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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY LEE KELLY, JR., Appellant.

No. 1 CA-CR 19-0624 

Appeal from the Superior Court in Maricopa County

No. CR 2019-005636-001

The Honorable Dean M. Fink, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mark E. Dwyer

Counsel for Appellant

FILED 5-21-2020
STATE v. KELLY

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 This appeal is presented to us pursuant to Anders v. California, 

386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel 

has searched the record on appeal and advised us there are no meritorious 

grounds for reversal. Kelly was given the opportunity to file a supplemental 

brief but did not do so. Our obligation is to review the entire record for 

reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing 

the evidence in the light most favorable to sustaining the conviction and 

resolving all reasonable inferences against Kelly, State v. Guerra, 161 Ariz. 

289, 293 (1989). 

BACKGROUND

¶2 One evening, Kelly and his wife got in an altercation in their 

home, which they shared with their children. The victim, their 12 year old 

daughter, felt scared and called 911 to get help for her mother. The victim 

reported to the 911 operator that in response, her dad choked her, grabbed 

her by her hair, which was up in a bun, and then bent her fingers back until 

they hurt. 

¶3 When police arrived at the house, the victim recounted the 

same event to the detective. She reported to the detective that when he was 

choking her, she couldn’t breathe and thought she was dying. 

¶4 The State charged Kelly with aggravated assault, a domestic 

violence offense and class 6 felony. Prior to trial, the State reduced the 

charge to a class 1 misdemeanor. During a bench trial, the victim recanted 

her story, stating repeatedly that she lied to the police. 

¶5 After hearing all of the evidence and taking the matter under 

advisement, the court found Kelly guilty of aggravated assault, a domestic 

violence offense and class 1 misdemeanor. The superior court suspended 

the imposition of sentence, placing Kelly on supervised probation for a term 

of 30 months. Kelly timely appealed. 
STATE v. KELLY

Decision of the Court

3

DISCUSSION

¶6 After a thorough review of the record, we find no reversible 

error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Kelly was present and 

represented by counsel at all critical stages of the proceedings. The evidence 

presented supports the conviction, and the sentence imposed falls within 

the range permitted by law. As far as the record reveals, these proceedings 

were conducted in compliance with the Arizona Rules of Criminal 

Procedure and Kelly’s constitutional and statutory rights. Therefore, we 

affirm Kelly’s conviction and sentence.

¶7 Unless defense counsel finds an issue that may be 

appropriately submitted to the Arizona Supreme Court, his obligations are 

fulfilled once he informs Kelly of the outcome of this appeal and his future 

options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Kelly has 30 days 

from the date of this decision to proceed, if he wishes, with a pro per motion

for reconsideration or petition for review.