Opinion
No. 1 CA-CR 11-0073
01-03-2012
STATE OF ARIZONA, Appellee, v. JOHNATHAN MCALLISTER, SR., Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Jonathan McAllister, Sr. Appellant
NOTE: 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. 31.34
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2008-120957
The Honorable Michael D. Jones, Judge
AFFIRMED
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee
Phoenix Bruce Peterson, Maricopa County Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant
Phoenix Jonathan McAllister, Sr. Appellant
Tucson TIMMER , Presiding Judge
¶1 Johnathan McAllister, Sr., appeals from the trial court's denial of his motion to vacate judgment after a jury found him guilty of two counts of sale of marijuana while on probation for another felony conviction. This court previously affirmed McAllister's convictions and resulting sentences. See State v. McAllister, 1 CA-CR 08-1067, 2010 WL 2966289 (Ariz. App. July 29, 2010) (mem. decision). While that appeal was pending, McAllister filed a motion to vacate judgment pursuant to Arizona Rule of Criminal Procedure ("Rule") 24.2. The trial court denied McAllister's motion in May 2009, while this matter was pending on appeal. In March 2010, McAllister filed a post-conviction relief petition, seeking an order permitting a delayed appeal from the denial of his motion. The State did not object, and the trial court granted this relief. This timely appeal followed.
We set forth the background of the case in the initial decision, and we do not repeat those facts in this decision.
¶2 McAllister's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire record on appeal, he found no arguable question of law that is not frivolous. McAllister filed a supplemental brief in propria persona, presenting several issues. For the following reasons, we affirm the trial court's denial of McAllister's motion to vacate judgment.
DISCUSSION
¶3 Rule 24.2 authorizes the court to vacate a judgment on any of the following grounds: (1) lack of jurisdiction, (2) newly discovered material facts probably exist that would likely change the outcome of the trial, or (3) the State obtained the conviction in violation of the defendant's constitutional rights. McAllister argues the court erred by refusing to vacate the judgment for the first and third reasons.
I. Lack of jurisdiction
¶4 McAllister argues the trial court lacked jurisdiction to adjudicate the charges due to alleged errors and irregularities in the grand jury proceedings, including purported acts of prosecutorial misconduct. We disagree. The superior court has exclusive jurisdiction to adjudicate felonies, like the ones McAllister was charged with committing. Ariz. Const. art. 6, § 14; Ariz. Rev. Stat. ("A.R.S.") § 22-301 (Supp. 2010). Any errors in indicting McAllister did not deprive the court of jurisdiction to adjudicate the case and rule on all objections, including McAllister's claims of error. Additionally, the technical errors in the indictment that McAllister alleges, such as the failure to sign the indictment under penalty of perjury or list the name of the accuser, are defects relating to the court's jurisdiction over McAllister rather than jurisdiction over the offenses. State v. Superior Court (Clough), 7 Ariz. App. 170, 175, 436 P.2d 948, 953 (1968). McAllister waived his arguments concerning such defects by failing to raise them before entering his not-guilty plea. Id. at 175-76, 436 P.2d at 953-54.
II. Deprivation of constitutional rights
A. Pre-indictment delay
¶5 McAllister argues the State violated his due process
rights by waiting approximately seven months before charging him with the offenses. He contends that as a result of this delay, the State denied him adequate notice of the charges. To warrant dismissal based on pre-indictment delay, a defendant must show "the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay." State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988). Beyond blanket allegations, McAllister has not shown how the prosecution purportedly gained a tactical advantage by the delay, nor has he shown how he was prejudiced by the delay. We therefore reject these contentions.
McAllister committed the offenses in late August 2007; the State filed a formal complaint on April 7, 2008, which was followed by a grand jury indictment on June 6.
B. Grand jury proceedings
¶6 McAllister contends the State engaged in racial discrimination and prosecutorial misconduct during the grand jury proceedings. He fails to develop either argument. The "sole procedural vehicle for challenging grand jury proceedings is by a rule 12.9(a)" motion filed pursuant to the Arizona Rules of Criminal Procedure. State v. Young, 149 Ariz. 580, 585-86, 720 P.2d 965, 970-71 (App. 1986). No such motion was filed here, and we discern no error.
C. Indictment
¶7 McAllister next argues his grand jury indictment charged him simply with a "marijuana violation" and did not state an offense pursuant to Arizona statutes in violation of his rights under the Fifth Amendment to the United States Constitution. The grand jury stated in the indictment that it charged McAllister pursuant to A.R.S. § 13-3405 (2010) for both counts. His argument therefore has no basis in fact, and we reject it.
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
D. Mental impairment/incompetency
¶8 McAllister argues the trial court failed to "order a psychiatric examination sua sponte," thereby depriving him of his due process rights. At any time after an indictment is returned, "any party may request in writing, or the court on its own motion may order, an examination to determine whether a defendant is competent to stand trial, or to investigate the defendant's medical condition at the time of the offense." Ariz. R. Crim. P. 11.2(a). The trial court has a continuing duty to inquire into a defendant's competency to stand trial whenever there is evidence of his incompetency. State v. Fayle, 134 Ariz. 565, 573-74, 658 P.2d 218, 226-27 (App. 1982).
¶9 McAllister made statements at trial that he had been diagnosed with schizophrenia and was potentially insane when he committed the crimes. These assertions did not compel a conclusion McAllister was potentially incompetent at the time the court adjudicated the case, however. Indeed, at an earlier hearing, McAllister asserted he was competent, and two years earlier the court ruled he was competent in a different proceeding. The record before us supports a conclusion that nothing indicated McAllister may be incompetent during adjudication of this matter. He asked to represent himself, and the court granted that request after engaging in a colloquy and ensuring that McAllister understood the ramifications of the request. Additionally, the trial court described McAllister's motions as "pretty well done." Finally, neither attorney who represented McAllister and interacted with him filed a request for a Rule 11 evaluation. The trial court reasonably discounted McAllister's self-serving assertions of mental impairment in the face of his actions and demeanor during the adjudication of this case.
McAllister represents that at a pre-trial hearing on May 20, 2008, a commissioner stated a Rule 11 hearing would be necessary to determine if McAllister was competent to represent himself. McAllister has not provided us with a transcript of that hearing, and the minute entry does not reflect any discussion of his alleged mental impairment.
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E. Presence at pre-trial conference
¶10 McAllister argues he was not present at a pre-trial status conference on June 3, 2008, in violation of his constitutional right to be present at all stages of trial. State v. Hall, 136 Ariz. 219, 222, 665 P.2d 101, 104 (App. 1983) ("A defendant has a constitutional right to be present in the courtroom at every critical stage of the proceedings against him.") (citation omitted). Assuming the status conference was a "critical stage," the record reflects McAllister's presence at that proceeding. Specifically, the minute entry relating to that conference indicates he was present and that his handwritten motion to proceed pro per, filed the same day, was discussed in open court. We do not detect error.
F. Speedy trial
¶11 McAllister next contends that the five-month period between his arrest and his trial violated his constitutional right to a speedy trial. "Neither the United States nor the Arizona Constitution requires that a trial be held within a specified time period." State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260, 1270 (1997) (citations omitted). Rather, whether the delay warrants reversal of a conviction depends on four factors: "(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has demanded a speedy trial; and (4) the prejudice to the defendant." Id. (quoting State v. Lukezic, 143 Ariz. 60, 69, 691 P.2d 1088, 1097 (1984)). When considering these factors, the court should give the most importance to the prejudice to the defendant and the least importance to the length of the delay. Id. at 139-40, 945 P.2d at 1270-71. The court did not violate McAllister's speedy-trial rights; he did not suffer any prejudice due to the delay, the delay was relatively short, and McAllister himself partially caused the delay by his own requests for continuances.
G. Undercover funds
¶12 McAllister next argues his constitutional rights were
violated because the State failed to prove all elements of the offenses. Specifically, he asserts the State was required to admit in evidence the funds used by the undercover officer to purchase the marijuana. Section 13-3405(A), A.R.S. (2010) provides "[a] person shall not knowingly: . . . sell or transfer marijuana." The statute does not require the State to enter in evidence the funds used to purchase the marijuana. The court did not err.
H. Former counsel's files
¶13 McAllister asserts his appointed counsel failed to turn over his "case file" after McAllister assumed his own representation, and that this failure deprived him of his due process rights. McAllister does not specify which files he was lacking and only points to one instance in which he requested the trial court have his appointed counsel provide him files, which was at a hearing on July 16, 2008. At the time, McAllister was not in custody and could have requested additional copies of documents related to this case from the court or from the clerk's office. Given these alternative means for obtaining any files he needed for his defense, we conclude that any failure by appointed counsel to deliver case files to McAllister was not reversible error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) ("To qualify as 'fundamental error,' . . . the error must be clear, egregious, and curable only via a new trial.").
CONCLUSION
¶14 After the filing of this decision, counsel's obligations pertaining to McAllister's representation in this appeal have ended. Counsel need do no more than inform McAllister 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, 684 P.2d 154, 156-57 (1984). McAllister shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
¶15 For the foregoing reasons, we affirm the order denying McAllister's motion to vacate judgment.
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Ann A. Scott Timmer, Presiding Judge
CONCURRING:
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Daniel A. Barker, Judge
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Patrick Irvine, Judge