NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LEVI ALES, Appellant.

Nos. CR13-0658 and CR13-0808

Consolidated

Appeal from the Superior Court in Maricopa County

Nos. CR2011-153545-001 and CR2012-141400-001

The Honorable Virginia L. Richter, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kathryn L. Petroff

Counsel for Appellant
STATE v. ALES

Decision of the Court

2

MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.

G O U L D, Judge:

¶1 Levi Shane Ales (“Defendant”) appeals from his conviction

and sentence for one count of misconduct involving weapons in case 

number CR2012-141400-001 and from the determination that he violated his 

probation and disposition in case number CR2011-153545-001. The trial 

court sentenced Defendant to twelve years’ incarceration in case CR2012-

141400-001, and to a consecutive term of one-and-one-half years’ 

incarceration for violating probation in case number CR2011-153545-001. 

¶2 Defendant’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 this Court that after a search of the entire appellate record, 

no arguable ground exists for reversal. Defendant was granted leave to file 

a supplemental brief in propria persona, and he has not done so. 

¶3 Our obligation in this appeal is to review “the entire record 

for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 

(App. 1999). 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), 13-4031 and 13-4033(A)(1) (West 2014).

1 

¶4 Finding no reversible error, we affirm.

PROCEDURAL HISTORY

¶5 On July 30, 2012, Defendant was sentenced to a term of 

probation in Maricopa County Case No. CR2011-153545-001 (the 

“Probation Case”). Three days later, on August 2, 2012, Defendant was 

arrested in Maricopa County Case No. CR2012-141400-001 (the “New 

 

1 Unless otherwise specified, we cite to the current version of the 

applicable statutes because no revisions material to this decision have 

occurred.
STATE v. ALES

Decision of the Court

3

Case”). Defendant was charged in the New Case with one count of 

misconduct involving weapons and one count of possession or use of 

dangerous drugs. Based on the charges in the New Case, a petition to 

revoke Defendant’s probation was filed in the Probation Case. 

¶6 The trial court continued the violation hearing in the 

Probation Case while Defendant was awaiting trial in the New Case. The 

New Case eventually went to trial in August 2013. 

¶7 At the close of the evidence in the New Case, the jury was 

initially unable to reach a verdict for the charge of misconduct involving 

weapons. The trial court gave the jury an impasse instruction and asked 

the jury to further deliberate. The jury then returned a verdict finding 

Defendant guilty. 

¶8 Following the guilty verdict in the New Case, a jury 

determined Defendant had two historical prior felony convictions, one nonhistorical felony conviction, and was on probation for a felony conviction 

at the time of the offense.2 

¶9 Based on Defendant’s conviction in the New Case, the trial 

court determined that Defendant was in automatic violation of his 

probation in the Probation Case. Both the New Case and the Probation Case 

were set for sentencing and disposition in September 2013. 

¶10 In the New Case, the trial court sentenced Defendant to

twelve years’ incarceration and awarded him 409 days of pre-sentence 

incarceration credit. In the Probation case, the trial court revoked 

Defendant’s probation and sentenced him to one-and-one-half years’

incarceration with credit for 258 days’ time-served. The court ordered the 

sentence in the Probation Case to be served consecutively to the sentence in 

the New Case. 

DISCUSSION

¶11 We review the record for fundamental error. Clark, 196 Ariz. 

at 537, ¶ 30, 2 P.3d at 96. We view the evidence in the light most favorable 

to sustaining the convictions and resulting sentences, and any reasonable 

inferences are resolved against the defendant. State v. Guerra, 161 Ariz. 289, 

 

2 Prior to trial for the alleged prior felony convictions, the State moved 

to dismiss count two, possession or use of dangerous drugs, without 

prejudice. 
STATE v. ALES

Decision of the Court

4

293, 778 P.2d 1185, 1189 (1989); State v. Tison, 129 Ariz. 546, 552, 633 P.2d 

355, 361 (1981).

I. Conviction in New Case and Revocation in Probation Case

¶12 The evidence presented at trial in the New Case showed that 

on August 2, 2012, Mesa Police Department (“MPD”) Detective C. received 

a tip that criminal activity was taking place inside a vehicle; the tip included 

a description of the vehicle, its occupants, and its location. Detective C. and 

other police officers located the vehicle and followed it. After watching the 

vehicle make several traffic violations, Detective C. stopped the vehicle at a

gas station. 

¶13 As Detective C. approached the vehicle, he observed a 

camping chair bag lying next to the “driver’s left leg.” The driver, who was 

later identified as Defendant, provided his name and date of birth, but was 

unable to produce any form of identification. 

¶14 During the course of the traffic stop, Detective C. learned that 

Defendant’s license was suspended; as a result, he arrested Defendant. 

During a subsequent search of the vehicle, another officer removed the 

camping chair bag and discovered a loaded twelve-gauge shotgun (“the 

shotgun”) inside. Detective C. also found a tan bag containing eleven 

twelve-gauge shotgun shells and a black backpack containing a socket 

wrench, a folding knife, and a wallet with two of Defendant’s state 

identification cards. 

¶15 Detective C. transported Defendant to jail where he was 

Mirandized and questioned. Defendant claimed that he recently purchased 

the vehicle, and that the camping bag was already inside the car when he 

purchased it. However, Defendant could not remember from whom he 

purchased the car or how much he paid for the car. Defendant also 

admitted to Detective C. that he was a prohibited possessor and currently 

on probation. 

¶16 Accordingly, based on our review of the evidence presented 

at trial, we conclude there was sufficient evidence supporting the jury’s 

guilty verdict as to the crime of misconduct involving weapons. 

¶17 We also find no error in the trial court decision to read an 

impasse instruction to the jury. Whether a jury is at an impasse is an 

important determination to be made by the trial court because prematurely 

giving an impasse instruction may also be a form of coercion. See State v.

Huerstel, 206 Ariz. 93, 99, ¶ 17, 101, ¶ 25, 75 P.3d 698, 704, 706 (2003)
STATE v. ALES

Decision of the Court

5

(reversing on the basis of coercion, in part because the trial court erred in 

giving an impasse instruction before the jury indicated it had reached an 

impasse). Arizona Rule 22.4 of Criminal Procedure permits the trial court 

when advised by the jury that it has reached an impasse in its deliberations, 

“to inquire how it can assist the jury in its deliberations.” State v. Andriano, 

215 Ariz. 497, 509, ¶ 55, 161 P.3d 540, 552 (2007).

¶18 In this case, the jury notified the trial court the deliberations 

were at a deadlock, thus requiring an impasse instruction to further assist

the jury in its deliberations. Neither party objected. The jury returned a 

verdict after the impasse instruction was given. We find no error.

II. Violation of Probation

¶19 The trial court also was correct in determining that Defendant 

violated his probation in the Probation Case. This determination was 

properly based on Defendant’s conviction in the New Case. See Rule 27.8(e) 

Ariz. R. Crim. P. (providing for automatic violation of probation based on 

a determination of guilt in a new case); State v. Taylor, 187 Ariz. 567, 569, 

931 P.2d 1077, 1079 (App. 1996). 

III. Sentencing

¶20 The trial court did not impose a flat-time sentence in 

Defendant’s New Case. Rather, the court ordered Defendant to serve a 

term of community supervision pursuant to A.R.S. § 13-603(I). Pursuant to 

A.R.S. § 13-708(C), a defendant sentenced for a felony while on probation 

for another felony must serve a flat-time sentence; he is not for eligible for 

release after serving eighty-five percent of a prison sentence. See A.R.S. § 

41-1604.07(A). 

¶21 Thus, pursuant to A.R.S. § 13-708(C), the court’s failure to 

sentence Defendant to flat-time in the New Case constituted an illegally 

lenient sentence. “Courts have [the] power to impose sentences only as 

authorized by statutes and within the limits set down by the legislature.”

State v. Rosario, 195 Ariz. 264, 268, ¶ 27, 987 P.2d 226, 230 (App. 1999) 

(quoting State v. Harris, 133 Ariz. 30, 31, 648 P.2d 145, 146 (App. 1982)).

However, because the State has not filed an appeal or a cross-appeal on this 

issue, we do not have jurisdiction to address it. State v. Dawson, 164 Ariz. 

278, 286, 792 P.2d 741, 749 (1990). 

¶22 Additionally, the trial court ordered Defendant’s sentence in 

the Probation Case to be served consecutively to the sentence imposed in 

the New Case, and awarded Defendant credit for 258 days served prior to 
STATE v. ALES

Decision of the Court

6

sentencing. Again, this was error. Given the consecutive sentences 

imposed, Defendant could not receive credit for time served on both the 

Probation case and the New Case. State v. Cuen, 158 Ariz. 86, 87-88, 761 P.2d 

160, 161-62 (App. 1988). Nonetheless, because the State has not filed an 

appeal or cross-appeal on this issue, we do not have jurisdiction to address 

it. Dawson, 164 Ariz. at 286, 792 P.2d at 749.

CONCLUSION

¶23 We have read and considered counsel’s brief, carefully 

searched the entire record for reversible error and found none. Clark, 196 

Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in 

compliance with the Arizona Rules of Criminal Procedure and substantial 

evidence supported the finding of guilt. Defendant was present and 

represented by counsel at all critical stages of the proceedings. At 

sentencing, Defendant and his counsel were given an opportunity to speak.

¶24 Accordingly, Defendant’s convictions and sentences are 

affirmed. Counsel’s obligations pertaining to Defendant’s representation 

in this appeal have ended. Counsel need do nothing more than inform 

Defendant of the status of the appeal and his future options, unless 

counsel’s review reveals an issue appropriate for submission to the Arizona 

Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-

85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the 

date of this decision to proceed, if he so desires, with an in propria persona

motion for reconsideration or petition for review.