Court of Appeals of Arizona, First Division, Department E
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-145516-004 The Honorable Cari A. Harrison, Judge The Honorable Jo Lynn Gentry-Lewis, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix By Charles R. Krull, Deputy Public Defender Attorneys for Appellant
PATRICIA K. NORRIS, Presiding Judge.
¶1 Annette L. Romo timely appeals from her conviction and sentence for trafficking in stolen property, second degree, a class three felony. Ariz. Rev. Stat. ("A.R.S.") § 13-2307 (2010). After searching the record on appeal and finding no arguable question of law that was not frivolous, Romo's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Romo to file a supplemental brief in propria persona, but Romo did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Romo's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 On August 31, 2011, a manager at a Home Depot informed police that stolen credit card numbers had been used by telephone to purchase a compressor, chainsaw, wrench, and chlorine tablets. Later that day, Romo went to the Home Depot with her boyfriend and two individuals, G.M. and J.V. G.M. and J.V. went inside and picked up the items purchased.
¶3 The four left the Home Depot, and G.M. and J.V. asked Romo's boyfriend if he wanted the items or if either he or Romo knew anybody who might be willing to buy the items. Romo telephoned a person she knew who managed a tow yard, and then the four drove to the tow yard. The manager of the tow yard bought the compressor, chainsaw, and wrench. Thereafter, the four left the tow yard, and the police subsequently arrested them when they stopped at a convenience store.
¶4 A jury convicted Romo of trafficking in stolen property, second degree and also found the presence of an accomplice as an aggravating circumstance. After the superior court found Romo competent for sentencing, at a "priors hearing, " the State proved Romo was a category 2 non-dangerous repetitive offender. The superior court sentenced Romo to the presumptive term of imprisonment of 6.5 years with 181 days presentence incarceration credit.
¶5 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Romo received a fair trial. Although Romo was present on the first day of trial, she was voluntarily absent from the remainder of the trial and, therefore, waived her presence under Arizona Rule of Criminal Procedure 9.1. She was, however, represented by counsel at all stages of the proceedings and was present at all other critical stages.
¶6 The evidence presented at trial was substantial and supports the verdict. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charge, Romo's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Romo was given an opportunity to speak at sentencing, and her sentence was within the range of acceptable sentences for her offense.
¶7 Although the superior court sentenced Romo as a category 2 non-dangerous repetitive offender, the sentencing minute entry erroneously referenced A.R.S. § 13-704 (Supp. 2012) a statute only applicable to dangerous offenders. We therefore correct the ...