Opinion
1 CA-CR 12-0061
01-15-2013
STATE OF ARIZONA, Appellee, v. RICARDO RENE MORALES, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys 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(Not for Publication -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. CR2010-115620-001
The Honorable Connie Contes, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Terry J. Adams, Deputy Public Defender
Attorneys for Appellant
Phoenix GEMMILL, Judge ¶1 Morales appeals from his convictions and sentences of aggravated assault, a class six felony, aggravated assault, a class five felony, and resisting arrest, a class six felony. Morales's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Morales was afforded the opportunity to file a pro se supplemental brief but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions." State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On March 12, 2010, Phoenix Police officers were waiting to serve an outstanding arrest warrant on a female subject at a Phoenix home. At approximately 11:30 a.m., Morales arrived at the address in a blue Ford pickup and proceeded inside the house. The officers ran a computer check on the license plate of the pickup and determined there was an outstanding arrest warrant for the owner of the pickup. Officer P. testified that Morales matched the available physical description of the owner of the pickup. ¶4 At this point, Officer P. put on an outer vest which had "POLICE" written across the front. Approximately five minutes later, Morales returned to his vehicle, at which point Officer P. approached Morales and said, "Phoenix Police, put your hands up." Officer P. advanced toward Morales and stated, "you're under arrest." Morales then turned and ran from the officer. ¶5 Officer P. yelled commands to Morales to "stop" and pursued Morales to the side of the house. Morales turned back to Officer P. and threw a punch hitting Officer P.'s chest. Officer P. pushed Morales to the ground. Morales then grabbed a wood board off the ground and hit Officer P. in his right forearm and hand. Officer P. struck Morales several times before Officer T. joined him. Morales continued kicking at both the officers before they placed him in handcuffs. Officer P. suffered a minor injury to his hand, tenderness and pain in his forearm and abrasions from being struck with the board. ¶6 The jury found Morales guilty of count one, aggravated assault, count two, a lesser-included aggravated assault, and count three, resisting arrest. The court found prior to sentencing that the State had proved that Morales had two prior historical felony convictions. The court sentenced Morales to prison terms of 4.25 years for counts one and three and 5.5 years for count two, all terms to be served concurrently. The trial court gave Morales credit for eighty days served in presentence incarceration. ¶7 This court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1)(2003), 13-4031 (2010) and -4033(A)(1)(2010).
DISCUSSION
¶8 Having considered defense counsel's brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. ¶9 We will discuss one specific item: Morales was absent when the jury returned with its verdict. Morales was present during all the other stages of the trial except the return of the verdict. "The defendant has the right to be present at every stage of the trial, including . . . the return of the verdict." Ariz. R. Crim. P. 19.2. The right to attend and to be present at trial, however, is not absolute and may be waived. See State v. Levato, 186 Ariz. 441, 443-44, 924 P.2d 445, 447-48 (1996); State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9, 953 P.2d 536, 539 (1998) (noting "[a] defendant may voluntarily relinquish the right to attend trial"). Rule 9.1 allows the court to infer that a defendant's absence is voluntary if the defendant had notice of the time of the proceeding, the right to be present, and a warning that the trial would continue in his absence. ¶10 When Morales did not appear on the final day of trial, Morales's counsel expressly waived Morales's right to be present before the rendering of the verdict. Moreover, we infer that Morales's absence was voluntary. After closing arguments, Morales was present to hear the instructions to the jury and the discussion regarding the timing of deliberations. The court told Morales that he needed to return for the jury's verdict and warned Morales that "otherwise, [the trial] can proceed in your absence." Furthermore, Morales did not later object to his counsel's waiver or provide evidence that his absence was involuntary. See State v. Fristoe, 135 Ariz. 25, 34-35, 658 P.2d 825, 834-35 (App. 1982) (holding due process does not require the court to hold a voluntariness of absence hearing unless the defendant rebuts the Rule 9.1 inference). We conclude the court did not err in allowing the jury to announce its verdict in Morales's absence. ¶11 The evidence presented supports the convictions, and the sentences imposed fall within the range permitted by law. As far as the record reveals, Morales was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶12 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), counsel's obligations in this appeal have ended. Counsel need do no more than inform Morales of the disposition 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. Morales has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
CONCLUSION
¶13 The convictions and sentences are affirmed.
______________________
JOHN C. GEMMILL, Presiding Judge
CONCURRING: ______________________
MARGARET H. DOWNIE, Judge
______________________
LAWRENCE F. WINTHROP, Chief Judge