State v. Behlke

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK STEVEN BEHLKE, JR., Appellant.

No. 1 CA-CR 19-0128
FILED 11-26-2019

Appeal from the Superior Court in Yavapai County
No. P1300CR201701423
The Honorable Patricia A. Trebesch, Judge Retired

AFFIRMED AS MODIFIED

COUNSEL

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

Law Offices of Gonzales & Poirier, P.L.L.C., Flagstaff
By Antonio Gonzales
Counsel for Appellant
 STATE v. BEHLKE
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

P E R K I N S, Judge:

¶1 Mark Steven Behlke, Jr., timely filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), following his convictions for nine counts of
fraudulent schemes and artifices, a class 2 felony; two counts of trafficking
in stolen property in the first degree, a class 2 felony; and one count of
failure to appear in the first degree, a class 5 felony. Behlke’s counsel has
searched the record on appeal and found no arguable question of law that
is not frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530,
537, ¶ 30 (App. 1999).

¶2 Behlke did not file a supplemental brief. Counsel asks this
court to search the record for fundamental error and to correct the time
credited to Behlke for his pre-trial incarceration. After reviewing the entire
record, we affirm Behlke’s convictions but modify his pre-sentence
incarceration credit.

FACTUAL AND PROCEEDURAL HISTORY

¶3 Behlke was the sole signatory for two business bank
accounts. After U.S. Bank closed the first account, Behlke signed twenty-
two additional checks against that account. Behlke signed a total of fifty-
seven checks against the second account after U.S. Bank closed it as well.
The bank mailed more than twenty notices to Behlke concerning these
bounced checks.

¶4 Behlke paid for purchases at Able Saw and True Value
businesses in Prescott with bad checks on June 15, 2017. His purchases at
the stores included a pressure washer and chain saw at Able Saw and over
$1,000 worth of merchandise including a miter saw at True Value. A pawn
shop search by Detective Aaron Jennison revealed that Behlke had
pawned the miter saw in Avondale on June 16.

¶5 On June 19, Behlke purchased a power washer and
generator from Valley Verde Outdoor Power Equipment with a bad check.

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Decision of the Court

Behlke then pawned the power washer on June 20 for $75. He then paid
Chino Rentals in Chino Valley, for equipment with a bad check on June
26, 2017. Behlke then attempted to purchase more merchandise at the
Prescott True Value on June 20. Store employees had become aware of his
use of bad checks so they attempted to stall him while contacting police.
Despite the employees’ efforts to stall Behlke, he left, taking his driver’s
license and exiting the store.

¶6 On August 19, Detective Marcus Anderson stopped Behlke
for a traffic violation. The Detective determined that Behlke had an
outstanding warrant for his arrest concerning his fraudulent checks. Upon
arresting Behlke and subsequently searching the vehicle, Detective
Anderson discovered “four generators, a few gas cans, [and]
approximately 72 pawn slips from . . . March 2017 to August 2017 from
various cities.” He also discovered a letter to Behlke from Ace Hardware
concerning a dishonored check for $900.23 from a closed Behlke account.
Detective Anderson discovered that Behlke had purchased the generators
with bad checks.

¶7 Detective Anderson read Behlke his Miranda rights and
interviewed him after Behlke indicated he understood his rights and chose
to speak with him. Behlke admitted he knew that checks used to make
purchases in August were going to bounce and that writing bad checks
was illegal.

¶8 Following his release to a third party with instructions to
appear before a Yavapai County judge, Behlke failed to appear. He then
paid with a series of additional bad checks at various other Yavapai
County businesses from September through October 2017. He was
subsequently re-arrested and held through the remainder of his
proceedings.

¶9 The state charged Behlke with nine counts of fraudulent
schemes or artifices, one count of an attempted fraudulent scheme and
artifice, two counts of trafficking in stolen property, and one count of
failure to appear. Behlke was appointed counsel who represented him at
trial. The twelve-person jury found him guilty of all charged offenses,
except for one count of attempt to commit fraudulent schemes and
artifices. The jury also found that Behlke had committed five counts of
fraudulent schemes and artifices, and the count of failure to appear, while
on felony release.

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Decision of the Court

DISCUSSION

¶10 The record reveals sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Behlke is guilty of the
charged offenses. The record reflects that all proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. See State v.
Gomez, 27 Ariz. App. 248, 251 (App. 1976) (citing Ariz. R. Crim. P. 1.2).
Behlke was represented by counsel and was present at all critical stages of
trial. Behlke chose to testify at trial.

¶11 During sentencing, the state filed and proved a prior felony
conviction for shoplifting. The court noted the jury’s findings of pecuniary
gain, value of the property, and financial harm to victims, as well as the
prior felony conviction. It also found that the aggravating factors
outweighed the mitigating factors of family support and substance abuse.
The court imposed a sentence that was within the statutory limits. See
A.R.S. §§ 13-701, -703, -801.

¶12 Counsel asks us to correct Behlke’s sentencing credit to
properly account for thirteen days of pre-incarceration credit. At trial,
Yavapai County Chief Investigator Ed Bills testified that police arrested
Behlke in Yavapai County on August 19, 2017, and that Behlke appeared
in court again on August 31. Counsel takes this to mean that Behlke was
released to a third party on August 31 after having release conditions set
on August 25. However, the trial court only credited Behlke’s time in
custody from his November 24, 2017 arrest to his sentencing on February
11, 2019, calculating 446 days of pretrial incarceration credit. Therefore,
counsel believes that Behlke is entitled to thirteen additional days of pre-
trial credit.

¶13 It is error, requiring an addition to sentencing credit, for a
trial court to fail to consider all pre-trial incarceration credit. State v.
Everidge, 188 Ariz. 46, 48 (App. 1996); A.R.S. § 13-712(B). While an
alternative release date of August 25 seems to be the more reasonable
interpretation of the transcript, the record is ambiguous and we therefore
adopt defense counsel’s interpretation out of an abundance of caution. We
accordingly modify Behlke’s pre-incarceration credit to a total of 459 days.
State v. Boozer, 221 Ariz. 601, 602, ¶ 7 (App. 2009); Ariz. R. Crim. P.
31.19(c).

CONCLUSION

¶14 We have reviewed the entire record for arguable issues of
law and find none, and therefore affirm Behlke’s convictions and resulting

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sentences as modified concerning additional credit. Leon, 104 Ariz. at 300–
01.

¶15 Defense counsel’s obligations pertaining to Behlke’s
representation in this appeal have ended. Counsel need do no more than
inform Behlke of the outcome of this appeal and his future options, 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). On the court’s own motion, Behlke has thirty
days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration. Further, Behlke has thirty days from the date
of this decision to proceed, if he wishes, with a pro per petition for review.

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

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