State v. Boyd

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLARK ANDRE BOYD, Appellant.

No. 1 CA-CR 17-0633
FILED 11-8-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-154400-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Peter B. Swann
joined.

H O W E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Clark
Andre Boyd has advised this Court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Boyd was convicted of four counts: (1) possession of a dangerous drug, a
class four felony; (2) unlawful flight, a class five felony; (3) resisting arrest,
a class six felony; and (4) possession of marijuana, a class six felony. Boyd
has filed a supplemental brief in propria persona, which the Court has
considered. After reviewing the record, we affirm Boyd’s convictions and
sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Boyd. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). One night in November 2016,
police officers Ryan Nielsen and Kevin McGowan were on patrol in a fully
marked patrol car equipped with lights and a siren. The officers saw Boyd’s
car and ran a computer check on its license plate. The search revealed that
the car’s registration had been suspended, and the officers attempted to
stop Boyd by activating their car’s lights and siren. Boyd did not stop,
however, and continued to drive for about half a mile. He then made a
sudden turn and accelerated, which caused him to temporarily lose control
of his car. Boyd’s car collided with the street curb and blew out both of his
right tires.

¶3 Boyd then got out of his car and briskly walked away from
the officers despite looking directly at their car. Officer McGowan exited
the patrol car first and told Boyd that he was under arrest. At that point,
Boyd reached for his pants’ right pocket with both hands and looked like
he was trying to remove items from his pocket. The officers then grabbed
Boyd and tried to place him in handcuffs. Boyd did not obey the officers’

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commands and resisted their attempts to move his hands behind his back.
Officer Nielsen told Boyd to stop resisting, but Boyd did not. The officers
then took Boyd to the ground to gain better control of him. While on the
ground, Boyd grabbed Officer Nielsen’s gun belt, did not follow any
commands, and would not give them his hands. The officers were
eventually able to handcuff Boyd.

¶4 After the officers placed Boyd in custody, they found a small
bag that contained methamphetamine. When the officers searched Boyd’s
right pocket, they found marijuana in a rolled-up dollar bill. A grand jury
indicted Boyd for possession of a dangerous drug, unlawful flight, resisting
arrest, and possession of marijuana.

¶5 During trial, body camera videos of the arrest were shown to
the jury. The videos showed Boyd asking the officers to stop hitting him
and the officers denying hitting him. The videos did not show the officers
hitting Boyd, but the videos began filming during the middle of the arrest.
Officer Nielsen testified that the body cameras had a delay after being
activated, and Officer McGowan testified that he did not know why his
camera was not operating right away. The officers denied hitting Boyd
during the arrest.

¶6 The jury found Boyd guilty on all counts. The trial court
conducted the sentencing hearing in compliance with Boyd’s constitutional
rights and Arizona Rule of Criminal Procedure 26. Boyd admitted that he
had four prior felony convictions. Thereafter, the trial court found that
Boyd had two prior convictions that placed him in category three of the
repetitive sentencing scheme. The trial court sentenced Boyd to a minimum
term of 8 years’ imprisonment for possession of a dangerous drug, a
presumptive term of 5 years’ imprisonment for unlawful flight, a maximum
term of 4.5 years’ imprisonment for resisting arrest, and a presumptive term
of 3.75 years’ imprisonment for possession of marijuana. The court ordered
all terms to run concurrently, and Boyd received 227 days’ presentence
incarceration credit. Boyd timely appealed.

DISCUSSION

¶7 We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45 ¶ 3 (App. 2012). Counsel for Boyd has advised
this Court that after a diligent search of the entire record, counsel has found
no arguable question of law. However, in his supplemental brief, Boyd
argues that (1) the trial court erred by not giving him a preliminary hearing,
(2) he had ineffective assistance of counsel, and (3) he should have been

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sentenced as either a category one or two repetitive offender despite having
two prior felony convictions.1

¶8 Boyd first argues that the court erred by not giving him a
preliminary hearing. “The purpose of a preliminary hearing is to determine
whether the prosecution’s case establishes probable cause.” Segura v.
Cunanan, 219 Ariz. 228, 234 ¶ 21 (App. 2008). “As an alternative to a
preliminary hearing, the prosecution may establish probable cause by
obtaining an indictment from a grand jury.” Id. at ¶ 22. Here, a grand jury
indicted Boyd on all four counts. Therefore, he was no longer entitled to a
preliminary hearing.

¶9 Next, Boyd claims that he had ineffective assistance of counsel
(“IAC”). IAC claims must be raised in a petition brought under Arizona
Rule of Criminal Procedure 32. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9 (2002). This
Court will not address an IAC claim raised on appeal, regardless of merit.
Id. Thus, we decline to address Boyd’s IAC claim.

¶10 Boyd further argues that he should have been sentenced as
either a category one or two repetitive offender despite having two prior
felony convictions. “If a person is convicted of multiple felony offenses that
were not committed on the same occasion but . . . are not historical prior
felony convictions, the person shall be sentenced as a first time felony
offender . . . for the first offense, as a category one repetitive offender for
the second offense, and as a category two repetitive offender for the third
and subsequent offenses.” A.R.S. § 13–703(A). Under A.R.S. § 13–703(C), “a
person shall be sentenced as a category three repetitive offender if the
person . . . stands convicted of a felony and has two or more historical prior
felony convictions.” Here, Boyd admitted that he had four prior felony
convictions at sentencing. Thus, the trial court correctly sentenced Boyd as
a category three repetitive offender.

¶11 We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, counsel

1 In his supplemental brief, Boyd asked if any of his arresting officers
were on the “Brady list.” Similarly, he claims that the officers’ body camera
videos need to be further investigated concerning why they did not have
earlier camera footage, which he claims would have shown the officers
beating him. These statements and questions are not arguments and we
decline to address them.

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represented Boyd at all stages of the proceedings, and the sentences
imposed were within the statutory guidelines. We decline to order briefing
and affirm Boyd’s convictions and sentences.

¶12 Upon the filing of this decision, defense counsel shall inform
Boyd of the status of the appeal and of his future options. Counsel has no
further obligations 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). Boyd shall have 30 days from
the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

CONCLUSION

¶13 For the foregoing reasons, we affirm Boyd’s convictions and
sentences.

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

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