State v. Tillman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNNY L. TILLMAN, Appellant.

No. 1 CA-CR 23-0261
FILED 2-15-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-143646-001
The Honorable Tracy R. Nadzieja, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
 STATE v. TILLMAN
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 This appeal was filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Appellant Johnny
L. Tillman appeals his convictions and sentences for two counts of
aggravated driving or actual physical control while under the influence of
intoxicating liquor or drugs, class 4 felonies, and one count of possession or
use of a narcotic drug, a class 4 felony. Counsel for Tillman has advised
this court that counsel found no arguable questions of law and asks us to
search the record for fundamental error. Tillman has been afforded an
opportunity to file a supplemental brief in propria persona, and has not done
so. After reviewing the record, we affirm Tillman’s convictions and
sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the evidence in the light most favorable to sustaining
the verdict, resolving all reasonable inferences against Tillman. See State v.
Rienhardt, 190 Ariz. 579, 588-89 (1997). In September 2019, Sergeant Joshua
McDonnell observed Tillman driving a Ford Taurus in Phoenix without the
lights on. Sergeant McDonnell pulled Tillman over and observed that he
had slurred speech and bloodshot eyes. Sergeant McDonnell asked Tillman
to exit the vehicle, and when he did so, he had a tobacco bag in his hand.
Sergeant McDonnell conducted a horizontal gaze nystagmus test and
observed that Tillman had six out of six possible cues. Sergeant McDonnell
conducted two additional field sobriety tests, which Tillman performed
poorly. Sergeant McDonnell arrested Tillman and gave him breath tests
which indicated Tillman’s blood alcohol content was .184 at 3:45 a.m. and
.179 six minutes later. Tillman had been driving on a suspended license.
The tobacco bag contained a useable quantity of cocaine.

2
 STATE v. TILLMAN
Decision of the Court

¶3 The State charged Tillman with two counts of aggravated
driving or actual physical control while under the influence of intoxicating
liquor or drugs, class 4 felonies, one count of possession or use of a narcotic
drug, a class 4 felony, and one count of possession or use of marijuana, a
class 6 felony. Before trial, the State moved to dismiss the marijuana charge,
and the superior court did so. After a jury trial, the jury convicted Tillman
of counts 1-3.

¶4 The superior court sentenced Tillman as a category three
repetitive offender to less than minimum terms of 7.5 years in prison, to be
served concurrently, and gave him credit for 244 days of presentence
incarceration. See Arizona Revised Statutes (“A.R.S.”) section 13-703(J).

¶5 Tillman timely appealed. We have jurisdiction pursuant to
Arizona Constitution Article 6, Section 9, and A.R.S. §§ 12-120.21(A),
13-4031, and -4033(A)(1).

DISCUSSION

¶6 We review Tillman’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Counsel for Tillman has advised this court that after a diligent search of the
record counsel has found no arguable question of law.

¶7 We have read and considered counsel’s brief and have fully
reviewed the record for reversible error and find none. See Leon, 104 Ariz.
at 300. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Sufficient evidence supported the
jury’s verdict, and Tillman was present and represented by counsel at all
critical proceedings. The sentence imposed was within the statutory
guidelines. Accordingly, we affirm Tillman’s convictions and sentences.

¶8 Upon the filing of this decision, defense counsel shall inform
Tillman of the status of the appeal and 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). Tillman will have thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.

3
 STATE v. TILLMAN
Decision of the Court

CONCLUSION

¶9 For the foregoing reasons, we affirm Tillman’s convictions
and sentences.

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

4