Opinion
No. 2 CA-CR 2018-0245
08-14-2019
THE STATE OF ARIZONA, Appellee, v. CEZAN C. ARMENTA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Robert A. Kerry, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20153960003
The Honorable Deborah Bernini, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee Robert A. Kerry, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Following a jury trial, Cezan Armenta was convicted of six counts of sale of a dangerous drug. The trial court found Armenta had three historical prior felony convictions and sentenced him to concurrent, presumptive prison terms of 15.75 years. Counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), stating he had reviewed the record and found no arguable question of law to raise on appeal. Consistent with State v. Clark, 196 Ariz. 530, ¶ 32 (App. 1999), he provided "a detailed factual and procedural history of the case with citations to the record" and asked us to search the record for fundamental error. Armenta filed a supplemental brief. In reviewing the record pursuant to Anders, we discovered an arguably meritorious issue warranting further review. We ordered counsel to file a supplemental opening brief addressing whether Armenta was denied his constitutional right to testify on his own behalf at trial.
The jury also found beyond a reasonable doubt that Armenta had committed the offenses while on parole, in the presence of an accomplice and for pecuniary gain. Additionally, Armenta pled guilty to possession of a weapon by a prohibited possessor.
In the supplemental opening brief, counsel also addressed the issues Armenta raised in his supplemental pro se brief.
¶2 We review the evidence in the light most favorable to sustaining Armenta's convictions. See State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). So viewed, the evidence established that Armenta sold methamphetamine to an undercover police officer on six separate occasions in August and September 2015 in amounts ranging from one-eighth ounce to one-half pound, and admitted to the undercover officer that he sold, rather than used, drugs.
Right to Testify
¶3 Armenta maintains that by granting the state's motion in limine prohibiting any reference to a confidential informant, the trial court denied him the opportunity to raise the "critical" defense of entrapment. He also contends the court denied him a fair trial by arbitrarily applying Rule 15.2(b), Ariz. R. Crim. P., the rule that requires timely disclosure of the entrapment defense. He further maintains the court improperly concluded entrapment could not be proved, thus improperly precluding his testimony to support such a defense.
¶4 At a November 2017 pretrial hearing on the state's motion in limine, the trial court ruled there would be no testimony about a "tip," a "confidential informant," a "source," or "anything that in any way is a negative suggestion . . . Armenta was previously involved in other criminal activity." Noting that any information related to a "source" was not relevant to the charges, the court stated it would only permit testimony that the police "received some information and they acted on the information." At that same hearing, the court expressly directed Armenta to decide before trial if he intended to assert an entrapment defense, an instruction his attorney, Paul Gattone, acknowledged; Armenta raised no such defense before trial.
¶5 At the conclusion of the second day of trial, after the state had rested "subject to a review of exhibits" and after the trial court had denied Armenta's motion for judgment of acquittal, the court explained to Armenta: the state could ask about his prior convictions if he elected to testify; the decision whether to testify was up to him; and because the state had rested, he had to decide "now" if he would testify. Armenta responded, "All right. Then I'm just going to decide not to [testify]." He confirmed he had conferred with his attorney about his decision and Gattone similarly stated he had advised Armenta not to testify and explained that, because that decision involves a constitutional right, "telling a client not to testify isn't something that [he] take[s] lightly." The court again asked Armenta, "And in the end you've elected not to testify, correct?" and he responded, "Yeah," and told the court, "Thank you."
¶6 The following day Armenta asked the trial court if it was too late for him to testify and if the court would give a jury instruction on entrapment if he were to present "slight evidence" of the defense, which he then described to the court. The court stated it was going to treat the evidence Armenta proffered as an offer of proof: the undercover officer had called Armenta urging and inducing him to sell the officer drugs; those telephone calls "were never recorded but [were] on the phone records"; the investigation "started with a lady that was [Armenta's] friend who was also calling [Armenta] multiple times and asking [him] to sell narcotics . . . to the officer," who would help her financially.
¶7 The trial court reminded Armenta that the state would object to such testimony as irrelevant, an objection the court would grant, and that the jury would then be permitted to learn about his prior convictions. Gattone likewise pointed out that if Armenta testified, he would "be opening himself up to all sorts of cross-examination as to [his] propensity towards" selling drugs. Gattone explained that because the court had previously entered a ruling prohibiting any testimony about a confidential informant, Armenta would not "have much he could say that could benefit his situation." The court told Armenta, "[T]he testimony you want to offer is not going to be allowed for a number of reasons. Part of it was litigated in the pretrial motions. Part of it is the current case law. Part of it is that entrapment was never disclosed." The court stated, "[Y]ou're not going to be allowed to present to this jury any testimony that you were entrapped, a little bit of it or a whole lot of it. . . . under the facts in this case." The court also pointed out that if Armenta had timely notified the state he intended to present an entrapment defense, it would have "completely . . . . changed how the State tried [its] case." Armenta then responded, "Okay. Those are the only questions I had."
¶8 We disagree with Armenta that he was denied the right to testify, and instead conclude he voluntarily made that decision. The record shows that he decided not to testify after the trial court explained that he would be prohibited from testifying about the confidential informant, testimony it previously had precluded, and that he had not presented evidence of entrapment. Nor does the record show Armenta demanded to testify against the advice of his attorney. Cf. State v. Tillery, 107 Ariz. 34, 37-38 (1971) (judgment only reversed based on defendant's deprivation of right to testify if defendant "demanded the right to take the stand against the advice of his attorney"). To the contrary, Gattone clearly stated in Armenta's presence that the decision to testify was "totally in [his] control," although he advised against doing so, after which Armenta made his own decision.
¶9 And we find no error in the trial court's application of the entrapment defense to the facts here, nor does Armenta meaningfully establish that any such error occurred. The facts Armenta presented in his offer of proof did not establish the requisite elements in the entrapment statute, A.R.S. § 13-206, nor did he try to tie the proffered evidence to those elements in a meaningful way. Rather, his statements constituted little more than an allegation that entrapment occurred because an undercover officer contacted him and his friend asked him to sell narcotics to the officer.
Section 13-206 provides:
A. It is an affirmative defense to a criminal charge that the person was entrapped. To claim entrapment, the person must admit by the person's testimony or other evidence the substantial elements of the offense charged.
B. A person who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence:
1. The idea of committing the offense started with law enforcement officers or their agents rather than with the person.
2. The law enforcement officers or their agents urged and induced the person to commit the offense.
3. The person was not predisposed to commit the type of offense charged before the law enforcement officers or their agents urged and induced the person to commit the offense.
C. A person does not establish entrapment if the person was predisposed to commit the offense and the law enforcement officers or their agents merely provided the person with an opportunity to commit the offense. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining if a person has proven entrapment.
We cite the current version of the statutes in this decision, as they have not changed in relevant part since Armenta committed his offenses.
Notably, the undercover officer testified that Armenta had told him he sold rather than used drugs, and detailed Armenta's quick and repeated access to illegal drugs during the multiple sales of which he was convicted. This belies any suggestion that Armenta was not "predisposed to commit the type of offense charged" before law enforcement officers induced him to do so. See § 13-206(B)(3), (C).
¶10 Nor did the trial court improperly apply Rule 15.2(b) and (d), which require the timely disclosure of an entrapment defense. As previously mentioned, the court had expressly prohibited any testimony about a confidential informant and had warned Armenta that he could not raise an entrapment defense on "the morning of trial," much less after the state rested, because belatedly introducing a new defense theory would have significantly changed the way the state tried its case. Although preclusion of evidence for lack of disclosure is a "sanction of last resort," State v. Talmadge, 196 Ariz. 436, ¶ 17 (2000), it is appropriate when the evidence introduces an "entirely new defense theory" and allowing that theory to be presented would "cause[] a significant disadvantage to the state," State v. Ramos, 239 Ariz. 501, ¶¶ 12-13 (App. 2016). In summary, we reject Armenta's assertion that he was denied the right to testify, but instead find he voluntarily decided not to testify, and thus conclude he is not entitled to relief on this claim.
To the extent Armenta argues for the first time in his reply brief that structural error occurred on this ground, we do not address this wholly unsupported claim and note that we find no error—fundamental, structural, or otherwise.
Motions for New Counsel
¶11 Armenta next argues the trial court abused its discretion in denying two of his nine motions seeking new counsel. He contends that because the court failed to engage in a sufficient inquiry on the record before denying his motions, see State v. Torres, 208 Ariz. 340, ¶¶ 8-9 (2004), it is impossible for this court to review those rulings on appeal and asks that we reverse his convictions. He also contends generally that even though the court granted his sixth motion for new counsel in January 2017, he was "prejudiced" because the previous denials ultimately delayed his trial.
Armenta asserts for the first time in his reply brief that his arguments regarding the motions for new counsel are limited to the trial court's denial of his two motions to replace Gattone based on a breakdown in communication, and that his fractured relationship with all of his attorneys waived "[t]he numerous other issues" listed in his motions and thus are not part of his argument on appeal.
¶12 "We review a trial court's denial of a defendant's request for substitute counsel for a clear abuse of discretion." State v. Paris-Sheldon, 214 Ariz. 500, ¶ 8 (App. 2007). Such an abuse occurs only where the court "fails to inquire into the basis for the defendant's dissatisfaction with counsel or fails to conduct a hearing . . . after being presented with specific factual allegations in support of the request for new counsel." Id. In State v. Gomez, our supreme court stated,
A trial judge is not required to hold an evidentiary hearing on a motion for change of counsel if the motion fails to allege specific facts suggesting an irreconcilable conflict or a complete breakdown in communication, or if there is no indication that a hearing would elicit additional facts beyond those already before the court.231 Ariz. 219, ¶ 29 (2012). Although "[a] criminal defendant has a Sixth Amendment right to representation by competent counsel," he or she is not "entitled to counsel of choice or to a meaningful relationship with his or her attorney." State v. Cromwell, 211 Ariz. 181, ¶ 28 (2005).
¶13 Between March 2016 and January 2017, Armenta filed six motions to substitute counsel, five of which related to his second appointed attorney. In January 2017, the trial court granted Armenta's sixth motion, appointing Gattone as his third attorney. On May 15, 2017, Armenta filed an "ex parte" motion to remove Gattone. At a June 2017 hearing, Armenta withdrew that motion and agreed that any concerns he had with Gattone had been resolved. At that time, the court directed Armenta to "funnel[]" all future motions through Gattone, rather than filing them pro se.
All but one of those motions were initially filed as pro se pleadings. --------
¶14 Despite having voluntarily withdrawn his previous motion because he had resolved his issues with Gattone, and despite the trial court's admonition not to file any more pro se motions, Armenta filed another pro se motion to substitute counsel on October 5, 2017, telling the court he had "attempted to resolve the communication issues and the issues herein [regarding Gattone] back [o]n May 15, 2017 when [he] submitted a motion for new counsel, however no inquiry was held as to [his] dissatisfaction with counsel." At an October 9, 2017 hearing the court told Armenta he needed to keep his attorney "in the loop whether [he was] interested in working with him or not," and that it would only address motions for new counsel that had been filed by Gattone.
¶15 The trial court explained that Gattone was competent, "he knows what he's doing," and he was able to file a motion to substitute counsel on his behalf. Gattone stated that he had no problem working with Armenta, but as a general proposition, he could not ethically file a motion just because a client asked him to do so, and that it was his job as the attorney to help his client "chart the direction of the case." See State v. Bible, 175 Ariz. 549, 591 (1993) (disagreement over tactics and strategy insufficient to support motion for new representation). The court further noted that it had looked at Armenta's pro se motions to ensure it was not depriving him of due process, it could not rule on his pro se pleadings, and it would not, in any event, consider motions that were not legally permissible. After his trial, Armenta filed a ninth motion to substitute counsel, asking that a new attorney be appointed to replace Gattone at sentencing, which the court granted.
¶16 As previously noted, Armenta voluntarily withdrew his first motion related to Gattone, and the trial court admonished Armenta not to file any more pro se motions while he was represented by counsel. Despite that admonition, Armenta apparently did not ask Gattone to refile his eighth motion (his second motion related to Gattone), which the court expressly stated it would not consider. Additionally, at an October 16, 2017 hearing, held shortly after Armenta had filed his second motion related to Gattone, Gattone stated that Armenta had "indicated to [him] that . . . additional time [was] necessary [for them] to work together" and that Armenta was requesting a continuance of the trial date. When the court asked Armenta if that was true, he responded, "Yeah."
¶17 Accordingly, insofar as Armenta challenges the denial of his motions related to Gattone, we conclude he has waived all but fundamental error on appeal based on his having voluntarily withdrawn one of those motions and having requested a continuance so he could "work" with Gattone after filing the other. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-21 (2005) (constitutional claims not raised at trial are reviewed only for fundamental error). Nor has Armenta meaningfully argued that any error was either fundamental or prejudicial, and he thus has waived such claims on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (failure to argue fundamental error waives that argument on appeal).
¶18 In any event, Armenta's complaints about Gattone, which are similar to the ones he asserted as to all of his attorneys, do not support finding a complete breakdown in communication, despite Armenta's claim that his relationship with Gattone was "fractured." See Cromwell, 211 Ariz. 181, ¶ 30 (to be colorable, "a defendant's allegations must go beyond personality conflicts or disagreements with counsel over trial strategy; a defendant must allege facts sufficient to support a belief that an irreconcilable conflict exists warranting the appointment of new counsel in order to avoid the clear prospect of an unfair trial"). We likewise reject Armenta's argument that the trial court's inquiry on the record was insufficient to deny his motions to substitute counsel, thereby making it impossible for us to review the court's rulings on appeal. Given that Armenta withdrew the first motion and requested a continuance after filing the second, there was no basis for the court to further inquire whether a conflict existed or whether there had been a complete breakdown in communication. And, because Armenta did not establish a colorable claim of an irreconcilable conflict with Gattone, the court was not required to hold a hearing on the matter. See Torres, 208 Ariz. 340, ¶¶ 8-9. For all of these reasons, we cannot say the court abused its discretion in refusing Armenta's requests for substitute counsel.
Entrapment Jury Instruction
¶19 Armenta also argues the trial court erred by refusing to provide the jury with an entrapment instruction. However, for the reasons set forth in our earlier discussion of the right to testify, we conclude that the court properly denied Armenta's request to raise an entrapment defense. Accordingly, we reject his argument that the court erred by denying his request for a related jury instruction. For the same reasons, we reject the additional overlapping arguments that it was up to the jury to decide if the minimal facts Armenta "knew" constituted entrapment under § 13-206(A); there is no "logical distinction" between entrapment and self-defense for purposes of determining whether an entrapment instruction should be given; and, the presence of the slightest evidence of entrapment required the court to give the instruction.
Anders Review
¶20 Pursuant to our obligation under Anders, we have searched the record for reversible error and have found none. The evidence was sufficient to support the jury's verdicts. See A.R.S. §§ 13-3401(6)(c)(xxxviii), 13-3407(A)(7), (B)(7). We also conclude Armenta's sentences are within the statutory range and were lawfully imposed. See A.R.S. § 13-703(C), (J). And we have rejected the arguments Armenta and counsel raised in their supplemental briefs for the reasons set forth above. Accordingly, we affirm Armenta's convictions and sentences.