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State v. Cullinane9/19/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
While waiting in line at a fast food restaurant, appellant Kimberly Anne Cullinane drove her car into the back of the vehicle in front of her. Police were called to the scene, and a blood test taken about an hour later established that appellant had a blood alcohol concentration (BAC) of.373. After a jury trial, appellant was convicted of aggravated driving under the influence of intoxicants (DUI) with a suspended license, aggravated DUI after having sustained two prior DUI convictions, aggravated driving with a BAC of.10 or more while her license was suspended, and aggravated driving with a BAC of.10 or more after having sustained two prior DUI convictions. The trial court imposed concurrent, presumptive prison terms of 2.5 years on each count after the state withdrew its enhancement allegation of a prior conviction. Counsel has filed a brief in compliance 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), raising a single arguable issue and asking this court to review the record for fundamental error. Appellant has not filed a supplemental brief.
As an arguable issue, counsel asks this court to consider whether the trial court abused its sentencing discretion by imposing the presumptive prison terms rather than mitigated terms, suggesting the court did not give adequate weight to certain evidence in mitigation, particularly appellant's family obligations involving her mentally disabled brothers and physically disabled mother. Counsel also suggests that the court may have improperly considered appellant's alcoholism in imposing the presumptive rather than the mitigated term, arguing that it is actually a mitigating, not an aggravating, circumstance.
We first address the state's contention that counsel's brief is not an Anders brief but that, instead, counsel has filed a merits brief, creating the kind of improper hybrid representation rejected in State v. Banicki, 188 Ariz. 114, 933 P.2d 571 (App. 1997), and State v. Scott, 187 Ariz. 474, 930 P.2d 551 (App. 1996). We disagree and find that counsel's brief is an appropriate Anders brief. Although the Supreme Court's decision in Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), clarified Anders, eliminating any previously perceived requirement that counsel must raise at least an arguable issue, the court did not suggest counsel may not do so. Counsel has avowed to this court that she has reviewed the entire record, and finding no fundamental error, she has found an issue that is at least arguable as contemplated by her understanding of Anders. Based on counsel's argument and the issue itself, we cannot say that counsel has filed an "advocate's brief" simply because she has raised an arguable issue and that appellant should not have the benefit of this court's review of the record for fundamental error.
In reviewing the arguable issue, however, we conclude the court did not abuse its sentencing discretion. The court imposed the presumptive terms after reviewing the facts relevant to sentencing. See State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978). That the court failed to find appellant's family pressures and obligations to be mitigating circumstances warranting less than the presumptive term does not mean the court abused its discretion. The court was only required to consider the evidence proposed in mitigation, which we presume it did. State v. Everhart, 169 Ariz. 404, 819 P.2d 990 (App. 1991). Moreover, the court made it abundantly clear that it was not punishing appellant for being an alcoholic as counsel
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