State v. Pino

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UNDER ARIZONA RULE OF THE SUPREME COURT 111[c], THIS DECISION IS NOT PRECEDENTIAL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

PATRICK PETE PINA, Appellant.

No. 1 CA-CR 17-0252
FILED 1-30-2018

Appeal from the Superior Court in Maricopa County
No. CR 2016-109926-001
The Honorable Richard L. Nothwehr, Commissioner

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 Jeffrey L. Force
Counsel for Appellant
 STATE v. PINA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Chief Judge Samuel A. Thumma
joined.

B R O W N, Judge:

¶1 Patrick Pina appeals his conviction and sentence for sale of
dangerous drugs, money laundering, possession of dangerous drugs, and
possession of marijuana. Counsel for Pina filed a brief in compliance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), advising that after searching the record on appeal, he found no
meritorious grounds for reversal. Pina was given the opportunity to file a
supplemental brief but did not do so.

¶2 Our obligation is to review the entire record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the
facts in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Pina. State v. Guerra, 161 Ariz. 289, 293 (1989).

¶3 In March 2016, R.W. agreed to assist law enforcement in
conducting a controlled drug purchase from Pina. R.W. called Pina in the
presence of law enforcement officers and arranged to purchase
approximately 14 grams of methamphetamine for $200. An officer gave
R.W. the “buy money,” which consisted of ten $20 bills. Prior to making
the buy, officers searched R.W.’s vehicle and his person to make sure he did
not have any contraband in his possession. Officers watched as R.W. then
went inside Pina’s residence and came out with a plastic baggie containing
what was later confirmed as 13.7 grams of methamphetamine.

¶4 Based on the information obtained, officers applied for and
received a warrant to search Pina’s home, finding what was later confirmed
to be marijuana, methamphetamine, scales, baggies, and pipes. The officers
also found a loaded 9 mm handgun in the master bedroom dresser along
with Pina’s Arizona identification card and a ledger listing names and
dollar amounts. Pina’s cell phone was found, and it was later determined
it was the phone R.W. had called to arrange the purchase.

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 STATE v. PINA
Decision of the Court

¶5 Following Pina’s arrest, officers found a total of $341 on Pina’s
person, including ten $20 bills in his front pocket. During a recorded
interview, Pina admitted the marijuana and methamphetamine found in his
residence belonged to him.

¶6 The jury found Pina guilty of sale of dangerous drugs, money
laundering, possession of dangerous drugs, and possession of marijuana,
and found the sale of dangerous drugs was committed for pecuniary gain.
After a trial on Pina’s historical priors, the superior court found that the
State proved he was a category 3 offender, and because one of the historical
priors involved the sale of methamphetamine, he was subject to sentencing
under Arizona Revised Statutes section 13-3407(E). The court imposed an
aggravated term of 17.5 calendar years’ imprisonment for the sale of
dangerous drugs, and presumptive terms of 11.25 years for money
laundering, 10 years for possession of dangerous drugs, and 3.75 years for
possession of marijuana. The court ordered the sentences be served
concurrently and awarded 132 days of presentence incarceration credit.

¶7 Although Pina did not file a supplemental brief, through his
attorney he identified the following “potential” issues: (1) the buy money
was never registered; (2) his Sixth Amendment right to confront witnesses
was violated; (3) the evidence shown to the jury was not field tested; (4) the
State only played parts of his recorded interview; (5) the officer testified
differently at trial than at the grand jury; and (6) trial counsel never objected
to hearsay.

¶8 Concerning the “buy money,” officers testified they did not
have time to record the serial numbers of the ten $20 bills given for the buy.
Instead, the testimony focused on the denominations given and recovered
rather than the serial numbers of the bills. Next, it is unclear why Pina
suggests his confrontation rights were violated. Presumably he is referring
to R.W.’s absence from the trial. Although R.W. did not testify, nothing in
the record suggests that Pina was precluded from calling R.W. as a witness.
As to the lack of “field testing,” though unnecessary, Officer Miller testified
that “preliminary testing” of the substances was conducted, in addition to
lab testing. Finally, the parties stipulated before trial to the omission of a
portion of Pina’s recorded interview.

¶9 Moreover, we will not address issues of ineffective assistance
of counsel on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
Therefore, we will not address Pina’s concerns about trial counsel’s failure
to impeach an officer on inconsistent statements, failure to object to hearsay
evidence, or any other concern that is based on trial counsel’s performance.

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 STATE v. PINA
Decision of the Court

¶10 After a thorough review of the record, we find no reversible
error, except for the sentencing error noted below. See Clark, 196 Ariz. at
541, ¶ 50. The superior court incorrectly calculated Pina’s presentence
incarceration credit. The record reveals that Pina was initially taken into
custody on March 1, 2016, and released on bond on March 2, 2016. He was
taken into custody again on December 2, 2016, and remained in custody
until sentencing on April 14, 2017. Because Pina was incarcerated for 135
days prior to sentencing, he must be given credit for three additional days
of presentence incarceration credit. We modify Pina’s sentence
accordingly. See State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992)
(correcting a miscalculation in presentence incarceration credit by
modifying the sentence without remanding to the trial court).

¶11 The record reflects Pina was represented by counsel at all
stages of the proceedings against him. He was present at all critical stages
or voluntarily failed to appear. The evidence presented supports the
convictions and the sentences imposed fall within the range permitted by
law. As far as the record reveals, these proceedings were conducted in
compliance with Pina’s constitutional and statutory rights and the Arizona
Rules of Criminal Procedure. Therefore, we affirm Pina’s convictions and
the resulting sentences, as modified.

¶12 Defense counsel’s obligations pertaining to Pina’s
representation in this appeal have ended. State v. Shattuck, 140 Ariz. 582,
584 (1984). Counsel need do no more than inform Pina 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. Id. at 584-85. Pina has 30 days from the date of this
decision to proceed, if he wishes, with a pro per petition for reconsideration
or petition for review.

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

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