Opinion
No. 2 CA-CR 2014-0146
01-30-2015
THE STATE OF ARIZONA, Appellee, v. MARK ALFONSO ARCHUNDE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond 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NOT FOR PUBLICATION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. 31.24.
Appeal from the Superior Court in Pima County
No. CR20131775001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Following a jury trial, Mark Archunde was convicted of possession of a deadly weapon by a prohibited possessor and sentenced to a mitigated term of six years' imprisonment. On appeal, Archunde argues his conviction must be reversed and he must be granted a new trial because the trial court abused its discretion by failing to grant a continuance as a sanction for alleged disclosure violations by the prosecutor. Archunde also argues his sentence should be vacated and he should be resentenced in accordance with the plea agreement that was offered to and rejected by him. For the following reasons, we affirm Archunde's conviction and sentence.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Archunde's conviction. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In February 2013, a Tucson Police Department officer responded to a convenience store where a traffic accident had been reported. The officer approached Archunde's parked vehicle and asked him whether he had been involved in the accident. Archunde denied any involvement. When the officer asked for identification, Archunde stated that his driver's license was suspended. Archunde's vehicle was impounded, and, during an inventory search, a gun was found under the driver's seat.
¶3 Archunde was charged with one count of possession of a deadly weapon by a prohibited possessor. On the first day of trial, Archunde requested a continuance based on an alleged late disclosure by the state. Archunde's counsel stated she had requested "additional disclosure" from the state and had received an e-mail from the prosecutor disclosing an "event chronology which the detective provided." The e-mail also stated that the detective "could not find any information about a traffic accident" in the area "other than what was mentioned in the case report."
Because baggies containing marijuana and methamphetamine were found in the vehicle, Archunde also was charged with one count of possession of marijuana and one count of possession of a dangerous drug (methamphetamine). The trial court granted Archunde's motion to sever the weapon possession charge. Archunde subsequently pled guilty to possession of marijuana, and the dangerous drug charge was dismissed.
Counsel apparently had met with the trial court in chambers to discuss "whether or not there was a plea available" and the state's disclosure of a Pascua Yaqui Police Department report regarding a hit-and-run accident in the area. That discussion is not in the record before us.
¶4 Archunde argued that he had rejected a plea offer because he believed the "officer's credibility was very much in question" since there was no indication there had been a traffic accident. Archunde's counsel stated that, the evening before trial, the state had disclosed a police report indicating Pascua Yaqui Police Department officers had been at the convenience store in response to a traffic accident half an hour before the Tucson Police Department officer's encounter with Archunde. Archunde argued that, "[h]ad [he] had that information at the time that he made a decision about the plea, he would have taken the plea." The trial court found that "the fact that the Pascua Yaqui report wasn't disclosed until yesterday does not prejudice Mr. Archunde under the circumstances" and denied the motion to continue.
The plea offer, the event chronology, and the Pascua Yaqui police report are not in the record on appeal.
Discussion
¶5 We review for an abuse of discretion both the trial court's assessment of the adequacy of disclosure and its decision whether to impose a sanction for late disclosure. State v. Roque, 213 Ariz. 193, ¶ 21, 141 P.3d 368, 380 (2006). We will not reverse the court's decision absent a showing of prejudice. State v. Patterson, 230 Ariz. 270, ¶ 24, 283 P.3d 1, 7 (2012).
¶6 Rule 15.1, Ariz. R. Crim. P., governs the state's disclosure obligations in a criminal case. Archunde argues the state was required to disclose the Pascua Yaqui report under three subsections of Rule 15.1. He first asserts the report falls under "[a]ll then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged." See Ariz. R. Crim. P. 15.1(b)(3). Second, he claims the report falls under Rule 15.1(b)(8), which encompasses "[a]ll then existing material or information which tends to mitigate or negate the defendant's guilt as to the offense charged." Finally, Archunde contends Rule 15.1(e) "obligates the prosecutor to make available to the defendant any completed written reports in connection with the defendant's case."
¶7 The Pascua Yaqui report was not "prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged." Ariz. R. Crim. P. 15.1(b)(3). The hit-and-run accident, in which Archunde was not involved, had no connection to the crime with which he was charged—possessing a deadly weapon as a prohibited possessor. Thus, the state had no obligation to disclose the report under Rule 15.1(b)(3).
¶8 The report also does not fall under Rule 15.1(b)(8) because it does not "tend[] to mitigate or negate the defendant's guilt as to the offense charged, or . . . tend to reduce the defendant's punishment therefor." Whether there had been a hit-and-run accident did not make it less likely that Archunde had committed the weapons offense for which he had been charged, and Archunde does not argue otherwise. Finally, Archunde is incorrect that Rule 15.1(e) requires the state to provide to the defendant "any completed written reports in connection with the defendant's case." Instead, Rule 15.1(e)(3) requires the prosecutor to provide "[a]ny completed written reports, statements and examination notes made by experts . . . in connection with the particular case." Archunde does not suggest the Pascua Yaqui report was made by an expert, and nothing in the record before us indicates that it was. Thus, Rule 15.1 did not obligate the state to disclose the report.
¶9 To the extent Archunde argues the late disclosure violated Brady v. Maryland, 373 U.S. 83 (1963), that argument also fails. Brady establishes that the Constitution "impose[s] on the prosecution a due process obligation to disclose exculpatory evidence that is material on the issue of guilt or punishment." State v. Tucker, 157 Ariz. 433, 438, 759 P.2d 579, 584 (1988), citing Brady, 373 U.S. at 87-88. "Under this doctrine, the defendant is denied a fair trial only if there is a reasonable probability that, had the exculpatory evidence been disclosed, the result of the proceeding would have been different." Id.
The state argues fundamental error analysis applies to Archunde's federal constitutional claim because Archunde failed to raise that argument below. Although Archunde referred generally to the denial of a "substantial procedural right" rather than to Brady specifically, we assume, without deciding, that he has preserved the constitutional challenge and we do not address the fundamental error argument.
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¶10 Here, the Pascua Yaqui police report was neither exculpatory nor material. It was not exculpatory because it did not tend to establish Archunde's innocence. See Black's Law Dictionary 675 (10th ed. 2014) (defining "exculpatory evidence"). Similarly, it was not material because whether there had been a traffic accident in the area was irrelevant to whether Archunde had possessed a deadly weapon as a prohibited possessor. Thus, there was no "reasonable probability" that "the result of the proceeding would have been different" had the state timely disclosed the Pascua Yaqui report. See Tucker, 157 Ariz. at 438, 759 P.2d at 584.
¶11 Even if the state's disclosure could be characterized as a discovery violation, which the trial court apparently assumed, Archunde has failed to show he was prejudiced by the court's denial of his motion for a continuance. Although Archunde claims the late disclosure "prevented [him] from interviewing any potential witness prior to trial or from discovering information which might have affected the verdict," he fails to identify any such witnesses or information. We see no reason to disturb the trial court's decision.
¶12 Archunde suggests he received ineffective assistance of counsel in making the decision to reject the plea offer. He argues his trial counsel relied on the prosecutor's "avowal . . . that a report did not exist" in "advising [Archunde] to reject the plea offer and proceed to trial." He states he had discussed with his counsel accepting the plea agreement versus filing a motion to dismiss or suppress. However, claims of ineffective assistance of counsel may not be raised on direct appeal; rather, they must be raised in a motion for post-conviction relief under Rule 32, Ariz. R. Crim. P. See State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). Thus, we do not address this argument.
Disposition
¶13 For the foregoing reasons, we affirm Archunde's conviction and sentence.