State v. Ahumada

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANK ED AHUMADA, Appellant.

No. 1 CA-CR 19-0440
FILED 5-14-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-152941-001
The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant

STATE v. AHUMADA
Decision of the Court

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Frank Ed Ahumada filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969). Ahumada’s counsel searched the record and identified no arguable,
non-frivolous question of law. Counsel, therefore, asks this court to review
the record for fundamental error. Ahumada was given an opportunity to
file a supplemental brief in propria persona. He has not done so. Finding no
error in the record, this court affirms Ahumada’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court views the facts in the light most favorable to
sustaining the jury verdict and resolves all reasonable inferences against
Ahumada. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3 In October 2018, Ahumada lived in a trailer with his then-
girlfriend. The trailer was parked near an apartment complex. On October
20, 2018, E.R. rode his bike by Ahumada’s trailer while he was on his way
to visit a friend who lived in the apartment complex. Believing E.R.
intended to rob his trailer, Ahumada, while holding a sawed-off shotgun,
confronted E.R. After a short argument, Ahumada shot E.R. in the leg. E.R.
ran for help, using his bicycle for support until he collapsed in front of the
apartment complex. Ahumada hid the shotgun in the trailer and fled on his
motorcycle.

¶4 Police arrested Ahumada on October 29, 2018. The State
charged Ahumada with the following offenses: aggravated assault, a class
3 dangerous felony (count 1); misconduct involving weapons, prohibited
possessor, a class 4 felony (count 2); and misconduct involving weapons,
prohibited weapon, a class 4 felony (count 3). The State also alleged four
prior non-dangerous felony convictions and two aggravating
circumstances.

¶5 In March 2019, the superior court granted Ahumada’s request
to sever count 2 for trial purposes. Following a nine-day trial in May 2019,

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STATE v. AHUMADA
Decision of the Court

a jury found Ahumada guilty on counts 1 and 3. The jury also found the
State proved both aggravating circumstances. In June 2019, Ahumada and
the State reached an agreement on count 2. In exchange for his guilty plea
on count 2, the State would dismiss the alleged prior convictions—on count
2 only—and his sentence on count 2 would run concurrent with the
sentences on counts 1 and 3.

¶6 The superior court set a trial on the alleged prior felonies for
July 2019. The State, however, was not prepared to present evidence on the
scheduled date. The superior court denied the State’s motion to continue
and proceeded to sentence Ahumada as a non-repetitive offender. The
superior court sentenced Ahumada to concurrent prison terms of 7.5 years
on count 1 and 2.5 years on counts 2 and 3, and gave Ahumada credit for
258 days of pre-sentence incarceration.

ANALYSIS

¶7 This court has read and considered counsel’s brief and fully
reviewed the record for reversible error, finding none. See Leon, 104 Ariz. at
300; State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).

¶8 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. The record shows Ahumada was
present for, and represented by counsel at, all critical stages of the
proceedings. See State v. Bohn, 116 Ariz. 500, 503 (1977); State v. Conner, 163
Ariz. 97, 104 (1990). The jury was properly comprised of twelve jurors and
two alternates. See A.R.S. § 21-102.A. The record shows no evidence of jury
misconduct. The superior court properly instructed the jury on the elements
of the charged offenses, the State’s burden of proof, and Ahumada’s
presumed innocence. Additionally, Ahumada was given an opportunity to
speak at sentencing, and the sentence imposed was within the statutory
guidelines. See Ariz. R. Crim. P. 26.9, 26.10(b)(1); A.R.S. §§ 13-702.D, 13-
704.A.

CONCLUSION

¶9 Ahumada’s convictions and sentences are affirmed.

¶10 Defense counsel’s obligations pertaining to Ahumada’s
representation in this appeal have ended. Defense counsel need do no more
than inform Ahumada of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584-85 (1984).

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STATE v. AHUMADA
Decision of the Court

¶11 Ahumada has thirty days from the date of this decision to
proceed, if he wishes, with an in propia persona petition for review. See Ariz.
R. Crim. P. 31.21. This court, on its own motion, also grants Ahumada thirty
days from the date of this decision to file an in propia persona motion for
reconsideration. See Ariz. R. Crim. P. 31.20.

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

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