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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID THOMAS MELLO, Appellant.
No. 1 CA-CR 21-0540
FILED 10-20-2022
Appeal from the Superior Court in Mohave County
No. CR-2021-00820
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Jill L. Evans, Attorney at Law, Flagstaff
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
STATE v. MELLO
Decision of the Court
W I L L I A M S, Judge:
¶1 Defendant David Thomas Mello appeals his convictions and
sentences for two counts of sale of dangerous drugs in violation of A.R.S.
§ 13-3407. Mello’s counsel filed a brief per Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), advising us there are no
meritorious grounds for reversal. Mello was given an opportunity to file a
supplemental brief in propria persona but did not do so. Our obligation is to
review the entire record for reversible error, State v. Clark, 196 Ariz. 530, 537
¶ 30 (App. 1999), viewing the evidence in the light most favorable to
sustaining the conviction and resolving all reasonable inferences against
Mello, see State v. Guerra, 161 Ariz. 289, 293 (1989). After reviewing the entire
record, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Twice in February 2019, Mello sold methamphetamine to a
confidential informant. The State charged Mello with two counts of sale of
dangerous drugs.
¶3 Before trial, the State moved in limine to preclude more than a
dozen felony convictions of the informant under Arizona Rule of Evidence
609, and to sanitize the admission of other convictions of forgery and
fraudulent schemes and artifices. The trial court granted the motion, but
later allowed Mello to raise the nature of the informant’s prior forgery and
fraudulent schemes convictions because they “clearly. . . involved dishonest
acts.”
¶4 At trial, the State called both the informant and a detective as
witnesses. Mello impeached the informant with the prior forgery and
fraudulent schemes convictions. Regardless, the jury convicted Mello as
charged.
¶5 The court sentenced Mello to two presumptive 10 year terms
of imprisonment under A.R.S. § 13-3407(E), to run consecutive to each
other. Mello timely appealed.
¶6 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21, 13-4031, and -4033(A)(1).
2
STATE v. MELLO
Decision of the Court
DISCUSSION
¶7 Our review of the record shows no reversible error requiring
remand, Clark, 196 Ariz. at 541, ¶ 50, but note one error we can resolve. The
superior court credited Mello with 10 days of presentence incarceration
credit. However, Mello was arraigned on July 19, 2021 and held in custody
until September 1, 2021. Mello should have been credited with 44 days of
presentence incarceration.
¶8 The remainder of the record reflects that Mello was present
and represented by counsel at all critical stages. State v. Conner, 163 Ariz.
97, 104 (1990); State v. Bohn, 116 Ariz. 500, 503 (1997). The jury appropriately
consisted of 8 jurors in accordance with A.R.S. § 21-102(B). The court
properly instructed the jury of Mello’s presumption of innocence and right
not to testify, the State’s burden of proof, and the elements of the charges
Mello faced. Nothing during Mello’s trial or sentencing hearing unfairly
prejudiced him or deprived him of any constitutional protections. Though
the court found aggravating factors (without the State alleging or the jury
finding any), Mello was not sentenced to an aggravated term. See State v.
Johnson, 210 Ariz. 438, 441, ¶ 10 (App. 2005).
CONCLUSION
¶9 We have reviewed the entire record for reversible error and
find none. Accordingly, we affirm Mello’s convictions and sentences but
modify the sentencing minute entry to reflect that Mello is credited with 44
days of presentence incarceration.
¶10 After this decision’s filing, defense counsel’s obligations
pertaining to Mello’s representation in this appeal will end. Defense
counsel need do no more than inform Mello of the outcome of this appeal
and his future options, 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). On this court’s
motion, Mello has 30 days from the date of this decision to proceed, if he
wishes, with an in propria persona motion for reconsideration or petition for
review.
AMY M. WOOD • Clerk of the Court
FILED: AA
3