Opinion
No. 1 CA-CR 10-1001
11-17-2011
STATE OF ARIZONA, Appellee, v. WILLIAM ADRIAN VAN LEEUWEN, JR., Appellant.
Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender Phoenix By Peg Green, Deputy Public Defender Attorneys for Appellant
NOTE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.34
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR1999-015758
The Honorable Samuel A. Thumma, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix By Peg Green, Deputy Public Defender Attorneys for Appellant TIMMER , Presiding Judge
¶1 William Adrian Van Leeuwen appeals his convictions and resulting sentences after a jury found him guilty in June 2000 of one count of disorderly conduct and two counts of threatening and intimidating. Van Leeuwen's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire record on appeal, she found no arguable question of law that is not frivolous. This court granted Van Leeuwen an opportunity to file a supplemental brief in propria persona, but he has not done so. Through his counsel, however, Van Leeuwen presents four issues: (1) insufficient evidence, (2) credibility of witnesses, (3) viability of prior convictions used to enhance sentence, and (4) ineffective assistance of counsel. We have jurisdiction to consider this appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, 13-4033(A)(1) and (3) (2010). For the following reasons, we affirm but modify Van Leeuwen's sentence to reflect twenty-seven days' presentence incarceration credit.
After his conviction, Van Leeuwen absconded and was not sentenced until November 2010 after he was caught. Arizona Revised Statutes ("A.R.S.") section 13-4033(C) (2010), enacted in 2008, prevents a defendant from appealing if his voluntary absence delayed sentencing by more than ninety days after conviction. Our court recently held it unconstitutional to apply § 13-4033(C) to defendants who were not on notice that absconding would result in a waiver of their appeal rights. State v. Bolding, 227 Ariz. 82, 88, ¶ 20, 253 P.3d 279, 285 (App. 2011). Van Leeuwen absconded eight years before § 13-4033(C) was enacted, indicating he was never informed of the later-enacted consequence of absconding. Section 13-4033(C) is inapplicable, therefore, and we consider Van Leeuwen's appeal.
DISCUSSION
I. Sufficiency of the evidence
¶2 In reviewing the sufficiency of evidence, we review the facts in the light most favorable to upholding the verdict and resolve all conflicts in the evidence against the defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). Evidence is sufficient when it is more than a mere scintilla and is such proof as could convince reasonable persons of the defendant's guilt beyond a reasonable doubt. State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted).
¶3 The jury convicted Van Leeuwen of one count of disorderly conduct and two counts of threatening and intimidating. A person commits disorderly conduct "if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: . . . [r]ecklessly handles, displays or discharges a deadly weapon or dangerous instrument." A.R.S. § 13-2904(A)(6) (Supp. 1999). A person commits threatening and intimidating "if such person threatens or intimidates by word or conduct: . . . [t]o cause physical injury to another person . . . ." A.R.S. § 13-1202(A)(1) (Supp. 1999). Our review of the evidence reveals sufficient evidence to support the jury's verdict on all counts.
¶4 At around 10:20 p.m. on September 29, 1999, Van Leeuwen returned to his apartment complex intoxicated. M.A., another resident of the complex, heard screeching noises outside her apartment and investigated. She saw Van Leeuwen moving his car, which had a flat tire, back and forth in the parking lot. When Van Leeuwen spotted M.A., he yelled obscenities and threatened to kill her. He screamed he was going to kill every person in the complex and bomb every car. Van Leeuwen then went to C.M.'s apartment window and yelled obscenities and threatened to kill her. Van Leeuwen left the window, threatened to kill M.A. again, and then went into his apartment. Believing the coast clear, M.A. checked on C.M., who was very distressed. After talking with C.M. and calling the police, M.A. headed back to her own apartment. While she was walking back, Van Leeuwen came outside, lifted his hand over his head, and appeared to fire a gun. M.A. did not see the gun, but she saw sparks and heard gunfire noises.
¶5 Phoenix police arrived and found a number of people, including Van Leeuwen, standing in the parking lot. They searched Van Leeuwen and did not find a gun on his person. Police recovered a gun from Van Leeuwen's apartment, but it did not match the shell casings found at the scene. Police arrested Van Leeuwen, who then told onlookers they would "pay for this."
¶6 Sufficient evidence permitted the jury to find that Van Leeuwen recklessly discharged a firearm with the intent to disturb the peace or quiet of the apartment complex, thereby committing disorderly conduct. Although the gun recovered from Van Leeuwen's apartment did not match the shell casings found at the scene, M.A. saw Van Leeuwen raise his hands and then saw sparks and heard gunfire. Her testimony was sufficient to support a conclusion that he fired a gun. The jury was additionally entitled to find Van Leeuwen recklessly fired the gun with the intent to disturb the peace or quiet of the apartment complex because he fired the gun late at night in a residential area. Sufficient evidence also supported a finding that Van Leeuwen committed two counts of threatening and intimidating in light of M.A.'s testimony that he threatened to kill her and C.M.
II. Witness credibility
¶7 Van Leeuwen next challenges the credibility of the witnesses who testified at trial. He does not identify which witnesses were incredible or in what ways. Regardless, we cannot evaluate the credibility of witnesses on appeal; that determination is left to the jury, which had the opportunity to view the witnesses' demeanors and determine credibility. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004) (explaining that it is the jury's responsibility to weigh the evidence and evaluate the credibility of witnesses).
III. Prior convictions
¶8 At sentencing, the trial court found that Van Leeuwen had three prior felony convictions and used those convictions to enhance his sentences. The court sentenced him to a slightly mitigated term of 3.25 years' imprisonment with twenty-four days of presentence incarceration credit and two years of unsupervised probation. Van Leeuwen challenges the "viability of the prior convictions that were used to enhance his sentence," without providing more specific argument. We reject this challenge because the viability of the prior convictions are not at issue in this case as more than eighteen years have passed since Van Leeuwen's most recent prior conviction. See State ex rel. Murphy v. Superior Court, 25 Ariz. 226, 234, 215 P. 538, 541 (1923) ("If [the defendant] would appeal he must do so within the time and in the manner fixed by law."). Additionally, the record supports a conclusion that Van Leeuwen was the person who was convicted of the felonies at issue.
IV. Ineffective assistance of counsel
¶9 Van Leeuwen finally contends his counsel was ineffective. A claim of ineffective assistance of counsel may not be reviewed on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective assistance of counsel claim must be raised in Arizona Rule of Criminal Procedure 32 proceeding). We therefore do not reach the merits of Van Leeuwen's argument.
V. Presentence incarceration credit
¶10 In reviewing the record, we find that the trial court failed to grant sufficient presentence incarceration credit to Van Leeuwen. Section 13-712(B), A.R.S., (2010), provides that "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment . . . shall be credited against the term of imprisonment . . . ." Custody commences "when a defendant is booked into a detention facility," but does not include the date of imposition of sentence. State v. Carnegie, 174 Ariz. 452, 453-54, 850 P.2d 690, 691-92 (App. 1993); State v. Hamilton, 153 Ariz. 244, 245-46, 735 P.2d 854, 855-56 (App. 1987).
¶11 The trial court granted Van Leeuwen twenty-four days of presentence incarceration credit, but we conclude Van Leeuwen was entitled to twenty-seven days of credit from three separate periods of presentence incarceration. Van Leeuwen spent two days in jail following his initial arrest on September 29, 1999. He spent another day in jail after his re-arrest on September 8, 2010. And he spent twenty-four days in custody beginning on October 25, 2010 when the trial court revoked his release and ending when he was sentenced on November 18, 2010. Therefore, Van Leeuwen is entitled to twenty-seven days of presentence incarceration credit, and the trial court committed fundamental error by crediting him with only twenty-four days of presentence incarceration credit. State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989) ("The trial court's failure to grant appellant full credit for presentence incarceration clearly constituted fundamental error."). Pursuant to A.R.S. § 13-4037 (2010), we modify Van Leeuwen's sentence on count one to reflect twenty-seven days' presentence incarceration credit.
CONCLUSION
¶12 After the filing of this decision, counsel's obligations pertaining to Van Leeuwen's representation in this appeal have ended. Counsel need do no more than inform Van Leeuwen of the status of the appeal and his future options, unless counsel's review reveals 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). Van Leeuwen shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
¶13 Accordingly, we affirm Van Leeuwen's convictions and sentences as modified.
Ann A. Scott Timmer, Presiding Judge
CONCURRING:
Daniel A. Barker, Judge
Patrick Irvine, Judge