State v. McLendon

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLIE WILSON MCLENDON, II, Appellant.

No. 1 CA-CR 14-0478
FILED 6-30-2015

Appeal from the Superior Court in Maricopa County
No. CR2013-435179-002
The Honorable Richard L. Nothwehr, Judge Pro Tem

AFFIRMED

COUNSEL

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

Maricopa County Office of the Legal Defender, Phoenix
By Cynthia D. Beck
Counsel for Appellant
 STATE v. MCLENDON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Donn Kessler joined.

G E M M I L L, Judge:

¶1 Charlie Wilson McLendon, II appeals from his convictions
and sentences for one count of possession or use of dangerous drugs, a class
4 felony, one count of possession of drug paraphernalia, a class 6 felony,
and one count of misconduct involving weapons, a class 4 felony.
McLendon’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), stating that she
has searched the record and found no arguable question of law and
requesting that this court examine the record for reversible error.
McLendon was afforded the opportunity to file a pro se supplemental brief
but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). This court has jurisdiction under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 and 13-4033 (2010).1

¶3 On the night of July 25, 2013, Detectives J., H., and G., all
assigned to the Mesa Police Department’s Street Crimes Unit, were tasked
with a high enforcement narcotics project located around the Lindsey-
University intersection. The Street Crimes Unit was directed to inspect
individuals exhibiting suspicious behavior in high-crime areas. At
approximately 8:30 pm, Detective G. alerted to a strange flickering of light
in a car parked near a convenience store. As the car pulled out of the lot,
Detective J. observed the vehicle take a wide right hand turn onto the main

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

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 STATE v. MCLENDON
Decision of the Court

road. After the vehicle weaved in and out of its designated lane, Detective
J. initiated a traffic stop.

¶4 Detective J. approached the vehicle and noticed the occupants
ducking and moving around. The driver’s license identified the driver as
Charlie McLendon, and McLendon’s suspicious and fidgety behavior
prompted Detective J. to ask if the driver possessed any weapons or
firearms. McLendon first acknowledged a knife in his possession and then
disclosed that a gun was located under his seat. Upon learning McLendon
was a convicted felon, Detective J. instructed McLendon to step out of the
vehicle.

¶5 Detective J. informed McLendon that he would be detained
briefly so the detective could safely retrieve the gun under the seat. As he
was being handcuffed, McLendon admitted to the “points in his pocket,”
an allusion to the street term for syringes. McLendon was escorted to the
curb while Detective J. retrieved the gun, noting it was loaded.

¶6 In addition to the syringes in McLendon’s pockets, Detective
J. discovered two “plastic micro baggies” containing “a white crystalline
substance” later verified to be a useable quantity of methamphetamine,
classified by Arizona statute as a dangerous drug. While McLendon was
being searched, Detective H. conducted an inventory search of the vehicle,
uncovering a used glass pipe and two types of ammunition.

¶7 After being read his Miranda warnings, McLendon conceded
his ownership of the methamphetamine, handgun, and both sets of
ammunition. Moreover, McLendon was fully aware of his status as a
convicted felon and understood he was not allowed to possess a firearm.
McLendon further admitted to using methamphetamine within the last
three hours.

¶8 After his arrest, Detective J. interviewed McLendon a second
time at the police station. McLendon reiterated many aspects of his first
conversation with Detective J., including his recent use of
methamphetamine (via the pipe) prior to his arrest, his past use of injecting
methamphetamine, and his hiding of the gun as Detective J. approached
the vehicle.

¶9 At trial, McLendon was tried in absentia. The State used his
booking photo and physical descriptors to identify McLendon as the
perpetrator. The twelve-member jury convicted McLendon of Count 1, use
or possession of dangerous drugs, Count 2, possession of drug
paraphernalia, and Count 3, misconduct involving weapons. Prior to

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Decision of the Court

hearing evidence of aggravation, McLendon moved to preclude testimony
from a release/parole officer regarding McLendon being on release at the
time of the offenses. The motion was denied, McLendon cross-examined
the release/parole officer’s calculations of release time, and the jury
accepted those calculations. The jury convicted McLendon of two
aggravating factors: commission of an offense while on community
supervision and commission of possession of dangerous drugs or drug
paraphernalia involving the possession of a deadly weapon.

¶10 McLendon was arrested and present at the sentencing
hearing. A trial on priors was held at that time. Evidence previously
admitted at trial led the court to find three historical prior felony
convictions, one of which functioned as an aggravator (committing an
offense while on release), in addition to the other aggravating factor found
by the jury. McLendon was sentenced to an aggravated term of 12 years
imprisonment and the statutory fine for Count 1, a presumptive term of 3.75
year’s imprisonment for Count 2, and another presumptive term of 10 years
for Count 3. He was granted 170 days of presentence incarceration credit
and all three sentences were ordered to be served concurrently.

DISCUSSION

¶11 Having considered defense counsel’s brief and examined the
record for reversible error, see Leon, 104 Ariz. at 300, we find none. The
evidence presented supports the convictions and the sentences imposed fall
within the ranges permitted by law. As far as the record reveals, McLendon
was represented by counsel at all stages of the proceedings, and these
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.

¶12 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
than inform McLendon of the disposition of the appeal and his future
options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review.
McLendon has thirty days from the date of this decision in which to
proceed, if he desires, with a pro se motion for reconsideration or petition
for review.

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Decision of the Court

CONCLUSION

¶13 The convictions and sentences are affirmed.

:ama

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