Opinion
No. 1 CA-CR 18-0012
01-24-2019
STATE OF ARIZONA, Appellee, v. KRISTOPHER COOLEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Vineet Mehta Shaw Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Jesse Finn Turner Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
No. CR2016-151245-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Vineet Mehta Shaw
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined. SWANN, Judge:
¶1 Kristopher Cooley appeals his convictions and sentences for burglary in the third degree and theft. He contends the superior court erred by dismissing his motion for new trial. We affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶2 On April 4, 2017, the superior court informed Cooley personally that trial would commence on July 27, 2017, and directed him to appear. The court previously informed Cooley that if he failed to appear, then trial could proceed in his absence and a warrant issued for his arrest. Cooley did not appear for his four-day trial, and defense counsel could not explain Cooley's absence.
¶3 The jury considered evidence of Cooley taking a gas station clerk's bicycle from a fenced enclosure and found him guilty on August 3, 2017, of both burglary in the third degree and theft. The jury also found Cooley was on probation when he committed the offenses.
¶4 Cooley was subsequently arrested on a bench warrant, and, with newly appointed counsel, notified the court on October 10, 2017, of his intention to move for a new trial pursuant to Ariz. R. of Crim. P. Rule ("Rule") 24.1, arguing he was absent from trial because trial counsel misinformed him of the trial dates. After setting an October 27, 2017 deadline for Cooley to file a motion for new trial, which Cooley met, the court denied the motion as untimely. At sentencing, Cooley admitted having an additional prior felony conviction, and the court imposed a jail term for the misdemeanor theft conviction that ran concurrently to the 10-year prison term imposed for the burglary conviction. Cooley appeals.
DISCUSSION
¶5 Cooley argues that the superior court committed fundamental error by denying his new trial motion without considering evidence showing his absence from trial was involuntary.
¶6 The court did not err, fundamentally or otherwise. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (noting first step in fundamental error review is determining whether error exists). At the time of Cooley's 2017 trial, Rule 24.1(b) stated: "A motion for a new trial shall be made no later than 10 days after the verdict has been rendered." The 10-day time limit is jurisdictional. See State v. Hill, 85 Ariz. 49, 53-54 (1958) (holding time limit in predecessor to Rule 24.1 is jurisdictional and superior court's granting of untimely motion was void for lack of jurisdiction). As the court ultimately determined, it did not have jurisdiction to extend the deadline for filing a new trial motion beyond August 13, 2017, the tenth day after the verdicts were announced. Consequently, the court correctly dismissed Cooley's untimely motion for new trial.
CONCLUSION
¶7 Cooley's convictions and sentences are affirmed.