State v. McKenna

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT MCKENNA, Appellant.

No. 1 CA-CR 21-0032
FILED 2-10-2022

Appeal from the Superior Court in Maricopa County
No. CR2020-122531-002
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office
By Mark E. Dwyer
Counsel for Appellant
 STATE v. MCKENNA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Robert McKenna appeals his conviction and sentence for
misconduct involving weapons. McKenna’s counsel filed a brief per Anders
v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
advising us there are no meritorious grounds for reversal. McKenna was
granted an opportunity to file a supplemental brief in propria persona and
did not do so. Our obligation is to review the entire record for reversible
error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the
evidence in the light most favorable to sustaining the conviction and
resolving all reasonable inferences against McKenna, State v. Guerra, 161
Ariz. 289, 293 (1989). After reviewing the record, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In June 2020, McKenna was a passenger in a vehicle stopped
by police for suspicion of driving under the influence. During the stop, one
of the officers asked McKenna if the vehicle contained any weapons or other
illegal materials. McKenna, who was on felony probation and a prohibited
possessor, answered in the negative. Officers, however, were able to see the
barrel of a shotgun in the cargo area while shining a flashlight into the
vehicle’s windows. When told by an officer about the presence of the
shotgun, McKenna responded that he meant to inform the officer that a
single-shot 12-gauge shotgun may be in the back of the vehicle. The officers
searched the vehicle and discovered seven unfired 12-gauge shotgun shells.
After being read his Miranda rights, McKenna stated he was a prohibited
possessor and that his prints would probably be on the gun because he
handled it earlier at an acquaintance’s home.

¶3 The State charged McKenna with misconduct involving
weapons, a Class four felony; and alleged McKenna’s prior felony
convictions, the existence of aggravating circumstances, and that the crime
was committed while on probation and on release.

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 STATE v. MCKENNA
Decision of the Court

¶4 At trial, McKenna knowingly, intelligently, and voluntarily
waived his right to legal counsel. The State presented testimony from the
two officers who stopped and searched the vehicle, and the officers
recounted their questioning of McKenna and his admissions. McKenna’s
probation officer also testified, confirming McKenna was on probation on
the date of the offense.

¶5 McKenna moved for an acquittal under Arizona Rule of
Criminal Procedure 20 following the State’s case-in-chief. The trial court
denied the motion. A jury convicted McKenna as charged. McKenna
admitted to the aggravating circumstances alleged and stipulated to having
two historical priors. The court sentenced McKenna to the presumptive
term of 10 years’ imprisonment, plus an additional two years’
imprisonment pursuant to A.R.S. § 13-708(D), with 230 days
pre-incarceration credit. McKenna timely appealed. We have jurisdiction
under Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶6 A review of the record confirms that all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
McKenna was at all times either represented by counsel or afforded
advisory counsel after he knowingly, intelligently, and voluntarily waived
his right to counsel. McKenna was present at all critical stages of the
proceedings, including the trial and the verdict. See State v. Conner, 163 Ariz.
97, 104 (1990) (right to counsel at critical stages); see also State v. Bohn, 116
Ariz. 500, 503 (1977) (right to be present at critical stages). The jury was
properly comprised of eight jurors, and the record shows no evidence of
jury misconduct. See A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a). The trial court
properly instructed the jury on the elements of the charged offense, the
State’s burden of proof, and McKenna’s presumption of innocence. At
sentencing, McKenna was given an opportunity to speak, and the court
stated on the record the evidence and materials it considered and the factors
it found in imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10.
Additionally, the sentence imposed was within the statutory limits. See
A.R.S. §§ 13-701 through -709 (as applicable).

¶7 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”).

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 STATE v. MCKENNA
Decision of the Court

CONCLUSION1

¶8 We have reviewed the entire record for reversible error and
find none; therefore, we affirm McKenna’s conviction and sentence.

¶9 Defense counsel’s obligations pertaining to McKenna’s
representation in this appeal have ended. Defense counsel need do no more
than inform McKenna 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 this court’s motion, McKenna has 30 days from
the date of this decision to proceed, if he wishes, with an in propria persona
motion for reconsideration or petition for review.

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

1The court is in receipt of a pro per untitled notice from McKenna requesting
a status update. We note that McKenna is represented by counsel.
Regardless, with the issuance of this decision, the court takes no further
action on McKenna’s written request.

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