Opinion
No. 1 CA-CR 14-0283
06-09-2015
STATE OF ARIZONA, Appellee, v. DELANO DANNY QUIROZ, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Consuelo M. Ohanesian Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2011-154084-002 DT
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.
CATTANI, Judge:
¶1 Delano Danny Quiroz, Jr., appeals his convictions and resulting sentences for one count of robbery, one count of burglary in the second degree, one count of theft of means of transportation, two counts of armed robbery, two counts of aggravated assault, one count of aggravated assault on a peace officer, one count of endangerment, and one count of misconduct involving weapons. Quiroz's counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, counsel found no arguable question of law that was not frivolous. Quiroz was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). After reviewing the record, we affirm Quiroz's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2011, Quiroz and a woman committed a series of armed robberies and other crimes involving several victims. The first victim ("A.R.") was attacked in his hotel room after being asked by Quiroz and a woman for a cigarette lighter. A third unidentified man walked into the room and demanded money from A.R.; A.R. gave him some money, then chased him when he left, but A.R. was unable to catch him. A.R. returned to his hotel room and discovered that Quiroz and the woman had left and his car keys and other items were missing. A.R. also determined that his black SUV had been stolen from the hotel parking lot.
¶3 Shortly after the first robbery, Quiroz and the woman drove the stolen SUV to a gas station where they robbed a second victim ("K.P."), who reported being forced at gunpoint to turn over a pack of cigarettes and $8 to a masked man who fled in a black SUV.
¶4 Quiroz and the woman committed another armed robbery, confronting a third victim ("K.M.") at a different gas station and
demanding money at gunpoint. After surrendering her debit card, K.M. memorized the license plate number on the black SUV her assailants were driving and reported it to the Phoenix Police Department.
¶5 Police officers subsequently saw the stolen black SUV run a red light and make a sudden right turn, then collide with a cement wall. Following a foot pursuit, Quiroz's companion was subdued. Quiroz was seen running away with a gun in his right hand. After jumping on top of a brick wall, Quiroz pointed the gun at one of the police officers, who fired his weapon several times, striking Quiroz in the leg and causing him to fall on the other side of the wall.
¶6 Quiroz was arrested and taken to the hospital to be treated for gunshot wounds to his leg. At the time of his arrest, Quiroz had in his possession foreign currency belonging to A.R., a visitor pass belonging to A.R., and K.M.'s debit card. Police officers recovered an unfired bullet from under Quiroz, and they found a handgun that used the same type of bullet in the backyard of a nearby home.
¶7 During trial, Quiroz's counsel reported that Quiroz had threatened him after Quiroz disagreed with counsel's decisions regarding questioning witnesses. The court ordered that Quiroz be shackled due to the danger he posed to counsel. The court granted counsel's motion to withdraw, and Quiroz proceeded to represent himself with appointed advisory counsel.
¶8 Following the presentation of evidence by the State and Quiroz, the jury convicted him as outlined above. The jury found multiple aggravating circumstances for most of the counts, and the court later found Quiroz's prior convictions to be an aggravating circumstance as to all counts. The jury also found that Quiroz had committed all of the offenses while on community supervision.
¶9 The court sentenced Quiroz as a repetitive offender to aggravated, concurrent sentences, the greatest of which is 28 years flat-time, with credit for 718 days of presentence incarceration. Quiroz thereafter timely appealed.
DISCUSSION
¶10 After considering the briefs and reviewing the record for reversible error, we affirm. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶11 Quiroz was present and had the opportunity to be represented by counsel at all stages of the proceedings. He was represented by counsel even after he threatened appointed counsel and was warned of the consequences of such threats. After again threatening counsel, Quiroz represented himself, with the help of advisory counsel.
¶12 The superior court found that Quiroz had waived his right to counsel without engaging in a colloquy to determine if the waiver was voluntary. Although such a colloquy is generally required for an affirmative waiver, a defendant can implicitly waive the right to counsel through conduct. See State v. Hampton, 208 Ariz. 241, 243-44, ¶ 7, 92 P.3d 871, 873-74 (2004). Certain circumstances, such as the defendant behaving disruptively or aggressively, will support a finding that the defendant has waived his right to counsel by conduct. See id. at 244, ¶ 7, 92 P.3d at 874. Before finding an implicit waiver, however, the court must (1) warn the defendant of the consequences of continued misconduct and (2) explain the implications of a waiver of counsel. See State v. Coven, 236 Ariz. 393, 397, ¶ 12, 340 P.3d 1101, 1105 (App. 2015).
¶13 Here, Quiroz threatened two different attorneys and continued to threaten counsel even after being warned of the consequences of such threats. Accordingly, the court did not err by finding Quiroz had waived his right to counsel by conduct.
¶14 The court also ordered Quiroz to wear restraints following his threats to counsel. The restraints were justified based on Quiroz's conduct, and in any event, he was not prejudiced because the restraints were not visible to the jurors. See Deck v. Missouri, 544 U.S. 622, 629 (2005); State v. Dixon, 226 Ariz. 545, 552, ¶ 27, 250 P.3d 1174, 1181 (2011); State v. Gomez, 211 Ariz. 494, 502-03, ¶¶ 40-41, 123 P.3d 1131, 1139-40 (2005).
¶15 The record reflects that the superior court afforded Quiroz all his rights under the United States and Arizona Constitutions and our statutes, and the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The superior court conducted appropriate pretrial hearings, and the evidence presented at trial was sufficient to support the jury's verdicts. Quiroz's sentences fall within the range prescribed by law, with proper credit given for presentence incarceration, excluding the time credited to a prior sentence. Accordingly, we affirm the convictions and sentences.
¶16 After the filing of this decision, defense counsel's obligations pertaining to Quiroz's representation in this appeal will end after informing
him of the outcome of this appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Quiroz shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
CONCLUSION
¶17 Quiroz's convictions and sentences are affirmed.