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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROGER PENA, Appellant.

No. 1 CA-CR 15-0440

FILED 1-14-2016

Appeal from the Superior Court in Maricopa County

No. CR2014-145746-001

The Honorable Richard L. Nothwehr, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Paul J. Prato

Counsel for Appellant
STATE v. PENA

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which

Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.

P O R T L E Y, Judge:

¶1 This is 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 Defendant

Roger Pena has advised us that he has searched the entire record, but has 

been unable to discover any arguable questions of law, and has filed a brief 

requesting us to conduct an Anders review of the record. Pena did not take 

the opportunity to file a supplemental brief. 

FACTS1

¶2 Pena was stopped and arrested by a Department of Public 

Safety officer for criminal speeding (100 miles per hour in a 55 miles per 

hour zone) on June 25, 2013. The officer searched him and found a plastic 

baggie containing a green leafy substance in his right pocket; and the 

officer’s experience suggested that the substance was marijuana. Pena was 

read his Miranda2 rights, agreed to talk with the officer and said the 

substance was marijuana.

¶3 Pena was subsequently charged with possession of 

marijuana, but the State requested the charge be reduced to a class 1 

misdemeanor before trial. Pena did not object and the court granted the 

motion, which resulted in a bench trial. At the bench trial, the officer 

testified about the events of the traffic stop, the search, and his discussions 

with Pena. The court also heard from a criminalist, who testified that the 

substance was examined and, in her expert opinion, stated the substance 

was a usable amount of marijuana.

¶4 Pena testified on his own behalf. He testified that he lived

with his parents, a younger brother, and a 23-year-old cousin; that he got 

 

1 We view the facts “in the light most favorable to sustaining the verdict,

and resolve all reasonable inferences against the defendant.” State v. 

Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).

2 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. PENA

Decision of the Court

3

up late, grabbed some pants on the floor, and rushed out the door. He, 

however, recalled that his cousin was the last person to wear the pants 

before he put them on. He also admitted he told the officer the substance 

was marijuana and belonged to a friend, but only because that is what he 

thought the officer wanted to hear. As a result, Pena argued the evidence 

demonstrated there was reasonable doubt and he did not knowingly 

possess the marijuana.

¶5 The court found Pena guilty as charged. Pena’s sentence was 

subsequently suspended and he was placed on unsupervised probation for 

twelve months with monitoring by the adult probation department, and 

given community service, fines and fees. He filed this appeal, and we have 

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, 

and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, 

and -4033(A)(1).

3

DISCUSSION

¶6 We have read and considered the opening brief and have 

searched the entire record for reversible error. We find no reversible error. 

See Leon, 104 Ariz. at 300, 451 P.2d at 881. 

¶7 Pena was properly stopped by the DPS officer because he was 

driving his car at a speed greatly in excess of the posted speed limit. See

State v. Evans, 237 Ariz. 231, 234, ¶¶ 7-8, 349 P.3d 205, 208 (2015). After he 

was arrested for criminal speeding, Pena was lawfully searched incident to 

his arrest, and the marijuana discovered was lawfully seized. See Chimel v. 

California, 395 U.S. 752, 755, 763 (1969) (stating the Fourth Amendment 

recognizes a lawful search incident to arrest can occur without a warrant 

and includes seizing any evidence found on the arrestee’s person to prevent 

its concealment or destruction). 

¶8 Pena was charged with knowing possession of marijuana,

requested a preliminary hearing, and, after the hearing, the trial court found 

there was probable cause for him to stand trial. See A.R.S. § 13-3405(A)(1). 

Our review of the record demonstrates that at the trial, given that the court 

had to determine credibility and the weight to give to the evidence, there 

was substantial evidence demonstrating that Pena knowingly possessed a 

usable amount of marijuana, a class 1 misdemeanor. Moreover, all of the 

 

3 We cite the current version of the applicable statutes absent changes 

material to this decision.
STATE v. PENA

Decision of the Court

4

proceedings were conducted in compliance with the Arizona Rules of 

Criminal Procedure. The record reveals that Pena was represented by 

counsel at all stages of the proceedings, and the sentence imposed was

within the statutory limits.

¶9 After this decision is filed, counsel’s obligation to represent 

Pena in this appeal has ended. Counsel must only inform Pena of the status 

of the appeal and his future options, unless counsel identifies an issue 

appropriate for submission to the Arizona Supreme Court by petition for 

review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 

Pena may, if desired, file a motion for reconsideration or petition for review 

pursuant to the Arizona Rules of Criminal Procedure.

CONCLUSION

¶10 Accordingly, we affirm Pena’s conviction and sentence.