Opinion
No. 2 CA-CR 2017-0285
05-07-2018
THE STATE OF ARIZONA, Appellee, v. CARL CHRISTOPH BUTLER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Janelle A. Mc Eachern, Chandler 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NOT FOR PUBLICATION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 Cochise County
No. S0200CR201600792
The Honorable James L. Conlogue, Judge
AFFIRMED IN PART; VACATED IN PART; CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Janelle A. Mc Eachern, Chandler
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 After a jury trial, Carl Butler was convicted of transportation of a dangerous drug for sale, possession of marijuana, and nine counts of possession of drug paraphernalia. The trial court sentenced him to presumptive, consecutive and concurrent prison terms totaling twelve years.
Butler was also convicted of possession of a dangerous drug for sale, but the trial court dismissed that count as a lesser-included offense of the transportation offense.
¶2 Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record but found no "arguable question of law that is not frivolous" to raise on appeal. Consistent with Clark, 196 Ariz. 530, ¶ 32, she has provided "a detailed factual and procedural history of the case with citations to the record" and asks this court to search the record for fundamental error. In our review of the record pursuant to Anders, we identified as a non-frivolous claim whether Butler's convictions for possession of drug paraphernalia based on a "large pipe found in center console" (renumbered Count 9) and a "large pipe contained in sock" (renumbered Count 10) were proper in light of the grand jury having stricken the "large pipe" portion of Count 10 in the indictment. We ordered the parties to file supplemental briefs addressing this question.
After the grand jury struck original Count 6 (possession of drug paraphernalia involving a digital scale with residue) from the indictment, Counts 7 through 13 were renumbered as Counts 6 through 12. In this decision, we refer to the counts as they were renumbered.
¶3 As the grand jury correctly noted, Counts 9 and 10 of the indictment referred to the same pipe. It is clear from the grand jury transcript that although it initially intended to remedy this problem by eliminating Count 10 entirely, it instead decided to keep that count, but to "remov[e] the words 'large pipe contained in' and just charg[e Butler] with the sock as paraphernalia." The amended indictment thus shows that the words "large pipe contained in" were crossed out and initialed, and "True Bill" was handwritten next to that count, which then provided: "On or about January 8, 2016, CARL CHRISTOPH BUTLER, committed possession of drug paraphernalia by knowingly using, or possessing with the intent to use drug paraphernalia, to wit: sock . . . ."
¶4 Despite this change to the indictment, at trial the clerk read the jury a list of charges that included both possession of a "large pipe found in center console" and a "large pipe contained in sock," and the state expressly referred to both of those counts in its opening statement. And, both the oral reading of the verdicts and the written verdict forms showed the jury convicted Butler of both counts. Additionally, at sentencing, the trial court gave Butler concurrent, one-year sentences for all nine of the drug paraphernalia counts, including Counts 9 and 10. Accordingly, the record shows that Butler was convicted of an offense which, according to the express direction of the grand jury, did not appear in the amended indictment.
¶5 Viewed in the light most favorable to sustaining the jury's verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999), the evidence was sufficient to support the verdicts except for Counts 9 and 10, for which there was only evidence of one pipe. See A.R.S. §§ 13-3401(36)(h); 13-3405(A)(1), (B)(1); 13-3407(A)(7), (B)(7), (H); 13-3415(A), (F)(2)(e), (F)(2)(j), (F)(2)(k), (F)(2)(l)(i). As a result of a traffic stop on January 8, 2016, Butler, who was the driver, was arrested; during a search incident to that arrest, an officer discovered in Butler's pants pocket a plastic bag with "13.8 plus or minus 0.1 grams" of methamphetamine, which Butler stated he had brought to Arizona from Kansas. Officers also found the following items in the vehicle: three bags containing "a usable quantity of marijuana" weighing "1.71 grams, plus or minus 0.04 grams"; a digital scale; plastic "seals"; three bags of "hypodermic syringes"; a sock with a glass pipe in the center console of the car; a glass pipe with a "copper Chore Boy" pad; and, a pipe with a white tablet stuffed inside. In addition, Butler's sentences are within the statutory range and were properly imposed, except as corrected below. See A.R.S. §§ 13-702(D), 13-3407(E), (F).
¶6 Although we ordered the parties to file supplemental briefs addressing the discrepancies in the record regarding Counts 9 and 10, Butler did not address the problem before us, to wit, that he was convicted of and sentenced for an offense for which he was not indicted. Instead, he argues fundamental error occurred because he "was charged with two counts describing the same piece of paraphernalia, rendering [his] indictment multiplicitous and implicating [his] rights against [d]ouble [j]eopardy." However, the grand jury was aware of this problem and corrected the indictment accordingly. In light of the concurrent sentences imposed, Butler suffered no prejudice in terms of the punishment he received, a fact he acknowledges in his supplemental brief. He does, however, suggest he was prejudiced by the imposition of an additional conviction.
¶7 In its "simultaneous" supplemental brief, the state addresses the argument Butler raised in his supplemental brief, asserting the amended indictment was not multiplicitous. The state further contends that even if Butler's supplemental brief had properly addressed the discrepancy between the indictment and his conviction for Count 10, which it did not, "he could not have established that it constituted both fundamental and prejudicial error where the jury necessarily found that the sock had been drug paraphernalia when it found that a drug pipe had been contained in that sock." The state urges us to consider this issue waived, as Butler did not challenge his conviction for Count 10 at trial or on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008). The state further points out that Butler had notice of all of the claims in the original indictment and failed to "squarely/meaningfully" challenge them at trial.
Although we ordered the parties to file simultaneous supplemental briefs, after we granted the state's request for an extension, it filed what is, in large part, an answering brief responding to the arguments in Butler's supplemental brief and criticizing his failure to have raised any argument regarding this court's concern with Count 10. We caution the state in the future to abide by the spirit and intent of this court's orders for simultaneous briefing. --------
¶8 Because Butler did not raise the specific issue before us either at trial or in his supplemental brief, to wit, whether he was convicted of an offense for which he was not indicted, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) (arguments not raised below reviewable on appeal only for fundamental, prejudicial error). And although fundamental error is waived if not asserted, Moreno-Medrano, 218 Ariz. 349, ¶ 17, we do not ignore fundamental error when we find it, State v. Fernandez, 216 Ariz. 545, ¶ 32 (App. 2007); see also State v. Smith, 203 Ariz. 75, ¶ 12 (2002) (court may consider waived argument in its discretion). We thus consider whether fundamental, prejudicial error occurred here.
¶9 As previously noted, the grand jury correctly found there was an improper charge in the indictment and corrected it. For reasons that are unclear, however, it appears that neither the parties nor the trial court considered the amended indictment at trial. In State v. Mikels, this court vacated the defendant's conviction because the grand jury had indicted him for "separate and distinct acts" occurring on different days and in different places from those for which he was later convicted. 119 Ariz. 561, 563 (App. 1978); cf. State v. Cummings, 148 Ariz. 588, 590 (App. 1985) (defendant cannot be convicted of crimes not presented to grand jury as part of indictment process). And even assuming without deciding the state is correct that "no rational juror could have failed to find" Butler possessed the sock and that it was drug paraphernalia, or that he originally had been placed on notice he was being charged with possession of a pipe in a sock, those facts are irrelevant to the issue before us—whether Butler was convicted of an offense for which he was not indicted. "No amount of judicial sleight of hand can change the fact that" he was. Mikels, 119 Ariz. at 563.
¶10 Butler was tried for, convicted of, and sentenced for possession of drug paraphernalia consisting of a "large pipe contained in sock," a charge the grand jury explicitly removed from the indictment with good cause, to wit, because there was no evidence to support a conviction of both Counts 9 and 10 as originally charged. "[W]hen only one particular" violation is charged, "a conviction must rest on that charge and not another," and a conviction based on "a charge the grand jury never made against" the defendant is "fatal error." Stirone v. United States, 361 U.S. 212, 218-19 (1960). Moreover, Rule 13.5(b), Ariz. R. Crim. P., provides that a "grand jury indictment limits the trial to the specific charge or charges stated in the . . . grand jury indictment." A conviction for an offense for which a defendant was not indicted is "fundamental error requiring a reversal." Merrill v. State, 42 Ariz. 341, 348-49 (1933). Because Butler's conviction for Count 10 was erroneous, and because such a conviction is inherently prejudicial, we vacate Butler's conviction and sentence for Count 10, possession of drug paraphernalia consisting of a "large pipe contained in a sock." "It is axiomatic that '[c]onviction upon a charge not made would be sheer denial of due process.'" State v. Rivera, 207 Ariz. 69, ¶ 8 (App. 2004), quoting Dejonge v. Oregon, 299 U.S. 353, 362 (1937) (alteration in Rivera).
¶11 Also in our review of the record, we noted that upon the deletion from the indictment of Count 6, Counts 7 through 13 were renumbered as Counts 6 through 12. However, it appears the trial court relied on the original numbering from the indictment in the sentencing order, rather than the numbers set forth in the amended indictment. Accordingly, the sentencing order shall be corrected to reflect the renumbering set forth in the amended indictment.
¶12 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none, save the conviction for Count 10, possession of drug paraphernalia for the pipe contained in the sock. See State v. Fuller, 143 Ariz. 571, 575 (1985). We vacate that conviction and sentence, correct the numbering in the sentencing order as noted above, and affirm Butler's remaining convictions and sentences.