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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

Counsel for Appellant

FILED 2-1-2024
STATE 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. California, 386 

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 (1988) on two issues: (1) whether 

the trial court erred in empaneling a jury of less than twelve persons when

Schafer could have been imprisoned for thirty years, and (2) whether the

court erred in failing to expressly sentence Defendant on each count for 

which he was convicted.

¶3 Having reviewed the entire record for reversible error, State 

v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), we affirm Schafer’s convictions, 

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 Schafer and Kimberly Prince were neighbors. After Prince’s 

home burned in 2020, she moved away but stored on her property several 

personal items that survived the fire, including an all-terrain vehicle 

(“ATV”). Another neighbor, the Fairs, kept an eye on Prince’s stored 

property.

¶5 The 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 Months later, Schafer responded to a Facebook Marketplace 

ad for a different ATV. Schafer asked the seller if he would be willing to 

accept a trade—the advertised ATV for Schafer’s ATV. The seller agreed.

After 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”). The seller discovered the VIN had been

scratched off and reported the ATV stolen. Law enforcement impounded 

the ATV and confirmed it was Prince’s after recovering a portion of the 

ATV’s VIN.

¶7 The State charged Schafer with three felonies: Count 1,

fraudulent 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. Schafer 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 shows no reversible error regarding 

the convictions. Clark, 196 Ariz. at 541, ¶ 50. Schafer was represented by 

counsel at all times and was present at all critical stages of the proceedings, 

with the exception of 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 properly 

instructed the jury of Schafer’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 Schafer potentially 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 defendant “could 

not, as a matter of law receive a sentence of thirty years or more . . . once a 

jury of less than [12] began deliberations.”).

¶10 At sentencing, Schafer was given an opportunity to speak, 

and the trial court stated on the record the evidence and factors it 
STATE v. SCHAFER

Decision of the Court

4

considered in imposing a term of probation. See Ariz. R. Crim. P. 26.9, 26.10.

The 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).

Although 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 felony may continue for 

up to seven years; probation on a class 3 felony may continue for up to five

years). Thus, we affirm Schafer’s convictions 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) 

upon 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 We affirm Schafer’s convictions, as well as his term of 

probation for Count 1. We remand, however, to allow the trial court to 

impose a sentence (or suspend a sentence and impose a term of probation)

for Counts 2 and 3.

¶12 After this decision’s filing, defense counsel must inform 

Schafer of the outcome of this appeal. On this court’s motion, Schafer has 

thirty days from the date of this decision to proceed, if he wishes, with an 

in propria persona motion for reconsideration or petition for review.