Opinion
No. 1 CA-CR 12-0080
05-16-2013
STATE OF ARIZONA, Appellee, v. MICHAEL ANTHONY JEFFERSON, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals and Alice Jones, Assistant Attorney General Attorneys for Appellee Law Office of Nicole Farnum By Nicole T. Farnum Attorney for 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR2010-135286-001
The Honorable Susanna Pineda, Judge
The Honorable Lisa Daniel Flores, Judge (Sentencing)
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals
and Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix Law Office of Nicole Farnum
By Nicole T. Farnum
Attorney for Appellant
Phoenix NORRIS, Judge ¶1 Michael Anthony Jefferson appeals his convictions and sentences for illegal control of an enterprise, money laundering, fraudulent schemes and artifices, trafficking in the identity of another, and three counts of aggravated taking the identity of another. ¶2 On appeal, Jefferson first argues the superior court should have sua sponte instructed the jury it could not consider his prior convictions as evidence of guilt. We disagree. ¶3 Jefferson did not ask for a limiting instruction, and therefore, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); Ariz. R. Crim. P. 21.3(c). As a result, Jefferson must demonstrate failure to give a limiting instruction was error, the error was fundamental, and it caused him prejudice. Henderson, 210 Ariz. at 568-69, ¶¶ 22-26, 115 P.3d at 608-09. A court's failure to sua sponte give a limiting instruction is not, however, fundamental error. State v. Miles, 211 Ariz. 475, 483, ¶ 31, 123 P.3d 669, 677 (App. 2005). ¶4 Next, Jefferson argues he was involuntarily absent beginning on the afternoon of the ninth day of trial and again on the tenth day because of a medical emergency; thus, by finding him voluntarily absent, the superior court deprived him of his right to be present and represent himself. We disagree. State v. Sungia, 145 Ariz. 389, 391-92, 701 P.2d 1197, 1199-1200 (1985) (appellate court reviews superior court's finding that defendant was voluntarily absent for abuse of discretion). ¶5 A court may infer a defendant is voluntarily absent if he fails to appear when he had "personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his [] absence." Ariz. R. Crim. P. 9.1 ("Rule 9.1"). ¶6 Here, all of Rule 9.1's requirements were met. Further, the court found Jefferson's medical emergency excuse was "incredible," "[g]iven his appearance [that] morning," and because "he did not sound like [he was] having issues." Moreover, in light of his failure to appear twice at prior hearings, three late arrivals during trial, and the court's three warnings before trial and three warnings during trial that he could not continue to appear late or fail to appear, the record amply supported the court's finding that Jefferson's medical emergency excuse was "just another delay tactic." ¶7 Events after the jury convicted Jefferson further supported the superior court's finding that he was voluntarily absent. State v. Sanderson, 182 Ariz. 534, 541, 898 P.2d 483, 490 (App. 1995) (in determining whether defendant was voluntarily absent from trial, appellate court may "examine the record following the defendant's apprehension"). First, three days after the jury found Jefferson guilty, he was arrested in Mexico. Second, contrary to Jefferson's assertion that a medical emergency prevented him from appearing in court, in a letter he submitted to the court before sentencing, he explained he did not return to court "because [he] was scared and wanted to clear [his] name." Third, at sentencing, Jefferson did not present any evidence he suffered a medical emergency. ¶8 On this record, overwhelming evidence supported the superior court's finding that Jefferson was voluntarily absent. It did not, therefore, abuse its discretion in trying Jefferson in absentia and appointing advisory counsel to represent him. ¶9 Jefferson next argues his advisory counsel, who resumed his role as Jefferson's attorney when Jefferson did not return to court, was ineffective. We reject this argument. A claim of ineffective assistance of advisory counsel is not recognized on direct appeal. State v. Russell, 175 Ariz. 529, 534-35, 858 P.2d 674, 679-80 (App. 1993). ¶10 Finally, Jefferson argues the court applied the wrong standard in finding he had three historical prior convictions for enhancing his sentence. We agree the court applied the wrong standard -- preponderance of the evidence -- rather than clear and convincing. State v. Cons, 208 Ariz. 409, 415, ¶ 15, 94 P.3d 609, 615 (App. 2004). But, the mistake did not prejudice Jefferson; applying fundamental error review because he failed to object, Henderson, 210 Ariz. at 568-69, ¶¶ 22-26, 115 P.3d at 608-09, the record reflects that applying the correct standard of proof, a reasonable judge could not have reached a different result. Id. at 569, ¶ 27, 115 P.3d at 609 (to establish prejudice, defendant must show a reasonable judge, applying the correct standard of proof, could have reached a different conclusion). ¶11 Here, although the State did not offer a fingerprint expert to match Jefferson's fingerprints to those in the pen pack, a court can consider other evidence to determine whether a defendant has prior convictions. State v. Robles, 213 Ariz. 268, 273, ¶ 16, 141 P.3d 748, 753 (App. 2006). The court admitted a certified copy of Jefferson's pen pack listing his prior felonies, identifying him by his birth date, physical characteristics, and photograph; as well as certified copies of minute entries from Jefferson's prior cases showing his convictions. In addition, Jefferson's probation officer testified he recognized Jefferson from supervising Jefferson's probation on two of his prior convictions. Based on this evidence, a reasonable judge could only have concluded that Jefferson had prior convictions. ¶12 For the foregoing reasons, we affirm Jefferson's convictions and sentences.
Representing himself, on cross-examination of a detective and probation officer, Jefferson elicited testimony he was on probation for prior convictions, including theft.
The superior court was entitled to direct advisory counsel to represent Jefferson in his absence. State v. Whalen, 192 Ariz. 103, 110, 961 P.2d 1051, 1058 (App. 1997).
Jefferson argues advisory counsel was ineffective because he did not move for a mistrial, ask the court to strike the testimony Jefferson had elicited on cross-examination regarding his convictions and probation, or request a limiting instruction regarding this testimony. As discussed, because Jefferson cannot raise an ineffective assistance of counsel claim on direct appeal, we also reject these arguments.
Jefferson mentions on appeal the court should not have found he was on probation. This argument is not properly before us as Jefferson did not make any argument or offer any supporting authority. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (failure to present "significant arguments, supported by authority" in opening brief waives issue).
Although represented by counsel on appeal, Jefferson filed a motion to strike the State's answering brief, claiming it was not timely filed. We disagree, and therefore deny Jefferson's motion.
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PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ___________
ANDREW W. GOULD, Judge
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RANDALL M. HOWE, Judge