Court of Appeals of Arizona, First Division, Department A
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County Cause No. CR2010-125362-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee.
Charles M. Thomas Mesa Attorney for Appellant.
PETER B. SWANN, Judge
¶1 Defendant Leonard Lee Hendrix appeals his conviction of one count of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, a class 4 felony ("Count 1"); and one count of aggravated driving or actual physical control of a vehicle with a blood alcohol concentration of 0.08 or more, a class 4 felony ("Count 2"). This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so.
¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 On the evening of May 16, 2010, Defendant was driving his truck on Broadway Road in Phoenix. After witnessing the truck straddling a lane-dividing line, a Phoenix police officer followed the truck and initiated a traffic stop. Defendant and the officer pulled into a parking lot, and Defendant exited the vehicle. The officer asked for Defendant's driver's license, but Defendant was only able to produce an Arizona identification card.
¶4 Defendant admitted that he had consumed alcohol before driving, and the officer administered standardized field sobriety tests. Defendant's performance on these tests was consistent with that of a person under the influence of alcohol. After completing the standardized field sobriety tests, Defendant was handcuffed, placed under arrest for driving under the influence, and transported to the police DUI van.
¶5 Once Defendant arrived at the DUI van, he voluntarily agreed to a blood draw and an interview. Defendant's blood sample results showed that he had a blood alcohol concentration of 0.181. During the interview, Defendant stated that he had been drinking beer earlier that night, including three beers within the last hour or two. Defendant also admitted that his driver's license was suspended.
¶6 Defendant was charged by information with Counts 1 and 2, and a jury found him guilty after a five-day trial. At sentencing, the court found that the state had proved two of Defendant's prior felony convictions. The court considered these two historical prior felony convictions in sentencing. The court then considered various mitigating circumstances, including the fact that the two historical prior felonies were not for violent offenses, that Defendant has community and family support, and that Defendant expressed remorse for his actions. The court found that the mitigating circumstances "substantially outweigh the presumptive term" and consequently sentenced Defendant to the mitigated term of six years in prison. Defendant was credited with 49 days of presentence incarceration.
¶7 Defendant timely appeals. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, ...