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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANK NUNEZ, Appellant.

No. 1 CA-CR 20-0165 

Appeal from the Superior Court in Maricopa County

No. CR2018-0138855-001

The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Lawrence S. Matthew

Counsel for Appellant

FILED 12-31-2020
STATE v. NUNEZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Frank Nunez appeals his conviction and sentence for second

degree burglary. After searching the record, Nunez’s defense counsel 

identified no arguable question of law that is not frivolous. Therefore, in 

accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 

104 Ariz. 297 (1969), defense counsel asks this Court to search the record for 

fundamental error. Nunez filed a supplemental brief. After reviewing the 

entire record, we reject the arguments raised in Nunez’s supplemental brief 

and find no error. We affirm his conviction and sentence.

¶2 In August 2018, Nunez came to Doris and Fred Lopez’s door

asking for work. Doris described Nunez as a thin man with gray hair,

wearing an all-black outfit and carrying a black knapsack. After Fred turned 

him away, Nunez walked two houses down and then knocked on C.T.’s 

door. Nunez stood in front of C.T.’s house for several minutes before 

entering the backyard. Fred drove to C.T.’s house and parked on the street 

to get a closer look. Fred saw the arcadia door open in the backyard, so he

called C.T. and 911. Fred observed Nunez exiting the house with a duffle 

bag. C.T. called another neighbor, who joined Fred in following Nunez. 

¶3 A Glendale Police sergeant arrived at C.T.’s house and saw 

Nunez fleeing the scene. Nunez threw two bags over a fence before the 

sergeant apprehended him. Another officer searched Nunez, finding 

Nunez’s wallet, jewelry, coins, and a pocketknife. Nunez admitted to not 

owning the pocketknife, jewelry, or coins. A detective also retrieved the two 

bags that Nunez threw over the fence. The bags contained holsters, coins, 

ammunition, a magazine, and two handguns. C.T.’s wife, R.T., claimed 

ownership of the guns, jewelry, coins, and pocketknife. She clarified that 

Nunez did not have permission to enter the home or take any items. And 

police noticed some damage to the master bedroom doorframe and that 

items were scattered about the bedroom.

¶4 The State charged Nunez with second degree burglary, a class 

3 felony, and misconduct involving weapons, a class 4 felony. The State 
STATE v. NUNEZ

Decision of the Court

3

alleged prior felony convictions and aggravating circumstances. The 

superior court ordered a bifurcated trial on the two charges to minimize 

any risk that Nunez’s prior felony convictions would prejudice the jury. 

¶5 The case proceeded to a jury trial on the burglary charge. The 

police officer, sergeant, and detective testified, as well as the Lopezes and 

R.T. Nunez did not testify. The jury found Nunez guilty as charged but did 

not find either aggravating circumstance.

¶6 Before the second trial began, Nunez pled guilty to 

misconduct involving weapons, with one prior felony conviction, and 

stipulated to a 4.5-year sentence. Nunez’s prior conviction noted in the plea 

deal was for shoplifting, a class 6 felony, from January 11, 2001. Before 

sentencing, the State presented evidence that Nunez’s fingerprints on his 

Department of Corrections packet matched his fingerprints taken after the 

burglary. The court found that the State proved Nunez’s historical prior 

felony convictions and classified him as a category three repetitive offender.

Nunez had prior felony convictions from 2000 for second degree burglary, 

a class 3 felony, and shoplifting, a class 6 felony. Nunez was sentenced to

mitigated terms of 8.5 years for burglary and 4.5 years for misconduct 

involving weapons, to run concurrently. Nunez also had thirty-four days 

of pre-incarceration credit. Nunez timely appealed. We have jurisdiction 

under Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-

4031, and -4033(A)(1).

¶7 The record reveals sufficient evidence from which the jury 

could determine, beyond a reasonable doubt, that Nunez is guilty of second 

degree burglary. The record reflects that the superior court afforded Nunez

all of his constitutional and statutory rights and that the proceedings were 

conducted in accordance with the Arizona Rules of Criminal Procedure. 

Nunez was represented by counsel at all stages of the proceedings and he 

was present at all critical stages. See State v. Conner, 163 Ariz. 97, 104 (1990) 

(right to counsel); see also State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be 

present at critical stages). Nunez had the opportunity to speak during 

sentencing. The court stated on the record the factors it considered in 

imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10.

¶8 Nunez’s supplemental brief challenges his sentence on two 

grounds. Nunez claims the superior court erred in sentencing him as a 

category three repetitive offender because one of his prior convictions was 

too distant in time to qualify as a historical prior felony conviction under 

A.R.S. §§ 13-105(22) and -703. He also argues the superior court improperly 
STATE v. NUNEZ

Decision of the Court

4

“aggravated” his sentence despite the court sentencing him to a less-thanminimum term.

¶9 For a defendant to be sentenced as a category three repetitive 

offender, the defendant must have two or more “historical prior felony 

convictions.” A.R.S. § 13-703(C). Historical prior felony convictions include 

certain class 2 or 3 felonies committed “within the ten years immediately 

preceding the date of the present offense” and certain class 4, 5, or 6 felonies 

committed “within the five years immediately preceding the date of the 

present offense.” A.R.S. § 13-105(22)(b), (c). A defendant’s time spent

incarcerated is excluded from the calculation. Id.

¶10 Nunez committed the first burglary on June 1, 2000 and was 

sentenced on January 11, 2001. Nunez left prison on November 25, 2009. He 

committed the second burglary on August 7, 2018. Excluding incarceration, 

the time between the first and second burglaries is approximately 9 years 

and 3 months, qualifying the first conviction as a historical prior felony 

conviction. See A.R.S. § 13-105(22)(b). The second historical prior felony 

conviction was simply the misconduct involving weapons charge to which 

Nunez pled guilty. Thus, Nunez had the requisite number of historical prior 

felony convictions to qualify as a category three repetitive offender.

¶11 Turning to Nunez’s second argument, we find no error in the 

superior court’s sentencing. The trial court must consider all mitigating 

evidence, but “the weight to be given any factor asserted in mitigation falls 

within the trial court’s sound discretion.” State v. Vermuele, 226 Ariz. 399, 

403, ¶ 15 (App. 2011). Neither the jury nor the superior court found any 

aggravating circumstances. But the court did find two circumstances 

warranting a mitigated sentence. See A.R.S. § 13-703(G). Nunez’s 8.5-year 

sentence falls between the mitigated term of 7.5 years and minimum term 

of 10 years. See A.R.S. 12-703(J) (the sentencing tables denote ranges of 

possible sentences). 

¶12 This Court has read counsel’s brief and searched the record 

for reversible error but has found none. Leon, 104 Ariz. at 300; State v. Clark, 

196 Ariz. 530, 537, ¶ 30 (App. 1999). Accordingly, we affirm Nunez’s

conviction and sentence.

¶13 Defense counsel’s obligations pertaining to Nunez’s 

representation in this appeal have ended. Counsel need do no more than 

inform Nunez of the outcome of this appeal and his future options, unless, 

upon review, counsel finds “an issue appropriate for submission” to the 

Arizona Supreme Court by petition for review. See State v. Shattuck, 140 
STATE v. NUNEZ

Decision of the Court

5

Ariz. 582, 584–85 (1984). On the court’s own motion, Nunez has thirty days 

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

for reconsideration. Nunez also has thirty days from the date of this 

decision to proceed, if he wishes, with a pro per petition for review.