Opinion
1 CA-CR 10-1029
10-18-2011
STATE OF ARIZONA, Appellee, v. KARL DOUGLAS SEBASTIAN, Appellant.
NOTICE: 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. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-103035-001 DT
The Honorable Samuel A. Thumma, Judge
The Honorable Roger E. Brodman, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Peg Green, Deputy Public Defender
Attorneys for Appellant
Phoenix
WINTHROP, Chief Judge
¶1 Karl Douglas Sebastian ("Appellant") appeals his convictions and sentences for five counts of sale of a dangerous drug and five counts of use of a wire communication or electronic communication in a drug-related transaction. Appellant's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant's counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Appellant was given the opportunity to file a supplemental brief in propria persona, but he has not done so. He has, however, raised issues through counsel that we address.
¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). Finding no reversible error, we affirm, but we modify the trial court's December 9, 2010 sentencing minute entry to reflect sixty days' presentence incarceration credit instead of forty-one days.
I. FACTS AND PROCEDURAL HISTORY
¶3 On January 26, 2010, a grand jury issued an indictment, charging Appellant with Counts I, III, V, VII, and IX, selling or transferring a dangerous drug (methamphetamine), each a class two felony; Counts II, IV, VI, VIII, and X, using a wire communication or electronic communication in a drug-related transaction, each a class six felony; and Count XI, possession of drug paraphernalia, a class six felony, in violation of A.R.S. §§ 13-3407 (2010), 13-3417 (2010), and 13-3415 (2010).The counts resulted from five separate incidents in which Appellant allegedly sold methamphetamine to an undercover detective after arranging for each sale through a telephone conversation.
We cite the current version of the applicable statutes because no revisions material to our decision have since occurred.
¶4 At trial, the following evidence was elicited: On approximately October 28, 2009, while working in an undercover capacity, Mesa Police Detective Rodriguez met Appellant through a confidential informant. Detective Rodriguez drove the informant in an unmarked vehicle to the mobile home park where Appellant lived. The informant exited the vehicle, went to Appellant's door, and entered Appellant's home. Soon after, the detective observed Appellant leave the mobile home and walk north until he was out of sight. When Appellant returned, he handed the informant a baggie. The detective introduced himself to Appellant as "Danny," and said, "Is it all right if I give you a call for some G?" Appellant replied, "Yeah," and gave the detective his phone number.
The detective testified that "G" is a street term for methamphetamine.
¶5 The detective attempted to call Appellant between October 28 and December 10, 2009, but Appellant did not answer the phone. On December 11, 2009, the detective called Appellant, and Appellant answered. The detective reintroduced himself and asked, "Is it all right if I come down and get half a T from you?" Appellant responded, "A T-shirt?" The detective repeated that he needed "half a T," and Appellant responded, "Okay, I can get you -- I can get you a T-shirt. Just come on down."
The detective testified that "T" is a street term for one-sixteenth of an ounce of methamphetamine.
¶6 Detective Rodriguez drove with his supervisor, Sergeant Bellows, to Appellant's mobile home. For safety purposes, Detective Rodriguez wore a transmitting device. Sergeant Bellows sat in the back of the unmarked vehicle with a radio, monitoring any conversations through the transmitting device.
Sergeant Bellows accompanied Detective Rodriguez on each of several transactions with Appellant, and each time the detective wore the transmitting device while Sergeant Bellows listened. The transactions were not recorded.
¶7 When Detective Rodriguez arrived at Appellant's house, he saw four or five people outside the home. He introduced himself as Danny and asked for Appellant. An individual, later identified as "Rage," Appellant's son, entered the home to advise Appellant that Danny had arrived.
¶8 Appellant came outside, and the detective asked if he could "get half a T" from Appellant. Appellant replied, "Yeah, sure." Detective Rodriguez gave Appellant sixty dollars, and Appellant walked around a corner, out of Detective Rodriguez's line of sight. Approximately five minutes later, Appellant returned with a baggie containing a clear-colored, crystal-type substance later determined to be 422 milligrams of methamphetamine, a dangerous drug, in a usable quantity.
On December 30, 2009, surveillance officers at the mobile home park observed Appellant go to another mobile home before returning with methamphetamine.
¶9 On December 16, 2009, Detective Rodriguez contacted Appellant using the same phone number Appellant had given earlier. The detective said, "Hey, it's Danny. Is it all right if I come down for half a T?" Appellant responded, "Yeah, come on down." Detective Rodriguez went to Appellant's home, where he met with Appellant and Rage. He asked Appellant for "half a T," and Appellant stated that he had purchased the amount he had available for himself, but he could sell thirty dollars' worth to the detective. The detective handed Appellant thirty dollars, and Appellant handed the detective a baggie containing a substance later determined to be 418 milligrams of methamphetamine.
¶10 On December 22 and 30, 2009, and January 14, 2010, similar transactions occurred. On each occasion, Detective Rodriguez called Appellant and asked for "half a T." Each time, Appellant told the detective to come to Appellant's home. While there, the detective would hand Appellant sixty dollars, and Appellant would exit his home and return with a baggie containing a substance later determined to be a usable quantity of methamphetamine.
The amounts obtained were, respectively, 444 milligrams, 598 milligrams, and 766 milligrams.
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¶11 The jury convicted Appellant of Counts I through X as charged. Appellant was found not guilty of Count XI. The jury found as an aggravating factor that all counts were committed with the receipt or expectation of pecuniary gain.
¶12 The trial court sentenced Appellant to concurrent, slightly aggravated terms of twelve years' imprisonment in the Arizona Department of Corrections ("ADOC") for Counts I, III, V, VII, and IX, and credited him for forty-one days of presentence incarceration. For Counts II, IV, VI, VIII, and X, the court ordered that Appellant be placed on concurrent terms of four years' supervised probation, to begin upon Appellant's release from ADOC. Appellant filed a timely notice of appeal.
II. ANALYSIS
¶13 Appellant argues through counsel that the evidence presented against him was not sufficient to support his convictions because there was very little evidence against him "other than the word of the undercover officer." On appeal, we do not reweigh the evidence, but view the evidence in the light most favorable to sustaining the conviction, and resolve all reasonable inferences against the defendant. State v. Lee, 189 Ariz. 608, 615, 944 P.2d 1222, 1229 (1997). It is the role of the jury to weigh the evidence and determine the credibility of witnesses. See id.; Logerquist v. McVey, 196 Ariz. 470, 488, ¶ 52, 1 P.3d 113, 131 (2000). Detective Rodriguez testified that he called Appellant on several occasions and purchased methamphetamine from him. Sergeant Bellows testified that he overheard discussions between Appellant and Detective Rodriguez regarding the sale of methamphetamine to the detective. The substances that Appellant gave the detective were tested and found to contain methamphetamine. The jury chose to believe the testimony the State presented, and this evidence was sufficient for the jury to find Appellant guilty.
¶14 Appellant argues that Detective Rodriguez "wore a wire but the transmissions were not recorded," and that the State "failed to present technological evidence to corroborate the undercover officer's testimony." Although bad faith failure to preserve or collect exculpatory evidence is a violation of the defendant's right to due process of law, there is no requirement that the State create potential impeachment evidence. See Ward v. Schriro, 2010 WL 3923586, at *17 (D. Ariz. 2010) (concluding that a detective's failure to record an interview with the murder victim's son did not constitute a due process violation because police officers are not required to create evidence). In the present case, the officers were not required to create evidence by recording Detective Rodriguez's transactions with Appellant.
¶15 Appellant next argues that he "chose not to testify based on faulty information from his attorney." His argument is essentially an ineffective assistance of counsel claim. This court will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be first presented to the trial court in a petition for post-conviction relief. See id.
¶16 We note, however, that Appellant's presentence incarceration credit is incorrect at forty-one days. Appellant's presentence report shows Appellant was in custody from January 15, 2010, until he was released on bond on January 17, 2010, for a total of three days' credit. Appellant was again placed in custody on January 20, 2010, and remained in custody until his release on bond on January 24, 2010, for a total of five days' credit. Appellant was again placed in custody on October 18, 2010, the date of the jury verdict, and he remained there until his sentencing on December 9, 2010. Because the day of sentencing does not count toward credit, this third set of days totaled fifty-two days of incarceration. See State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987) (holding that where the date the sentence is imposed also serves as the first day of sentence, it does not also count for presentence credit). Appellant therefore served a combined total of sixty days' presentence incarceration. Accordingly, he should have been credited for an additional nineteen days.
¶17 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdict, and the sentence was within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶18 After filing of this decision, defense counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do no more than inform Appellant of the status of the appeal and of his future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
III. CONCLUSION
¶19 Appellant's convictions and sentences are affirmed. However, we modify the trial court's December 9, 2010 sentencing minute entry to reflect that Appellant's presentence incarceration credit is sixty rather than forty-one days.
LAWRENCE F. WINTHROP, Chief Judge
CONCURRING:
MAURICE PORTLEY, Presiding Judge
PATRICK IRVINE, Judge