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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DELBERT FRED BRECHLER

, Appellant

.

No. 1 CA

- CR 14

- 0601

Appeal from the Superior Court in Mohave County

No. S8015CR201300937
The Honorable Rick A. Williams

, Judge

AFFIRMED IN PART; VACATED IN PAR T

COUNSEL

Arizona Attorney General’s Office , Phoenix By Andrew S. Reilly Counsel for Appellee

Mohave County Legal Advocate’s Office

, Kingman By Jill L. Evans
C ounsel for AppellantSTATE v. BRECHLER
Decision of the Court

2 MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.

T H O M P S O N

, Judge:

¶1 This case comes to us as an appeal under Anders v. California

, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969).
Counsel for Delbert Fred Brechler (defend ant ) has filed a brief requesting
that this court conduct an Anders review of the record. In that brief, counsel
asserts that defendant ’ s conviction and sentence for DUI with a blood
alcohol concentration ( BAC ) over .08 % must be vacated because it is a lesser
included offense to DUI with BAC ov er .15 %

. We ordered the parties to
submit supplemental briefs addressing the issue

. In its supplemental brief,
the state concedes that per se DUI with BAC over .08 % is a lesser included
offense of DUI with a BAC over .15 % and that the conviction and sentence
for the lesser included offense should be vacated. Defendant has been afforded an opport unity to file a supplemental brief in propria persona , but
he has not done so.

¶2 On July 21, 2013, defendant was in a car accident on Route 66 in Mohave County involving a Ford Ranger driven by seventeen

- year

- old C.R. and occupied by J.S. Defendant ’s Volvo h it the Ford Ranger from behind as both vehicles traveled down the road, causing the Ford Ranger to roll into the median. J.S. was abl e to get out of the Ford Ranger but was injured in the accident. C.R. died at the hospital that night. D PS officers
arrived at the scene and d efendant admitted that he was the driver of the
Volvo. A DPS officer observed several signs of defendant ’s impairment and conducted a series of standardized field sobriety tests, all of which he failed

. The o fficer arrested defendant and conduct ed breathalyzer test s ; defendant registered a .205 % and a .209 % BAC . The results of defendant’ s blood draw
showed a .208 % and .209 % BAC.

¶3 The state charged defend ant with one count of manslaught er, a class 2 dangerous felony ( death of C.S. ) ; one count of aggravated assault with a deadly weapon, a class 3 dangerous felony ( as to J.S. ) ; and three counts of misdemeanor DUI (under the influence of intoxicating liquor,

BAC over .08 % , and extreme DUI with BAC over .15 % ). Defend ant was not present at trial , and the court issued a bench warrant

. The jury foundSTATE v. BRECHLER
Decision of the Court

3 defend ant guilty on all charges. The jury also found the following aggravating factors as to the manslaughter: 1) emotional harm to the family of C.R.; 2) BAC over .15 % ; 3) the youth of the victi m ; and 4) defendant had a previous DUI offense within the past seven years

. As to the aggravated assault, the jury found the following aggravating factors: 1) emotional harm to the victim; 2) BAC over .15 % ; and 3) defendant’s DUI convictio n within the past seven years. The trial court found the following mitigating factors: no prior felony convi ctions and defend ant ’s role as caretaker for his parents.

¶4 Defend ant was present during sentencing. In light of all aggravating and mitigating factors, the trial cou rt sentenced defend ant to an aggravated sentence of eighteen years for mansla ughter (count 1 ) to run consecutively to an aggravated sentence of ten years for aggravated assault (count 2 )

. The court ordered the sentence s for counts 1 an d 2 to run consecutively to the DUI sentences. For each of the three counts of DUI (counts 3, 4, and 5 ) , the trial court sentenced defendant to sixty days in jail with credit for sixty days served, all to run concurrently.

¶5 We have read and considered defenda nt ’s Anders brief as well as the parties’ supplemental briefs , and we have searched the entire record
for reversible error. See Leon , 104 Ariz. at 300

, 451 P.2d at 881. The state
concedes in its supplemental brief that defendant’s conviction for per se DU I with a BAC over .08% is a lesser included offense of extreme DUI with a
BAC over .15% and that defendant’s sentence and conviction for count 4 should be vacated. We agree. See State v. Solis , 236 Ariz. 242, 249 ¶ 24, 338 P.3d 982, 989 (App. 2014) (“charg es of driving with a BAC of .08 or more
and extreme DUI with a BAC of .15 are lesser

- included offenses of DUI with a BAC of .20 or more, and double jeopardy bar[s] . . . convictions for those charges.”). Otherwise, a ll of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory limits.

¶6 W e affirm defendant’s conviction s and sentences for counts 1, 2, 3, and 5. We vacate defendant’s conviction and sentence fo r count 4 , DUI

w ith BAC over .08 %

. Pursuant to State v. Shattuck , 140 Ariz. 582, 584

- 85, 684 P.2d 154, 156

- 57 (1984), defendant’s counsel’s obligations in this appeal are at an end. Defendant has thirty days from the date of this decision in whichSTATE v. BRECHLER
Decision of the Court

4 to proceed, if he so de sires, with an in propria persona motion for reconsideration or petition for review.