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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHERYL LYNN SMITH, Appellant.
No. 1 CA-CR 14-0104
FILED 1-27-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-125438-001
The Honorable Jerry Bernstein, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.
STATE v. SMITH
Decision of the Court
O R O Z C O, Judge:
¶1 Cheryl Lynn Smith appeals her convictions and sentences
stemming from her arrest for impaired driving. Smith’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), advising that after a search of the entire
appellate record, she found no arguable question of law. Smith was
afforded the opportunity to file a pro per supplemental brief but has not
done so.
¶2 Our obligation is to review “the entire record for reversible
error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.2d 89, 96 (App. 1999).
Finding no reversible error, we affirm Smith’s convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶3 After recording Smith driving above the posted speed limit,
Glendale police officer Jude Soine (Officer Soine) initiated a traffic stop.
When speaking with Smith, Officer Soine noticed a “faint odor” of an
alcoholic beverage, Smith’s eyes “appeared to be watery and bloodshot”
and Smith’s speech was slurred. Officer Soine asked Smith to exit her
vehicle, and he stated that the odor he faintly smelled previously was more
distinct as Smith walked to the rear of her vehicle. Officer Soine conducted
a “horizontal gaze nystagmus” field sobriety test on Smith. After observing
signs of impairment, Officer Soine arrested Smith “for DUI.”
¶4 At the police station, Smith consented to a breath test that
Officer Soine performed using an “Intoxilyzer 8000” certified by the
Arizona Department of Health Sciences. Two separate tests produced
breath alcohol concentrations of 0.232 and 0.238, respectively. Later trial
testimony by a Glendale “quality assurance officer” and an Arizona
Department of Public Safety criminalist indicated the breath test instrument
was both properly calibrated and working correctly at the time of Smith’s
tests.
¶5 Smith was charged with one count of aggravated driving or
actual physical control while under the influence of intoxicating liquor or
drugs (third offense in eighty-four months and impaired), a class 4 felony
(Count 1), and one count of aggravated driving or actual physical control
while under the influence of intoxicating liquor or drugs (third offense in
eighty-four months and blood alcohol level of 0.08 percent or more), a class
4 felony (Count 2). At trial, the State presented evidence that Smith
previously pled guilty to impaired driving on two separate occasions.
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STATE v. SMITH
Decision of the Court
Smith was convicted by a jury on both counts and sentenced to concurrent
presumptive terms of four-and-a-half years’ imprisonment with forty-five
days of presentence incarceration credit. This timely appeal followed and
we have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1
(West 2015), 1 13-4031 and -4033.A.1 (West 2015).
DISCUSSION
¶6 A conviction for Count 1 requires proof beyond a reasonable
doubt that a defendant: (1) drove or was in actual physical control of a
vehicle; (2) while under the influence of intoxicating liquor, drugs, or vapor
releasing substance; (3) if the defendant is impaired to the slightest degree
and (4) commits two other violations of § 28-1381 in an eighty-four month
period, the third offense becomes “aggravated” and is classified as a class 4
felony. A.R.S. § 28-1381.A.1 (West 2015) and A.R.S. § 28-1383.A.2, L.1 (West
2015).
¶7 Smith testified that she was driving when Officer Soine
initiated the traffic stop. Officer Soine, based on his training and
experience, opined that Smith was under the influence of intoxicating
liquor, and the breath tests performed at the police station confirmed this.
The State also put forth testimony that any person becomes impaired when
blood or breath alcohol concentration reaches or surpasses 0.08 percent.
Smith’s breath tests indicated a breath alcohol concentration that far
exceeded this threshold. Finally, the State put forward evidence that
showed the charged offense was Smith’s third violation of A.R.S. § 28-1381
in eighty-four months. Accordingly, sufficient evidence existed to convict
Smith on Count 1.
¶8 Similarly, a conviction for Count 2 required proving the same
elements as Count 1, except instead of proving “impaired to the slightest
degree,” the State had to show Smith possessed a blood or breath alcohol
concentration of 0.08 or more within two hours of driving. See A.R.S. § 28-
1381.A.2. The elements for Count 2 that mirrored the elements of Count 1
were proven with the same evidence, including the results of Smith’s breath
tests showing her alcohol concentration level above 0.08 percent. Officer
Soine testified that he performed the breath tests on Smith within the two
hour window required by § 1381.A.2, and the instrument used to perform
the tests also produced a report, admitted into evidence, that showed the
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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STATE v. SMITH
Decision of the Court
tests occurred within two hours of Smith driving. Thus, sufficient evidence
existed to convict Smith on Count 2.
CONCLUSION
¶9 We have read and considered counsel’s brief and have
searched the entire appellate record for reversible error. See Leon, 104 Ariz.
at 300, 451 P.2d at 881. We find none. The record indicates Smith was
represented by counsel at all critical stages of the proceedings, Smith was
afforded all her rights under the Constitution and Arizona law, and the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. See Clark, 196 Ariz. at 541, ¶ 50, 2 P.3d at 100. Smith
had an opportunity to speak at sentencing, and the sentences imposed were
within the statutory limits.
¶10 From our independent review of the record, however, our
calculations show that Smith’s presentence incarceration total was less than
the forty-five days awarded by the trial court. Smith’s date of arrest and
presentence report shows she was entitled to forty-four days of presentence
incarceration. The forty-five days of credit awarded by the trial court at
sentencing gives Smith a windfall of one day. This court may not correct
such an error unless the State has timely cross-appealed. State v Dawson,
164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). The State has not cross-
appealed, and we conclude that trial court’s sentence giving Smith credit
for forty-five days accounted for all of Smith’s presentence incarceration
served and more. Sufficient evidence supports the jury’s verdicts and, other
than the presentence incarceration credit error, the trial court imposed a
lawful sentence.
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STATE v. SMITH
Decision of the Court
¶11 Counsel’s obligations pertaining to Smith’s representation in
this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584, 684 P.2d
154, 156 (1984). Smith’s counsel need do no more than inform Smith of this
appeal’s status and her future options, unless counsel’s review reveals “an
issue appropriate for submission” to the Arizona Supreme Court by
petition for review. See id, 140 Ariz. at 584-85, 684 P.2d at 156-57. Smith has
thirty days from the date of this decision to proceed, if she desires, with a
pro per motion for reconsideration or petition for review. We affirm
Smith’s convictions and sentences.
:ama
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