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State v. Apolinar

Court of Appeals of Arizona, Second Division, Department B

September 13, 2013

THE STATE OF ARIZONA, Appellee,
v.
GEORGE FRANKLIN APOLINAR, Appellant.

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR62991 Honorable Michael Alfred, Judge Honorable Richard S. Fields, Judge

Lori J. Lefferts, Pima County Public Defender By Abigail Jensen Tucson Attorneys for Appellant.

MEMORANDUM DECISION

VIRGINIA C. KELLY, Presiding Judge

¶1 Appellant George Apolinar was convicted after a jury trial in absentia of unlawful transfer of marijuana, two counts of unlawful sale of a dangerous drug, unlawful offer to sell a dangerous drug, unlawful possession of a dangerous drug for sale, unlawful possession of drug paraphernalia, and unlawful possession of marijuana. More than eleven years after he was convicted, the trial court sentenced Apolinar to mitigated, concurrent sentences, the longest of which is four years.

¶2 Counsel has filed a brief in compliance with Anders v. California, 3 86 U.S. 738 (1967), avowing she has reviewed the record and "has been unable to find any arguably meritorious issue to raise on appeal." She asks us to search the record for fundamental error. In compliance with State v. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d 89, 97 (App. 1999), counsel also has provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." Pursuant to our obligation under Anders, we have reviewed the record in its entirety and are satisfied it supports counsel's recitation of the facts. Apolinar has not filed a supplemental brief.

¶3 Viewed in the light most favorable to upholding the jury's verdicts, seeState v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence established that on several occasions in July and August 1998, Apolinar either gave an undercover police officer usable amounts of marijuana or sold him methamphetamine exceeding the statutory threshold amount, and offered to sell the officer an additional two pounds of methamphetamine. Officers also seized a digital scale Apolinar had used during the sales. We conclude that substantial evidence supported findings of all the elements necessary for Apolinar's convictions, see A.R.S. §§ 13-3405(A)(1), (A)(4), 13-3407(A)(2), (A)(7), 13-3415(A), and 13-3420, [1] and his sentences are authorized by law, see former A.R.S. §§ 13-3419, 13-702.[2]

4 In our examination of the record pursuant to Anders, we have found no reversible error and no arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. We have, however, noted an error in the sentencing minute entry. Although Apolinar was charged with and convicted of unlawful offer to sell a dangerous drug in count four, and unlawful possession of a dangerous drug for sale in count five, the trial court instead imposed sentences for those counts based on unlawful sale of a dangerous drug, an error also reflected in the sentencing transcript. However, it is abundantly clear from the rest of the record, including the indictment, the verdict forms, the oral pronouncement of verdict, the jury instructions, and the witnesses' testimony that the attorneys, the court, and the jury understood the charges on those counts. Moreover, because the sentences imposed were, in any event, correct, the error was harmless.

¶5 Accordingly, we amend the minute entry dated August 28, 2012, to conform to the verdicts for counts four and five consistent with this decision. Apolinar's convictions and sentences are affirmed.

CONCURRING: PHILIP G. ESPINOSA, Judge PETER J. ECKERSTROM, Judge


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