellant did not explain what additional evidence he
sought to present, however, and the trial court turned the case over to the
jury for deliberation. We find no error, much less fundamental error, in
the court’s implicit denial of Appellant’s belated attempt to present
further testimony.

       III. Use of Priors at Sentencing

¶17           Appellant argues that some of the prior convictions found
by the court “were over forty-five (45) years old.” We find no error in the
court’s finding and use of Appellant’s prior convictions.

¶18            Before trial, the State filed an allegation of historical prior
felony convictions, alleging Appellant had numerous historical priors as a
result of crimes committed between 1965 and 2005. The trial court
ultimately found the State had proved nine prior felony convictions for
the purpose of sentencing enhancement pursuant to A.R.S. § 13-703.
Those crimes dated from October 6, 1970, when Appellant committed the
crimes of aggravated battery and rape, to November 19, 2005, when
Appellant committed the crime of fleeing from a law enforcement vehicle.
Although not a model of clarity, the record supports the conclusion that
Appellant had at least two prior felony convictions in 1965, and thus each
of the nine subsequent felony convictions found by the trial court counted
as a historical prior felony conviction preceding his most current offenses.
See A.R.S. § 13-105(22)(d). Nothing precluded the trial court from
considering these prior felony convictions, despite the fact that some of
them were several decades old. We find no error, much less fundamental
error, in the court’s decision to consider Appellant’s prior felony
convictions at sentencing and to sentence Appellant as a category three
repetitive offender. See A.R.S. § 13-703(C).

       IV. Proposition 200

¶19           Appellant argues he should be eligible for probation and
drug treatment under Proposition 200, the voter-approved initiative
codified at A.R.S. § 13-901.01, because his prior drug offenses were
committed before Proposition 200 was approved by the electorate and
A.R.S. § 13-901.01 came into effect. We disagree.

¶20          Before sentencing, the trial court held a hearing on
Appellant’s prior felony convictions. The prosecutor advised the trial
court, and the court implicitly found, that Appellant was ineligible for



                                          7
                            STATE v. JACKSON
                            Decision of the Court

probation under Proposition 200 because (1) Appellant had previously
been convicted of multiple violent felonies, and (2) he had at least two
previous convictions for personal possession of a controlled substance or
drug paraphernalia. See A.R.S. § 13-901.01(B), (H)(1). The record supports
the court’s implicit finding. Moreover, nothing in A.R.S. § 13-901.01
precluded the court from considering Appellant’s felony convictions that
occurred before Proposition 200 was approved by the electorate and
enacted into law. The court’s application of subsections (B) and (H)(1) of
§ 13-901.01 did not punish Appellant for past conduct, but merely made
him ineligible for probation for his subsequent commission of drug crimes
falling under the ambit of A.R.S. § 13-901.01. See State v. Pendergraft, 124
Ariz. 449, 450, 604 P.2d 1160, 1161 (App. 1979). We find no error, much
less fundamental error, in the court’s conclusion that Appellant was
ineligible for probation.

       V. The Decision to Prosecute

¶21            Appellant next argues the prosecutor made an error in
judgment by taking this case to trial. Prosecutors have wide discretion in
determining which cases to pursue and what penalties to seek. State v.
Lavers, 168 Ariz. 376, 398, 814 P.2d 333, 355 (1991). In this case, Appellant
has not alleged, and the record provides no indication, that the
prosecutor’s decision was motivated by vindictiveness or any other
potentially improper motive or ground. See State v. Montano, 204 Ariz.
413, 428, ¶¶ 78-79, 65 P.3d 61, 76 (2003); State v. Tsosie, 171 Ariz. 683, 685,
832 P.2d 700, 702 (App. 1992); State v. Scott, 17 Ariz. App. 183, 185, 496
P.2d 609, 611 (1972).         Moreover, substantial evidence, including
Appellant’s own admissions, supported the verdict, and we see no abuse
of discretion, much less fundamental error, in the prosecutor’s decision to
prosecute Appellant’s case.

       VI. Appellant’s Alleged Eligibility for Commutation of His Sentence

¶22            Appellant also asserts President Obama has recommended
that all low-level drug offenders file appeals, seek commutation of their
sentences, and otherwise seek further review of their cases in an effort to
obtain relief. He notes that, although he has been convicted of violent
offenses in the past, his most current offenses did not involve violence.
Nevertheless, Appellant’s sentences were within the statutory limits, and
we find no fundamental, reversible error in their application. Appellant
is, of course, not precluded from continuing to seek relief as the law may
provide. See, e.g., Ariz. R. Crim. P. 32.1; A.R.S. § 31-402.



                                       8
                           STATE v. JACKSON
                           Decision of the Court


       VII. Other Issues

¶23            We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at
537, ¶ 30, 2 P.3d at 96. As we have recognized, the evidence presented at
trial was substantial and supports the verdict, and the sentences were
within the statutory limits. Appellant was represented by counsel at
critical stages of the proceedings and was given the opportunity to speak
at sentencing. The proceedings were conducted in compliance with his
constitutional and statutory rights and the Arizona Rules of Criminal
Procedure.

¶24           After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the
appeal and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Appellant has thirty days from the date of this decision to proceed, if he
desires, with a pro per motion for reconsideration or petition for review.

                           III. CONCLUSION

¶25            Appellant’s convictions and sentences are affirmed. The
trial court’s June 24, 2013 sentencing minute entry is modified to reflect
that (1) Appellant was sentenced as a category three repetitive offender,
(2) Appellant was sentenced to the presumptive term of imprisonment on
each count, and (3) Appellant is credited for eleven additional days of
presentence incarceration, or a total of seventy-three days.




                                  :gsh



                                     9
