Opinion
No. 1 CA-CR 14-0307
10-01-2015
STATE OF ARIZONA, Appellee, v. JAIME SOTO JACOTT, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Carlos Daniel Carrion Counsel for Appellant Jaime Soto Jacott Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2011-006680-001
The Honorable Jeanne M. Garcia, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
Jaime Soto Jacott
Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined. SWANN, Judge:
¶1 Defendant Jaime Soto Jacott appeals his conviction and sentence for sale or transportation of dangerous drugs.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable nonfrivolous question of law; he now asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Defendant has filed a supplemental brief in propria persona in which he raises several issues for appeal.
¶3 Having searched the record and considered the briefing, we affirm Defendant's conviction, and we modify his sentence to correct a miscalculation of presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶4 The state charged Defendant with sale or transportation of dangerous drugs under A.R.S. § 13-3407(A)(7). Defendant pled not guilty, and the court set the matter for a jury trial.
The information charged two counts, but one of the counts was later dismissed. --------
¶5 Defendant, who was out of custody on a surety bond, failed to appear at several hearings immediately before trial. He then failed to appear at trial. His counsel informed the court that he had spoken with Defendant after each missed pretrial hearing, that Defendant was aware of the hearings and the trial, and that counsel was unaware of any legal excuse for Defendant's absence. The court found that Defendant had voluntarily chosen not to be present and ordered that trial proceed in his absence.
¶6 After jury selection, but before the presentation of any evidence, defense counsel made two oral motions in limine. First, counsel moved to preclude evidence that Defendant was seen storing a firearm in his vehicle after conducting the transaction at issue. The court granted this motion. Counsel next moved to preclude evidence that the "buy house" at which the relevant acts occurred had been set up by law enforcement because of a drug problem in the neighborhood. Counsel argued that such evidence was unduly prejudicial because it implied that Defendant was a contributor to the problem. The court disagreed, concluding that any potential prejudice could be cured by the introduction of evidence that Defendant was not known to live in the neighborhood.
¶7 The state presented to the jury evidence of the following facts. In July 2010, police officers were using an audio- and video-surveilled residence to conduct undercover operations in a Phoenix neighborhood. On July 7, Detective David Mendez, working undercover, encountered an individual named Charlie Martinez at a gas station. Mendez spoke with Martinez, and Martinez asked him if he was interested in purchasing "some G" -- a slang term for methamphetamine. Mendez told Martinez that he would check with a friend. After telephoning Det. Kevin Chadwick, who was waiting at the undercover residence, Mendez made arrangements with Martinez for Martinez to bring methamphetamine to the residence.
¶8 Following Martinez's instructions, Mendez returned to the area of the residence and waited outside. Martinez arrived with Defendant, introducing Defendant by his first name and stating that Defendant would be "taking care" of them. The three men then entered the residence together. Inside, Chadwick asked Defendant if he was going to be "taking care" of him, and Defendant said yes. Chadwick then informed Defendant that he wanted 0.5 grams of methamphetamine. Defendant removed a substance from his bag and used Chadwick's scale and (for calibration) a coin to measure out an amount. Chadwick paid Defendant $40, placed the substance in a plastic bag, and put it in his pocket. Testing later revealed that the substance was 0.67 grams of methamphetamine.
¶9 Mendez accompanied Defendant and Martinez out of the residence. Defendant asked whether Mendez would be receiving some of the methamphetamine as payment for brokering the deal, and Mendez said no. Defendant removed additional substance from his bag, wrapped it in a plastic bag, and gave it to Mendez. Testing later revealed that the substance was 0.096 grams of methamphetamine.
¶10 At the close of the state's evidence, Defendant moved for a judgment of acquittal under Ariz. R. Crim. P. 20. The court denied the motion. After considering the evidence and counsels' arguments, the jury returned a guilty verdict.
¶11 Five months later, Defendant was taken into custody for a new offense. A trial on Defendant's prior felony convictions soon followed. At the trial on priors, Defendant objected to the admission of imprisonment and court records, arguing that they were not self-authenticating documents. The court overruled Defendant's objections and found that the state had proved eight prior Arizona felony convictions: (1) aggravated assault, a class 3 felony, committed in February 1994; (2) possession of drug paraphernalia, a class 6 felony, committed in June 1994; (3) attempted possession of narcotic drugs for sale, a class 3 felony, committed in July 1994; (4) aggravated assault, a class 2 felony, committed in January 2000; (5) possession of dangerous drugs (specifically, methamphetamine) for sale, a class 2 felony, committed in January 2000; (6) unlawful flight from a law enforcement vehicle, a class 5 felony, committed in August 2006; (7) criminal trespass in the first degree, a class 6 felony, committed in December 2007; and (8) possession or use of marijuana, a class 6 felony, committed in August 2010.
¶12 Sentencing was delayed so that the proceedings for Defendant's latest offenses could be combined. At the sentencing hearing, the court entered judgment on the jury's verdict and, as relevant to this appeal, sentenced Defendant to a minimum prison term of 10 years of flat time, with credit for 611 days of presentence incarceration. Defendant timely filed a notice of appeal from the conviction and sentence.
DISCUSSION
¶13 In his supplemental brief, Defendant contends that we must search for error. We agree that we must search for fundamental error. See Anders, 386 U.S. 738; Smith, 528 U.S. 259; Clark, 196 Ariz. 530. We have done so.
¶14 As an initial matter, we conclude that the court did not err by trying Defendant in absentia. Under Ariz. R. Crim. P. 9.1, "a defendant may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it," and "[t]he court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear." Ariz. R. Crim. P. 9.1. "Written notice that the trial will proceed without the defendant is sufficient warning." State v. Vaughn, 163 Ariz. 200, 204 (App. 1989). Defense counsel's representations gave the court reasonable grounds to conclude that Defendant had personal notice of the trial and his right to be present. Further, Defendant's written release order, for which he signed a written acknowledgment, specified that court proceedings could go forward in his absence if he failed to appear.
¶15 Defendant was represented by counsel at all critical stages, including the trial. To the extent that Defendant contends that he was deprived effective assistance of counsel, we do not consider this argument -- claims for ineffective assistance of counsel must be raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
¶16 The jury was properly composed, and there is no evidence of any juror misconduct or bias.
¶17 With respect to the evidence presented by the state, we need not address whether the court erred by denying Defendant's motion in limine because the state did not ultimately present the evidence sought to be precluded. The state presented sufficient admissible evidence to support Defendant's conviction. A person commits sale or transportation of dangerous drugs when he "knowingly . . . [t]ransport[s] for sale . . . or . . . sell[s] . . . a dangerous drug." A.R.S. § 13-3407(A)(7). Methamphetamine is a dangerous drug. A.R.S. § 13-3401(6)(b)(xxxviii). The state presented evidence that Defendant provided methamphetamine to an undercover detective in exchange for money. Defendant contends on appeal that the substance he provided was not methamphetamine, and that the test used to identify it as such was imprecise. Counsel stipulated at trial, however, that the substance tested positive for methamphetamine. In view of the stipulation, Defendant is not entitled to relief on appeal.
¶18 Defendant was present at sentencing, and was given an opportunity to address the court. The state proved each of his eight prior felony convictions by properly admissible evidence. Defendant's objections to the evidence were not well-founded. The records were self-authenticating or otherwise reliable under Ariz. R. Evid. 902 or 901, and were admissible under Ariz. R. Evid. 803(8). The imprisonment records were accompanied by written and notarized certifications of employees of the Arizona Department of Corrections. Similarly, each of the court records was sealed and signed by the Clerk of the Superior Court.
¶19 The court imposed a legal sentence under A.R.S. §§ 13-3407(B)(7), (E), and (F). The court credited Defendant with 611 days of presentence incarceration credit. The record reflects, however, that Defendant was entitled to 613 days of presentence incarceration credit under A.R.S. § 13-712(B). The miscalculation constituted fundamental error. State v. Ritch, 160 Ariz. 495, 498 (App. 1989). We therefore modify Defendant's sentence to reflect 613 days of presentence incarceration credit. See A.R.S. § 13-4037(A); State v. Stevens, 173 Ariz. 494, 496 (App. 1992).
CONCLUSION
¶20 For the reasons set forth above, we affirm Defendant's conviction, and we affirm his sentence as modified.
¶21 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.