Opinion
No. 1 CA-CR 13-0005
02-13-2014
STATE OF ARIZONA, Appellee, v. RUTH ANN CLEMENTS, Appellant.
Maricopa County Public Defender's Office, Phoenix By Charles R. Krull Counsel for Appellant Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-006058-001
The Honorable William L. Brotherton, Judge
AFFIRMED
COUNSEL
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined. THUMMA, 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 Ruth Ann Clements has advised the court that, after searching the entire record, he is unable to discover any arguable questions of law, and has filed a brief requesting this court conduct an Anders review of the record. Clements was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and finds no reversible error. Accordingly, Clements' convictions and resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts "in the light most favorable to sustaining the verdict, and resolve[s] all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation omitted).
¶2 Clements, who suffers from chronic arthritis, visited a bar in October 2011 in hopes that a few beers would "make [her] bones, you know, a little more relaxed." Because Clements planned on going to a store for essentials after drinking, she took a rolling cooler to the bar with her. Clements paid for a pitcher of beer and proceeded to the back patio, where other patrons were playing poker. After finishing the pitcher, Clements paid for a second pitcher and again sat to drink it on the patio. About this time, three patrons complained to the bartender that Clements was yelling obscenities at the individuals playing poker.
¶3 In response, the bartender told Clements that she needed to leave. Upset that she was being asked to leave before she finished her second pitcher of beer, Clements yelled obscenities at the bartender and proceeded to the women's bathroom where another patron observed Clements pouring the beer from the pitcher into a water jug. Because Arizona liquor laws prohibit transferring alcohol to another container and taking it off the premises, the bartender confiscated Clements' water jug, poured out the beer and returned the empty jug to Clements. Clements then left the bar.
¶4 A few minutes later, a patron informed the bartender that Clements was outside in the front of the building hitting a customer. The bartender called the police and saw Clements punching and tearing the shirt of the customer. When Clements learned the police were on their way, she began walking away from the bar. The police stopped Clements as she was walking into a nearby store.
¶5 The police tried to question Clements but her disruptive behavior prevented any such discussion. Clements began yelling obscenities at the police, which caused them to restrain her and placed her in a police vehicle. During this time, Clements kicked at the vehicle and the police officers. Clements was read her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and eventually calmed down and spoke with the police officers who transported Clements to a booking station. While in line to be photographed, Clements refused to sit on a bench with others. After repeatedly being told to sit down, an officer placed his hands on Clements' shoulders in an attempt to help her sit down. Clements kicked the police officer in the leg, which resulted in her being placed in an isolation cell. At trial, an officer testified that he believed Clements' kick was intentional and the jury was shown a video of the incident. The officer who was kicked suffered pain and numbness in his leg, but no physical injury was observed and no photographs of the injury were taken.
¶6 Clements was charged with Count 1, Disorderly Conduct, a Class 1 misdemeanor and Count 2, Aggravated Assault, a Class 5 felony. After participating in restoration services, upon stipulation, Clements was found competent to stand trial. The State successfully moved in limine to preclude any evidence of Clements' mental health from being introduced at trial.
¶7 Clements refused to be transported for a comprehensive pre-trial conference on four different occasions. After the fourth refusal, the court waived Clements presence, set a final trial management conference and confirmed the trial date. When Clements refused to be transported to the final trial management conference, the court reset the hearing. Clements appeared for the rescheduled final trial management conference, where she was advised by the court that her trial could proceed in her absence if she did not attend. At that time, the court also addressed and denied Clements' motion for change in counsel, finding her complaints addressed trial strategy, an area properly in the control of her attorney.
¶8 A three day trial commenced. Although Clements was present for the first day of trial when the jury was selected, she refused transportation the morning of the second day of trial. Trial proceeded in her absence. The court appropriately instructed the jury not to consider Clements' absence at trial that morning. Clements then appeared for the afternoon session of her trial and testified.
¶9 The jury found Clements guilty on both counts. The State withdrew the allegation of a historical prior felony conviction and Clements was sentenced to six months in jail, with presentence credit of 433 days, for Count 1 and placed on supervised probation for three years for Count 2. Clements timely appeals her conviction and sentences. This court has jurisdiction over her appeal pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1) (2014).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
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DISCUSSION
¶10 The court has reviewed and considered counsel's brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (providing guidelines for briefs when counsel has determined no arguable issues to appeal). Searching the record and brief reveals no reversible error. The record shows Clements was represented by counsel at all stages of the proceedings and counsel was present at all critical stages. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The sentences imposed were within the statutory limit. Neither counsel nor Clements raised any issues on appeal.
¶11 At the final trial management conference, Clements asked that new counsel be appointed because she felt that her counsel had not: brought her health issues or mitigating circumstances with respect to a 20 year-old manslaughter conviction to the attention of the court; adequately argued a motion for modification of her conditions of release and appropriately sought to get warmer clothes for Clements while she was in jail. When addressing such a request, the superior court should consider "whether an irreconcilable conflict exists . . . ; whether new counsel would be confronted with the same conflict . . . ; the time period already elapsed between the alleged offense and trial . . . ; and the quality of counsel." State v. Peralta, 221 Ariz. 359, 361, ¶ 5, 212 P.3d 51, 53 (App. 2009) (quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987)). Here, the superior court found that Clements' complaints dealt mostly with trial strategy, that any new counsel would face the same obstacles and that Clements' attorney was of high quality. In doing so, the court properly evaluated the request and did not err in denying Clements' request for the appointment of new counsel.
¶12 The superior court did not err in proceeding with trial on the morning of the second day of trial, even though Clements was absent. The record shows Clements was aware of her trial date, her right to be present at trial and that trial would go forward in her absence but she still refused transportation. Clements' absence on the morning of the second day of trial was voluntary, as she acknowledged to the superior court, and was the result of arthritis she claimed was caused by the cold conditions in the jail. Clements was present that afternoon and testified. In addition, the court properly instructed the jurors on the start of the second day of trial not to consider Clements' absence, and Clements' attorney stated in her opening statement "not to think about why Ms. Clements is not here." There was no error in proceeding with trial in Clements' absence.
CONCLUSION
¶13 This court has read and considered counsel's brief and has searched the record provided for reversible error. Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. From the court's review, the record reveals no reversible error. Accordingly, Clements' convictions and resulting sentences are affirmed.
¶14 Upon filing of this decision, defense counsel is directed to inform Clements of the status of her appeal and of her future options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984). Clements shall have thirty days from the date of this decision to proceed, if she desires, with a pro se motion for reconsideration or petition for review.