Opinion
No. 1 CA-CR 15-0536
03-01-2016
STATE OF ARIZONA, Appellee, v. MICHAEL PAUL LEWANDOWSKI, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Janelle A. McEachern, Attorney at Law, Chandler By Janelle A. McEachern 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CR201200641
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:
¶1 Michael Paul Lewandowski ("Defendant") appeals from his convictions and sentences for several drug offenses. Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), advising this Court that after a search of the entire appellate record, no arguable ground exists for reversal. Defendant was granted leave to file a supplemental brief in propria persona, and did not do so.
¶2 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and 13-4033(A)(1) (West 2015). Finding no reversible error, we affirm.
Facts and Procedural History
We view the evidence in the light most favorable to sustaining the convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293 (1989). --------
¶3 In July 2011, officers executed a search warrant on Defendant's home. Inside the home, officers found drug ledgers, as well as several indicia of drug sales, including a digital scale with white residue, a plastic spoon, a package of small Ziploc-type bags, and five plastic bags containing methamphetamine. The bags weighed 1.2 grams, 3.8 grams, .7 grams, and .4 grams. The officers found a marijuana pipe and a bag of marijuana in Defendant's pocket. When the officers interviewed Defendant, he admitted the drugs in the house were his, but he denied he was selling drugs.
¶4 Defendant was indicted on count 1, possession of dangerous drugs for sale (methamphetamine); count 2, possession of drug paraphernalia (methamphetamine); count 3, possession of marijuana; and count 4, possession of drug paraphernalia (marijuana).
¶5 At the time of Defendant's arraignment, he signed a release questionnaire containing the following warning:
You have the right to be present at your trial and a number of proceedings of which you will be notified. If you do not appear at the time set by the Court, a warrant will be issued for your arrest and the proceedings will begin without you.
¶6 Defendant absconded and the state requested the trial proceed in absentia. The court granted the prosecution's request, and at the end of the trial the jury found Defendant guilty on all charges.
¶7 At sentencing, the trial court sentenced Defendant to a mitigated term of five years as to count one, a mitigated term of four months for count two, and probation for counts three and four.
Discussion
¶8 We have read and considered counsel's brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and substantial evidence supported the finding of guilt. Defendant was represented by counsel at all critical stages of the proceedings. At sentencing, Defendant was present and both Defendant and his counsel were given an opportunity to speak. Finally, the court imposed a legal sentence.
¶9 We find no error regarding the court's decision to proceed with Defendant's trial in absentia. A defendant has a due process right to be present at trial; however, he may waive that right by voluntarily failing to appear. State v. Holm, 195 Ariz. 42, 43, ¶ 2 (App. 1998); Ariz. R. Crim. P. 9.1. A court may infer a defendant voluntarily waived his presence at trial, even if the defendant does not have actual notice of the trial date, if the defendant was: (1) advised of his right to be present at trial, and (2) he received a warning the trial will go forward in his absence should he fail to appear. State ex rel. Romley v. Superior Court, 183 Ariz. 139, 144-45 (App. 1995).
¶10 Additionally, a defendant has an obligation to stay in contact with his attorney and the court concerning his trial dates, and if he fails to do so, the court may consider this failure as a factor in determining whether the defendant's absence was voluntary. State v. Love, 147 Ariz. 567, 570 (App. 1985). Finally, for the purpose of showing a voluntary waiver, a statement in a release order signed by a defendant advising him as to his right to be present and warning him trial will proceed in his absence is sufficient. State v. Pena, 25 Ariz. App. 80, 81 (1975).
¶11 Here, Defendant signed a release questionnaire advising him of his right to be present at trial and warning him that should he fail to appear trial would go forward in his absence. However, defendant absconded, failed to maintain contact with his attorney, and failed to appear at trial. There is no evidence in the record showing that Defendant's absence was involuntary or that he was prevented from attending trial. As a result, we find no error.
¶12 Counsel's obligations pertaining to Defendant's representation in this appeal have ended. Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.