Opinion
No. 2 CA-CR 2017-0050
02-23-2018
THE STATE OF ARIZONA, Appellee, v. LEO RODRIGUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs 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NOT FOR PUBLICATION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. CR20094084001
The Honorable Paul E. Tang, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 In this delayed appeal, Leo Rodriguez seeks review of the sentences imposed for his convictions of stalking, computer tampering, trafficking in the identity of another person or entity, and sixty-one counts of aggravated harassment. He argues that the state committed misconduct at sentencing and that his aggregate 11.75-year prison term constitutes cruel and unusual punishment. We affirm.
Rodriguez was granted leave to file a delayed appeal pursuant to Rule 32.1(f), Ariz. R. Crim. P.
¶2 Because Rodriguez's arguments on appeal relate only to his sentences, a detailed recitation of the facts underlying his convictions is unnecessary. Over a six-month period in 2009, Rodriguez repeatedly harassed his former girlfriend. After a nine-day jury trial, he was convicted and sentenced as described above.
In the same post-conviction proceeding in which he was granted leave to file a delayed appeal, Rodriguez also raised claims related to his conviction and sentence for computer tampering. The trial court concluded Rodriguez was entitled to be resentenced on that claim; the subsequent resentencing reduced his aggregate prison term from 16.5 to 11.75 years.
¶3 Rodriguez first argues the state committed misconduct by attaching to its sentencing memorandum an article discussing the relationship between stalking and femicide and by stating at sentencing that "the next step is that [Rodriguez] kills someone." He did not timely raise this issue below and, thus, has forfeited appellate review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).
Rodriguez seems to assert he has preserved this issue for appeal by raising it in the post-conviction proceeding in which he sought Rule 32.1(f) relief. But raising an issue not raised at trial in a collateral proceeding does not preserve the issue for direct appeal from the conviction or sentence. To conclude otherwise would disregard the purpose of limiting our review to fundamental error—that is, to "discourage a defendant from 'tak[ing] his chances on a favorable verdict, reserving the "hole card" of a later appeal on [a] matter that was curable at trial, and then seek[ing] appellate reversal.'" State v. Henderson, 210 Ariz. 561, ¶ 19 (2005), quoting State v. Valdez, 160 Ariz. 9, 13-14 (1989) (alteration in Henderson). And, in any event, the claim would presumptively be precluded in a post-conviction proceeding by Rule 32.2(a)(3). We reject as waived, however, the state's conclusory and unsupported argument that the trial court's ruling on this issue in the post-conviction proceeding constitutes "law of the case." State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on appeal). --------
¶4 "We evaluate each instance of alleged prosecutorial misconduct to determine if error occurred and, if so, its effect." State v. Goudeau, 239 Ariz. 421, ¶ 192, cert. denied, ___ U.S. ___, 137 S. Ct. 223 (2016). To prove prosecutorial misconduct, the appellant must show "that the prosecutor's misconduct so infected the trial with unfairness as to make the result[] . . . a denial of due process." State v. Morris, 215 Ariz. 324, ¶ 46 (2007), quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998).
¶5 Rodriguez asserts the state's actions were improper because the article's inclusion with the sentencing memorandum "was in violation of the rules of evidence." His argument, however, ignores Arizona law. A court may review information submitted for sentencing purposes without regard to the evidentiary rules so long as the record "show[s] what the information consists of and where it comes from and must indicate that it has some substance above rumor, gossip or speculation." State v. Jones, 147 Ariz. 353, 355 (1985); see also A.R.S. § 13-702(C) (allowing court to consider "any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial"); Ariz. R. Crim. P. 26.7(b)(2) (permitting party to introduce at sentencing "any reliable, relevant evidence, including hearsay, to show aggravating or mitigating circumstances, to show why the court should not impose a particular sentence, or to correct or amplify the presentence, diagnostic, or mental health reports").
¶6 To the extent Rodriguez contends the article was inflammatory and prejudicial, we disagree. He maintains the trial court conceded that the article and state's argument "related to the issue of recidivism" and states "it was improper for the judge to consider this 'evidence'" in this context when he had no prior convictions. As Rodriguez points out, the court did state the prosecutor's argument "related to the State's concerns about recidivism along with safety to the victim or community in regards to sentencing." But he has cited no authority, and we are aware of none, for the proposition that a concern about recidivism is improper simply because a defendant has no prior convictions. Moreover, the record does not support his argument that the court applied recidivism as an aggravating factor or, for that matter, shared the state's concern. Indeed, the court noted that it had imposed only presumptive or mitigated sentences, making it "reasonably unlikely the State's statements improperly affected the sentences imposed." Thus, even assuming the article and comments were improper, they did not influence the court's decision. Cf. In re Estate of Newman, 219 Ariz. 260, ¶ 66 (App. 2008) (court presumed to ignore improper evidence). Rodriguez has not established any fundamental, prejudicial error.
¶7 Rodriguez next argues his aggregate 11.75-year prison term violates the Eighth Amendment prohibition against cruel and unusual punishment. The length of a sentence can render it unconstitutional if the sentence is "grossly disproportionate to the crime." State v. Florez, 241 Ariz. 121, ¶ 22 (App. 2016), quoting State v. Berger, 212 Ariz. 473, ¶ 10 (2006). In analyzing a sentence under the Eighth Amendment, we first determine whether the defendant has made "a threshold showing of gross disproportionality by comparing the gravity of the offense [and] the harshness of the penalty." Id. ¶ 23, quoting Berger, 212 Ariz. 473, ¶ 12 (alteration in Berger). In doing so, we defer to the legislature's policy judgment, as reflected by the governing sentencing statutes. Id. A sentence "is not grossly disproportionate to the crime if it 'arguably furthers the State's penological goals' and 'reflects a rational legislative judgment' to which the court owes deference." Id., quoting Berger, 212 Ariz. 473, ¶ 17. In extremely rare cases, "the specific application" of an otherwise constitutional sentencing scheme "to the facts of a defendant's case may result in an unconstitutionally disproportionate sentence." Id. If there is an "inference of gross disproportionality," we will then "test that inference by conducting inter-jurisdictional and intra-jurisdictional comparative analyses." Id.
¶8 Rodriguez does not meaningfully develop an argument that his sentence outweighs the gravity of the offenses. He does not argue the sentencing scheme fails to further a valid state goal or to reflect rational legislative judgment. Nor does he assert his case is one of those rare cases where such a showing is not necessary. He instead complains about the discretionary sentencing decisions made by the court. He therefore has waived this argument on appeal and we do not address it further. See State v. Bolton, 182 Ariz. 290, 298 (1995) (insufficient argument waives claim on appeal).
¶9 We affirm Rodriguez's convictions and sentences.