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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 ALLEN MUEHLHAUSEN, Appellant.

                              No. 1 CA-CR 20-0146
                                 FILED 11-10-2020


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201501331
                The Honorable Derek C. Carlisle, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
                        STATE v. MUEHLHAUSEN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.


C R U Z, Judge:

¶1             This appeal was filed in accordance with Anders v. California,
386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for David
Allen Muehlhausen has advised this court that counsel found no arguable
questions of law and asks us to search the record for fundamental error.
Muehlhausen was convicted of four counts of sale of a dangerous drug
(methamphetamine), Class 2 felonies; one count of sale of a narcotic drug
(heroin), a Class 2 felony; one count of possession of a dangerous drug for
sale (methamphetamine), a Class 2 felony; and one count of possession of a
narcotic drug for sale (heroin), a Class 2 felony. Muehlhausen filed a
supplemental brief in propria persona, which the court has considered. After
reviewing the record, we affirm Muehlhausen’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Muehlhausen. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3            In 2015, a Mohave County Sheriff’s deputy arrested a drug
dealer, B.J. B.J. agreed to assist police in their investigation of other drug
dealers in exchange for a more lenient sentence.                B.J. identified
Muehlhausen as a drug dealer, and police began using B.J. for controlled
drug buys with Muehlhausen.

¶4             In August 2015, while under surveillance, Muehlhausen sold
B.J. a quarter ounce of methamphetamine for $200.00. In September 2015,
Muehlhausen sold B.J. a half ounce of methamphetamine for $350.00. On
October 7, 2015, Muehlhausen sold B.J. an ounce of methamphetamine for
$500.00.    Later that month Muehlhausen sold B.J. two ounces of
methamphetamine and two to three grams of heroin for $1200.00.

¶5          Police officers executed a search warrant at Muehlhausen’s
residence on October 28, 2015.       They found drug paraphernalia,
methamphetamine, heroin, and cash. After waiving his Miranda rights,


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                        STATE v. MUEHLHAUSEN
                           Decision of the Court

Muehlhausen told police that he was a drug dealer. He also confessed that
he had more drugs in a toolbox in the back of his vehicle. Police searched
the vehicle and found large amounts of methamphetamine and heroin.

¶6            The State charged Muehlhausen with five counts of sale of a
dangerous drug (methamphetamine), Class 2 felonies; one count of sale of
a narcotic drug (heroin), a Class 2 felony; one count of possession of a
dangerous drug for sale (methamphetamine), a Class 2 felony; one count of
possession of a narcotic drug for sale (heroin), a Class 2 felony; and one
count of possession of drug paraphernalia, a Class 6 felony. The State
alleged that Muehlhausen had four prior convictions and filed an allegation
of aggravating factors.

¶7            Muehlhausen absconded, and he was tried in absentia. On
the State’s motion, Counts 2 (sale of methamphetamine) and 10 (possession
of drug paraphernalia) were dismissed with prejudice. A jury convicted
Muehlhausen as charged. The State did not proceed with a trial on the
aggravating circumstances. In addition, the State withdrew its allegation
of prior felony convictions.

¶8             Eventually Muehlhausen was apprehended and he was
present for sentencing in 2019. The superior court found three mitigating
factors and no aggravating factors. The court imposed minimum sentences
of five calendar years in prison for each of the four convictions for sale of
methamphetamine (renumbered Counts 1-4), to be served consecutively.
The court sentenced Muehlhausen to the minimum sentence of four years
in prison for sale of heroin (Count 5), to be served concurrently with Count
4 and consecutively to Count 3. The court sentenced Muehlhausen to the
minimum sentence of five calendar years in prison for possession of
methamphetamine for sale (Count 6), to be served consecutively to Count
4. The court sentenced Muehlhausen to the minimum sentence of four
years in prison for possession of heroin for sale (Count 7), to be served
concurrently with Count 6 and consecutively to Count 4. The court gave
Muelhausen credit for 197 days of presentence incarceration.

¶9            Muelhausen timely appealed, and we have jurisdiction
pursuant to Arizona Constitution Article 6, Section 9, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A), 13-4031, and -4033(A).1



1      This court has an independent duty to determine whether we have
jurisdiction. State v. Raffaele, __ Ariz. __, __, ¶ 9, 471 P.3d 685, 689 (App.



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                        STATE v. MUEHLHAUSEN
                           Decision of the Court

                               DISCUSSION

¶10           We have reviewed the entire record for reversible error. See
State v. Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for
Muehlhausen has advised this court that after a diligent search of the record
counsel has found no arguable question of law.

¶11            In his supplemental brief Muehlhausen argues the superior
court illegally enhanced and aggravated his sentences because the court
ordered five of his sentences to be served consecutively and did so without
a jury finding. We disagree. The superior court found that no aggravating
factors had been proven and sentenced Muehlhausen to minimum
sentences on all seven counts. The court had the discretion to order the
sentences be served consecutively. See A.R.S. § 13-711(A). No jury
determination was required.

¶12          Muehlhausen argues that he was wrongly convicted of
Counts 6 and 7 because he did not sell drugs on October 28, 2015.2 Count 6
was for possession of a dangerous drug for sale (methamphetamine) and
Count 7 was for possession of a narcotic drug for sale (heroin). Neither
charge was for selling drugs—the charges arose from the search of



2020). The record reflects that Muehlhausen absconded after the superior
court granted him furlough in 2016, he was tried in absentia and convicted
in May 2019, he was arrested in Las Vegas in December 2019, and he was
sentenced in February 2020, more than ninety days after conviction. See
A.R.S. § 13-4033(C) (“A defendant may not appeal under subsection A,
paragraph 1 or 2 if the defendant’s absence prevents sentencing from
occurring within ninety days after conviction and the defendant fails to
prove by clear and convincing evidence at the time of sentencing that the
absence was involuntary.”). However, for the “implied waiver of a
defendant’s constitutional right to appeal under § 13-4033(C) to become
effective,” the superior court must make “a finding that the waiver was
knowing, voluntary, and intelligent.” Raffaele, __ Ariz. at __, ¶ 12, 471 P.3d
at 689. Here, the superior court made no finding as to whether
Muehlhausen knowingly, voluntarily, and intelligently waived his right to
appeal by delaying sentencing by more than ninety days. Accordingly, we
have jurisdiction. See id. at __, ¶¶ 14-15, 471 P.3d at 690.
2       Counsel’s Anders brief wrongly states that Muehlhausen was
charged with seven counts of sale of methamphetamine (instead of five)
and fails to mention that he was charged with one count of possession of
methamphetamine for sale.


                                      4
                        STATE v. MUEHLHAUSEN
                           Decision of the Court

Muehlhausen’s residence and vehicle on October 28, 2015, and sufficient
evidence supported the convictions.

¶13            Muehlhausen also argues that the superior court erred by
applying presentence incarceration credit only to his sentence for Count 1.
However, presentence incarceration credit is applied to only one of a
defendant’s sentences if consecutive sentences are imposed. State v. Jackson,
170 Ariz. 89, 91, 94 (App. 1991). We find no error.

¶14            Muehlhausen argues that the superior court’s sentences were
illegal because he was given calendar year sentences and because he was
ordered to do community supervision at the end of those sentences. We
disagree. The court ordered Muehlhausen to serve calendar year sentences
for his methamphetamine convictions pursuant to A.R.S. § 13-3407(E)
(minimum sentence for possessing methamphetamine for sale or selling
methamphetamine is five calendar years). Community supervision is
consecutive to imprisonment, A.R.S. § 13-603(I), and is not equivalent to
imprisonment. State v. Cowles, 207 Ariz. 8, 10, ¶ 9 (App. 2004). “The plain
language of A.R.S. section 13-603(I), read in conjunction with the related
statutes, indicates the Legislature’s intent to require a term of community
supervision for all prisoners, whether or not they are eligible for early
release.” State v. Jenkins, 193 Ariz. 115, 119, ¶ 11 (App. 1998). “In the case
of a flat-time sentence, the term of community supervision necessarily
begins on the sentence expiration date.” Id. at 120, ¶ 13. The superior
court’s imposition of calendar year sentences for Muehlhausen’s
methamphetamine convictions and imposition of community supervision
was not illegal.

¶15            Muehlhausen complains that the superior court mentioned
his drug addiction during sentencing, citing a portion of the sentencing
transcript where his own attorney, not the court, asked the court to consider
Muehlhausen’s drug addiction as a mitigating factor. The court then, as
requested, found that Muehlhausen’s drug addiction was one of three
mitigating factors. We find no error. Muehlhausen also complains that the
court failed to find additional mitigating factors. However, the court
imposed minimum sentences and additional mitigating factors would not
have helped Muehlhausen, even if they had been found by the court. We
find no error.

¶16           We have read and considered counsel’s brief and the
supplemental brief and fully reviewed the record for reversible error, see
Leon, 104 Ariz. at 300, and find none. All of the proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. So far as the


                                      5
                        STATE v. MUEHLHAUSEN
                           Decision of the Court

record reveals, counsel represented Muehlhausen at all stages of the
proceedings, and the sentences imposed were within the statutory
guidelines. We decline to order briefing and affirm Muehlhausen’s
convictions and sentences.

¶17           Upon the filing of this decision, defense counsel shall inform
Muehlhausen of the status of the appeal and his future options. Counsel
has no further obligations, 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). Muehlhausen
shall have thirty days from the date of this decision to proceed, if he desires,
with a pro per motion for reconsideration or petition for review.

                                CONCLUSION

¶18          For the foregoing reasons, we affirm Muehlhausen’s
convictions and sentences.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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