Opinion
No. 1 CA-CR 14-0651
11-17-2015
STATE OF ARIZONA, Appellee, v. LEROY MONTGOMERY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Colby Mills Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Margaret M. Green 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-006324-001
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Margaret M. Green
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Patricia K. Norris joined. KESSLER, Judge:
¶1 Appellant, Leroy Montgomery ("Montgomery") appeals his sentences for attempt to commit second degree murder, aggravated assault, unlawful discharge of a firearm, and misconduct involving weapons. He argues that the sentences were illegal because the trial court failed to provide him an opportunity to allocute prior to imposing the sentences, and requests that the case be remanded for resentencing. For the following reasons, we affirm Montgomery's sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 Following a jury trial, Montgomery was found guilty of one count of attempt to commit second degree murder, a class 2 dangerous felony; one count of aggravated assault, a class 3 felony; one count of unlawful discharge of a firearm, a class 6 felony; and, one count of misconduct involving weapons, a class 4 felony.
¶3 At sentencing, several people were allowed to speak on the victim's behalf. Thereafter, Montgomery had two of his family members speak on his behalf. The court then asked whether the defense had "[a]nything further" to add. The question was expressly directed to defense counsel. In response thereto, defense counsel asked whether the judge would prefer that she "come to the podium or stay at the table." Upon receiving assurance from the trial court that "[t]he table is fine," defense counsel proceeded to give her concluding statement, wherein she emphasized mitigating factors. In giving her concluding statement, defense counsel's opening sentence included the words "Your Honor, . . . we've heard from both sides." Subsequently, the trial court sentenced Montgomery to four concurrent terms of imprisonment, totaling 20 years. Montgomery raised no objections during the sentencing hearing.
¶4 Montgomery did not challenge his convictions, but appealed his sentences, arguing that the trial court failed to provide him an opportunity for allocution at the sentencing hearing and asking us to remand for resentencing. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(4) (2010).
We cite the current version of the applicable statute when no revisions material to this decision have since occurred. --------
ISSUES AND STANDARD OF REVIEW
¶5 The issue on appeal is whether the trial court's question to defense counsel if she had "anything further" to add at the sentencing hearing satisfied Montgomery's right to have an opportunity of allocution.
¶6 Because Montgomery did not object below, we review for fundamental error. State v. Hunter, 142 Ariz. 88, 90 (1984). Only fundamental error may be raised for the first time on appeal. State v. Bible, 175 Ariz. 549, 572 (1993) (internal quotation and citations omitted). See also State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (holding that a defendant who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases that involve fundamental error). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Hunter, 142 Ariz. at 90. To be fundamental, the error "must be clear, egregious, and curable only via a new trial." State v. Gendron, 168 Ariz. 153, 155 (1991). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20.
DISCUSSION
¶7 In Arizona, a defendant who has been found guilty of a crime has a due process right to speak on his or her own behalf prior to sentencing. See Arizona Rule of Criminal Procedure ("Ariz. R. Crim. P.") 26.10(b)(1). The purpose of allocution is to allow the defendant to make a mitigating statement for the judge to consider in determining the sentence. State v. Nelson, 122 Ariz. 1, 2 (1979).
¶8 The Arizona Supreme Court has held that defense counsel may speak for his client in exercising the right of allocution. State v. Davis, 112 Ariz. 140, 141 (1975). In Davis, the court explained that a response by defense counsel satisfies the constitutional right of allocution as well as Rule 26.10(b)(1) because defense counsel "represents and stands in the stead of his client when addressing the court." Davis, 112 Ariz. at 141. See also State v. Garrison, 25 Ariz. App. 470, 472 (1976) (holding that defendant was not denied the opportunity to speak on his own behalf before sentence was pronounced when his counsel was given an opportunity to speak).
¶9 Furthermore, the right to allocution is not absolute. State v. Anderson, 210 Ariz. 327, 350, ¶ 100 (2005). Even in situations when a court fails to invite the defendant to speak, "there is no need for resentencing unless the defendant can show that he would have added something to the mitigating evidence already presented." State v. Hinchey, 181 Ariz. 307, 313 (1995).
¶10 Here, Montgomery contends that he was denied the opportunity to speak on his own behalf before the sentence against him was pronounced. Montgomery emphasizes the fact that the sentencing judge neither addressed him personally, nor asked defense counsel whether there was "any cause why judgment should not be pronounced." Therefore, Montgomery claims that the sentences imposed upon him by the trial court were illegal. Moreover, Montgomery argues that the failure to provide him an opportunity to personally address the court prevented the trial judge from obtaining a balanced perspective of the case and, thereby, deprived Montgomery of a fair sentencing procedure.
¶11 We disagree with Montgomery. Montgomery was not denied the right of allocution because the trial court specifically asked defense counsel by name whether she had "anything further" to add before the court pronounced sentence. This was sufficient under our case law. Contrary to Montgomery's argument, a trial court need not use a specific set of magic words to give the defendant an opportunity of allocution. Asking whether defense counsel had anything else before sentencing was pronounced is sufficient. See, e.g., Davis, 112 Ariz. at 141; Garrison, 25 Ariz. App. at 472.
¶12 In addition, even if there was a hypothetical error, which there was not, Montgomery fails to show that he would have added something to the mitigating evidence already presented if he had spoken personally prior to sentencing. Under these facts, we find that to the extent there was any error, it was so insubstantial that resentencing is not warranted. Anderson, 210 Ariz. at 350, ¶ 100 (citing Hinchey, 181 Ariz. at 313).
¶13 This Court has stated that the better practice for compliance with a defendant's right of allocution would be for the trial judge to unambiguously address the defendant by name in asking questions. State v. Ballantyne, 128 Ariz. 68, 72 (App. 1981). However, Ballantyne does not stand for the proposition that any deviation from such standard of better practice would constitute fundamental error or require resentencing. Moreover, the plain language of Ariz. R. Crim. P. 26.10(b)(1) provides that the court shall "[g]ive the defendant an opportunity to speak on his or her own behalf." (emphasis added). Accordingly, to the extent Montgomery argues that an Arizona court must address a defendant personally in order to comply with its obligation under Rule 26.10(b)(1), or that a defendant must in fact exercise his right to allocute by making a statement either directly or through counsel, we reject his arguments.
CONCLUSION
¶14 For the foregoing reasons, we find no fundamental error. Accordingly, we deny Montgomery's request for resentencing and affirm his sentences.