Opinion
No. 1 CA-CR 14-0316 No. 1 CA-CR 14-0382
10-01-2015
STATE OF ARIZONA, Appellee, v. LAISDEL VIERAS CARDENAS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Tennie B. Martin Counsel for Appellant Laisdel Vieras Cardenas 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. CR2010-147770-001, CR2012-129750-001
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
Laisdel Vieras Cardenas
Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Defendant Laisdel Vieras Cardenas appeals his conviction and sentence for possession or use of a dangerous drug, and the revocation of his probation for an earlier felony offense.
¶2 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant's appellate counsel searched the record on appeal, found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530 (App. 1999). Defendant has filed a supplemental brief in propria persona in which he raises several issues for appeal.
We granted Cardenas several extensions to file his pro per brief. Cardenas timely filed the brief, but also filed several additional requests for extension that we deny as moot. --------
¶3 Having searched the record and considered the briefing, we discern no fundamental error. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶4 The state charged Defendant with possession or use of a dangerous drug and misconduct involving weapons, and alleged that Defendant committed the offenses while on probation and had two prior felony convictions.
¶5 Before trial, Defendant twice moved to change his court-appointed counsel, and the court granted both requests. The court also granted Defendant's motion to withdraw from a plea agreement, and thereafter assigned Defendant a fourth new attorney after his counsel moved to withdraw. The court denied Defendant's subsequent motions to change counsel.
¶6 The matter proceeded to a jury trial, at which the jury found Defendant guilty of possession or use of a dangerous drug but was unable to decide whether he was guilty of misconduct involving weapons. The state presented evidence of the following relevant facts. As of June 5, 2012, Defendant was on probation for a felony offense. On that date, police contacted him at a retail establishment, arrested him, and searched him incident to the arrest. The officers found a large amount of cash in Defendant's pants pocket, including a dollar bill that was folded into a triangle. One of the officers unfolded the bill and discovered a white crystallized substance. Later tests revealed that the substance was 87 milligrams of methamphetamine.
¶7 The jury found that Defendant committed the methamphetamine offense while on felony probation, and the court found that Defendant had two prior felony convictions. The court further found that Defendant was in violation of his probation, and entered judgment on the jury's verdict. The court revoked Defendant's probation and sentenced him to 3.5 years in prison in that matter, with credit for 887 days of presentence incarceration. The court sentenced Defendant to a consecutive term of 10 years for the methamphetamine offense.
¶8 Defendant appeals.
DISCUSSION
¶9 Defendant raises several issues in his pro per brief. We address them in turn.
¶10 Defendant first contends that he was deprived effective assistance of counsel. We do not consider this argument because claims for ineffective assistance of counsel must be raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). To the extent that Defendant contends that his post-plea-withdrawal requests to change counsel should have been granted, we discern no error. Defendant was entitled to representation by competent counsel, but he was not entitled to "counsel of choice, or to a meaningful relationship with his . . . attorney." State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998). Generally, new counsel is required only when there is "an irreconcilable conflict or a completely fractured relationship between counsel and the accused" -- "[a] single allegation of lost confidence in counsel does not require the appointment of new counsel, and disagreements over defense strategies do not constitute an irreconcilable conflict." State v. Cromwell, 211 Ariz. 181, 186, ¶ 29 (2005). Defendant complained that he disliked the manner in which his attorney spoke to him, that his attorney was noncommunicative, and that his attorney did not share discovery with him and would not file a motion he requested. These complaints did not compel the superior court to grant Defendant's motions to change counsel.
¶11 Defendant next contends that the evidence was insufficient to support his conviction. As an initial matter, he asserts that he "was arrested without having committed a crime." Before the case was presented to the jury, the state and Defendant agreed that the state would not mention the forgery investigation and outstanding warrant that led to the arrest. In view of this agreement, the court suggested that the state could establish the basis for the search by asking its witnesses whether the search was conducted pursuant to a lawful arrest. Defendant indicated that he did not object to this approach, and the state took it. On this record, it is clear that Defendant stipulated to the lawfulness of the arrest, so he cannot now complain that the police unlawfully searched his person and opened the folded dollar bill. See State v. Walton, 159 Ariz. 571, 583 (1989) ("The defendant stipulated to the foundation for admitting the gun into evidence, so he cannot now complain of insufficient foundation."), aff'd, 497 U.S. 639 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002); State v. Parra, 104 Ariz. 524, 526 (1969) ("The legality of the arrest not being in question, we hold that the police incident to the arrest could remove defendant's wallet from his person and examine its contents.").
¶12 Defendant next contends that the state failed to meet its burden of proof because the arresting officer did not testify at trial. But because Defendant stipulated to the lawfulness of the arrest, and because one of the other officers who participated in the search testified as to the results of the search, the arresting officer's testimony was not necessary. The testifying officer stated that she personally observed another officer remove the folded dollar bill from Defendant's pocket, and that she herself opened the bill and discovered the methamphetamine. Defendant contends that the officer lied, but her credibility was for the jury to decide. See State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007). The state produced sufficient evidence to prove, as required by A.R.S. § 13-3407(A)(1), that Defendant knowingly possessed methamphetamine, a dangerous drug under A.R.S. § 13-3401(6)(c)(xxxviii). The state also presented sufficient evidence to prove that Defendant committed the offense while on felony probation. We need not address Defendant's contentions regarding the sufficiency of the evidence to show that he committed misconduct involving weapons under A.R.S. § 13-3102 because he was not found guilty on that count.
¶13 Defendant was present and represented at all critical stages. The jury was composed of eight jurors in accordance with A.R.S. § 21-102(B) and Ariz. R. Crim. P. 18.1(a). The prosecutor's arguments were proper.
¶14 Defendant was given an opportunity to speak at sentencing, and the state proved that he had two prior felony convictions. The court imposed a lawful presumptive sentence under A.R.S. §§ 13-3407(B)(1), -703(C) and (J), and -708(C). The court also properly revoked Defendant's probation, a condition of which was abstention from crime, under Ariz. R. Crim. P. 27.8(c)(2) and (e). The court properly imposed a presumptive sentence in the probation matter, which related to a class 3 felony with no alleged priors. See A.R.S. §§ 13-703(H), -708(C). The court also properly ordered the sentences to run consecutively, see State v. Piotrowski, 233 Ariz. 595, 599, ¶¶ 16-17 (App. 2014), and properly applied Defendant's correctly calculated presentence incarceration credit to only one of the sentences, see State v. Cuen, 158 Ariz. 86, 88 (App. 1988). Nothing in the record supports Defendant's contention that he received unfair sentences based on his race, or his contention that the court and prosecutor pressured him to accept a second plea agreement.
CONCLUSION
¶15 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300. Accordingly, we affirm.
¶16 Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.