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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

# A RIZONA 

# C OURT OF 

# A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appellee ,

v.

SHELBY ALAN SCHAFER , Appellant

.
No. 1 CA

- CR 22

- 0572

Appeal from the Superior Court in Yavapai County

No. P1300CR202100859 The Honorable Michael P. McGill , Judge

AFFIRMED IN PART; REMANDED IN PART

COUNSEL

Arizona Attorney General’s Office , Phoenix By Michael T. O’Toole Counsel for Appellee
Zickerman Law Office, Flagstaff By Adam Zickerman C ounsel for Appellant FILED 2-1-2024STATE v. SCHAFER Decision of the Court

2 MEMORANDUM DECISION Presiding Judge D. Steven Williams delivered the Court’s decision, in which Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

W I L L I A M S , Judge:

¶1 Defendant Shelby Alan Schafer appeals his convictions and sentences for one count of fraudulent schemes and artifices, one count of trafficking in stolen property, and one count of theft of means of transportation

. Schafer’s counsel filed a brief per Anders v. Calif ornia , 3 86 U.S. 738 (1967), and State v. Leon , 104 Ariz. 297 (1969), advising us there are no meritorious grounds for reversal. Schafer was given an opportunity to file a supplemental brief in propria persona but did not do so.
¶2 After reviewing the record, we requested supplemental briefing under Penson v. Ohio , 488 U.S. 75 (198 8) on two issues: (1) w hether the trial c ourt erred in empaneling a jury of less than twelve persons whe n Schafer could have been imprisoned for thirty years, and (2) w hether the

c ourt erred in failing to expressly sentence Defendant on each count for which he was convicted

. ¶3 Having review ed the entire record for reversible error , State v. Clark , 196 Ariz. 530, 537, ¶ 30 (App. 1999) , w e affirm S c hafer’s conviction s, including his seven
- year term of intensive probation on Count 1

. We remand , however, to allow the court to sentence Schafer on Counts 2 and 3

.

FACTUAL AND PROCEDURAL HISTORY
¶4 Scha f er and Kimberly Prince were neighbors

. After Prince’s home burned in 2020, she moved away but stored on her property several persona l items that survived the fire, including an all

- terrain vehicle (“ATV”)

. A nother neighbor, the Fairs , kept an eye on Prince’s stored proper ty

. ¶5 T he Fairs contacted law enforcement when they noticed Prince’s ATV was missing

. Prince provided law enforcement with a description of the ATV along with copies of the title. Prince also reported that the Fairs sent her a photograph of an ATV (which she believed to be hers) on Schafer’s property.STATE v. SCHAFER Decision of the Court

3 ¶6 M onths later , Schafer responded to a Facebook Marketplace ad for a different ATV. S chafer asked the seller if he would be willing to accep t a trade

— the advertised ATV for Schafer ’ s ATV . The seller agreed. A fter the trade , the seller posted a Facebook Marketplace ad for Schafer ’s ATV

. A potential purchaser asked the seller for the ATV’s vehicle identification number ( “ VIN ” )

. T he seller discovered the VIN had been scratched off and report ed the ATV stolen

. Law enforcement impou nded the ATV and confirm ed it was Prince’s after recover ing a portion of the ATV’s VIN

. ¶7 The State charged Schafer with three felonies : Count 1 , fraudulen t schemes and artifices , a class 2 felony ; Count 2 , trafficking in stolen property , a class 3 felony ; and Count 3 , theft of means of transportation , a class 3 felony

. A jury convicted Schafer as charged

. The trial court suspended Schafer’s sentence (on Count 1), placing him on intensive probation for seven years. S c hafer timely appealed

. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12

- 120.21(A)(1), 13

- 4031, and

- 4033(A)(1)

.
DISCUSSION
¶8 Our review of the record show s no reversible error regarding the convictions

. Clark , 196 Ariz. at 541, ¶ 50

. S c hafer was represented by counsel at all times and was present at all critical stages of the proceedings, with the exception o f a portion of the trial on September 22, 2022 , for which counsel waived Schafer’s presence

. See State v. Conner , 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); see also State v. Bohn , 116 Ariz. 500, 503 (1977) (right to be present at critical stages ). The court prop erly instructed the jury of S c hafer’s presumption of innocence, the State’s burden of proof, and the elements of the charged offenses.
¶9 The jury was comprised of eight jurors with two alternates. See A.R.S. § 21

- 102

. Because S c hafer potential ly faced thirty years ’ imprisonment for his charges, twelve jurors would have normally been required

. See A.R.S. § 21

- 102 ( A )

. But the State effectively waived its ability to seek thirty years’ imprisonment , and the trial court waived its ability to sentence Schafer to the same , by empaneling only eight jurors. See State v. Soliz , 223 Ariz. 116, 120, ¶¶ 16

– 18 (2009) ( holding that a d efendant “could not, as a matter of law receive a sentence of thirty years or more . . . once a jury of less than [12] began deliberatio ns .” )

. ¶10 At sentencing, S c hafer was given an opportunity to speak, and the trial court stated on the record the evidence and factors itSTATE v. SCHAFER Decision of the Court

4 considered in imposing a term of probation

. See Ariz. R. Crim. P. 26.9, 26.10. T he probation term was within the statutory range for Count 1 , but not within the statutory range for Counts 2 and 3

. See A.R.S . § 13

- 902(A)(1)

. A lthough the court failed to indicate which of Schafer’s convictions he was being placed on probation for , only Count 1 allowed for a seven
- year term. See A.R.S. § 13

- 902(A)(1 )

– ( 2) ( probation on a class 2 felon y may continue for up to seven years ; probation on a class 3 felon y may continue for up to five years )

. Thus, we affirm S c hafer’s conviction s on all three counts, including the seven
- year term of probation for Count 1. But because the court failed to impose a sentence ( or suspend sentence and impose a term of probation) up on Schafer for either Counts 2 or 3 , we remand to allow the court to do

so

. See A.R.S. § 13

- 701(I).

CONCLUSION
¶11 W e affirm S c hafer’s conviction s, as well as his term of probation for Count 1 . We remand, however, to allow the trial cou r t to impose a sentence (or suspend a sentence and impose a term of probation) for Count s 2 and 3

. ¶12 After this decision’s filing, d efense counsel must inform S c hafer of the outcome of this appeal

. On this court’s motion, S c hafer has thirty days from the dat e of this decision to proceed, if he wishes, with an in propria persona motion for reconsideration or petition for review

.