Opinion
No. 1 CA-CR 11-0760
06-04-2013
STATE OF ARIZONA, Appellee, v. EDWARD RIVERA, Appellant.
Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Cory Engle, Deputy Public Defender Attorneys for Appellant Edward Rivera Appellant in propria persona
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(Not for Publication -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. CR2007-149441-001
The Honorable Steven P. Lynch, Judge Pro Tempore
AFFIRMED IN PART AND REMANDED
Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Chief Counsel,
Criminal Appeals Section
and Andrew Reilly, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix Edward Rivera
Appellant in propria persona
Florence SWANN, Judge ¶1 Defendant Edward Rivera appeals his convictions and sentences for possession of narcotic drugs for sale and possession of drug paraphernalia. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel searched the record on appeal, found no arguable nonfrivolous question of law, and asked us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant filed a supplemental brief in propria persona in which he raised several issues for appeal. Pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), we ordered and received supplemental briefing from both parties on one of the issues that Defendant raised. ¶2 We find no fundamental error with respect to Defendant's convictions, and we therefore affirm them. But the court did commit fundamental error at sentencing. The court enhanced the sentencing ranges based on two prior felony convictions that Defendant admitted. The state failed to carry its burden to prove that one of the convictions, an eleven-year-old conviction from Illinois, met the class and time requirements of A.R.S. § 13-105(22)(b). We conclude, based on a comparison of the Illinois statute with Arizona law, that the conviction met the class requirement. We remand for an evidentiary hearing on whether the conviction met the time requirement and whether Defendant was prejudiced.
FACTS AND PROCEDURAL HISTORY
¶3 In August 2007, Defendant was indicted for possession of narcotic drugs for sale, a class 2 felony under A.R.S. § 13-3408, and for possession of drug paraphernalia, a class 6 felony under A.R.S. § 13-3415. The state alleged that Defendant committed the offenses while on release from confinement. The state also alleged one aggravating circumstance and four historical prior felony convictions. Defendant was arraigned and entered a plea of not guilty. ¶4 Before trial, Defendant repeatedly asked the court to remove his appointed counsel, alleging that counsel was unmotivated and unprepared. The court denied Defendant's requests. Defendant renewed the requests on the first day of trial and asked for a continuance so that he could earn money to hire a private attorney. Again, the court denied his requests. ¶5 On the second day of trial, Defendant failed to appear or contact his counsel. The court denied his counsel's motion for a mistrial and Defendant was tried in absentia. After considering the evidence and deliberating, the jury was unable to reach a unanimous verdict. Accordingly, the court declared a mistrial and the matter was retried. ¶6 At the second trial, Defendant again failed to appear and again was tried in absentia. During jury selection at the second trial, defense counsel challenged the prosecutor's use of a peremptory strike to exclude the only African-American panelist, arguing that the strike was motivated by the fact that the juror who had caused the mistrial in the first trial was African-American. The prosecutor explained that because the panelist had disclosed previous service on a hung jury, he struck her "to be on the safe side, considering we've already had one hung jury in this case[.]" The court found that the prosecutor's explanation provided a race-neutral reason for the strike, and therefore denied the defense challenge. ¶7 After the jury was impaneled, the state presented evidence of the following facts. On July 31, 2007, Mesa Police Department Officers Dustin Pepper and Isaac Brenneman saw Defendant commit a traffic violation while driving through an intersection. Officer Pepper attempted to initiate a traffic stop by driving behind Defendant while using his patrol car's overhead lights, siren, and loudspeaker, with Officer Brenneman following in his own patrol car. Defendant did not pull over immediately, instead continuing to drive for some distance before making a sudden turn into a residential area, where he stopped his vehicle, exited it and ran. ¶8 Officer Pepper pursued Defendant on foot between houses and through backyards. Officer Brenneman then joined in the chase, and together the officers were able to corner Defendant in a well-lit area behind a drugstore, near a tall block wall. When Officer Brenneman got within a few steps of Defendant, he saw that Defendant was reaching into his pants pocket. Officer Brenneman drew his Taser, commanded Defendant to show his hands, and saw Defendant remove a clear plastic baggie from his pocket and throw it over the block wall. As the baggie went over the wall, Officer Brenneman could see smaller baggies breaking free. ¶9 Officer Pepper tackled Defendant near the wall and placed him under arrest. Shortly thereafter, Officer Jason Moreno arrived at the scene. Officer Brenneman told Officer Moreno about what he had seen Defendant throw over the wall, and asked Officer Moreno to try to recover the items. Officer Moreno contacted the owner of the house that shared the wall and received her permission to search the backyard. In the area that Officer Brenneman had pointed out, Officer Moreno found two plastic baggies on a hot tub cover and one plastic baggie on the ground nearby. He noticed that the baggies contained a white powdery substance, later shown to be 11 grams of cocaine, and multiple empty baggies of smaller size. Officer Moreno testified that in his experience, he would expect to find such items in the possession of someone engaged in the sale of drugs. ¶10 After reading Defendant his rights consistent with Miranda v. Arizona, 384 U.S. 436 (1966), Officer Pepper interviewed Defendant at the scene. Defendant denied having thrown the baggies Officer Moreno recovered from the backyard, but claimed that he had discarded a baggie of marijuana earlier in the chase. Officers searched the area but found no marijuana. ¶11 At the conclusion of the state's case in chief, defense counsel moved for a judgment of acquittal under Ariz. R. Crim. P. 20. The court denied the motion and the defense rested. After hearing closing argument and considering the evidence, the jury found Defendant guilty on both counts. ¶12 Defendant was later arrested on a bench warrant, and the court entered judgment on the jury's verdicts and imposed prison sentences. At sentencing, Defendant agreed to stipulate to two prior felony convictions: a 1996 conviction in Cook County, Illinois, and a 2003 conviction in Maricopa County. In exchange, the state recommended a super-mitigated sentence and agreed not to pursue its allegation that Defendant committed the offenses while on probation. The court accepted Defendant's admissions to the two prior felony convictions as knowing, voluntary, and intelligent. Treating both of the admitted-to convictions as historical prior felony convictions that enhanced the sentencing ranges, the court imposed a super-mitigated prison term of 10.5 years for the possession of narcotic drugs for sale conviction, and a concurrent presumptive prison term of 3.75 years for the possession of drug paraphernalia conviction. The court credited Defendant with 345 days of presentence incarceration. ¶13 This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
I. CONVICTIONS
¶14 We affirm Defendant's convictions. In the first trial, the court denied Defendant's request for a continuance to seek new counsel and told Defendant "we have to proceed to trial." The same day, in Defendant's presence, the jury was selected, given their preliminary instructions, and told to return the following morning. The court did not abuse its discretion by concluding that Defendant's subsequent absence from trial and the proceedings that followed -- including the second trial -- was voluntary and warranted trial in absentia. See State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996). And at the second trial, the state presented sufficient evidence to support Defendant's convictions under both A.R.S. § 13-3408 and § 13-3415. ¶15 Defendant raises three issues in his pro per supplemental brief that relate to his convictions: (1) denial of counsel of choice; (2) violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986); and (3) judicial bias. We consider each of these issues below, and conclude that the superior court did not err with respect to any of them.
A. Counsel of Choice ¶16 An indigent criminal defendant is constitutionally guaranteed the right to representation by competent counsel. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; State v. Torres, 208 Ariz. 340, 342, ¶ 6, 93 P.3d 1056, 1058 (2004). But an indigent defendant is not entitled to his counsel of choice or to a meaningful relationship with counsel -- the defendant's rights are violated only when "there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel[.]" Torres, 208 Ariz. at 342, ¶ 6, 93 P.3d at 1058. ¶17 The superior court has a duty to inquire on the record about the basis for a defendant's motion for removal of appointed counsel, but need not hold an evidentiary hearing on the motion unless the defendant provides sufficiently specific and factually based allegations. Id. at 343, ¶¶ 7-8, 93 P.3d at 1059. To raise a colorable claim, the defendant's allegations "must go beyond personality conflicts or disagreements with counsel over trial strategy" and "allege facts sufficient to support a belief that an irreconcilable conflict exists warranting the appointment of new counsel in order to avoid the clear prospect of an unfair trial." State v. Cromwell, 211 Ariz. 181, 187, ¶ 30, 119 P.3d 448, 454 (2005). ¶18 Here, when Defendant asked the court on various occasions to remove his appointed counsel, he alleged that counsel had "not put effort forward" to help on the case; had not listened to Defendant's version of the facts; had not consulted Defendant before making decisions; had refused to file motions that Defendant requested; and had neither interviewed the police officers, read the police report, nor spoken with Defendant to prepare him for trial. Counsel responded that he believed the conflict was caused by his and Defendant's differing views of the facts and the likely outcome of a trial. Counsel denied any bias against Defendant. He asserted that he had spoken to Defendant about his case in person and "on the phone ad nauseam"; had advised Defendant in writing of the legal reasons for which he declined to file Defendant's requested motions; and had conducted interviews and prepared for trial. On this record, the court did not abuse its discretion by concluding that Defendant's dissatisfaction with his appointed counsel was the result of a personality conflict and disagreement about trial strategy, not an "irreconcilable conflict" warranting removal of counsel. ¶19 Nor did the court abuse its discretion by denying Defendant's motion for a continuance. Whether a defendant's constitutional rights are violated by the denial of his request for a continuance to hire private counsel depends on the circumstances. State v. Hein, 138 Ariz. 360, 368-69, 674 P.2d 1358, 1366-67 (1983). Relevant considerations include
To the extent that Defendant's arguments on appeal challenge the effectiveness of his counsel at trial, we do not consider them. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be raised in a petition for postconviction relief under Ariz. R. Crim. P. 32. Id.
whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory.Id. at 369, 674 P.2d at 1367. Here, Defendant's motion for a continuance was made on the eve of trial, Defendant acknowledged that his ability to hire private counsel would depend on his ability to earn money, and his appointed counsel stated that he was prepared to try the case. The court's denial of Defendant's request for a continuance was reasonable.
B. Batson Challenge ¶20 A racially based peremptory strike of a potential juror is unconstitutional. Batson, 476 U.S. at 89. To challenge a peremptory strike, the defendant must first make a prima facie showing that the strike was based on race. Snyder v. Louisiana, 552 U.S. 472, 476 (2008). If the prosecutor offers a race-neutral reason for the strike, the court must then determine whether the defendant has shown purposeful discrimination. Id. at 476-77. This involves credibility determinations, which the trial judge is in the best position to undertake. Id. at 477. We must sustain the court's conclusion unless it is clearly erroneous. Id. ¶21 Here, defense counsel challenged the prosecutor's use of a peremptory strike to exclude an African-American panelist from the jury. The prosecutor then offered a race-neutral reason for the challenged strike -- the prospective juror's previous participation on a hung jury -- and the court accepted that explanation. This was not clear error.
C. Judicial Bias ¶22 "[A] trial judge is presumed to be free of bias and prejudice." State v. Medina, 193 Ariz. 504, 510, ¶ 11, 975 P.2d 94, 100 (1999) (citation omitted). To rebut this presumption, a party is required to demonstrate bias or prejudice by a preponderance of the evidence. Id. Defendant contends that the trial judge "gave the appearance of being partial, by denying all motions during trial[.]" Our review of the record shows that the only motion made at trial was defense's motion for a judgment of acquittal under Ariz. R. Crim. P. 20. The court's denial of the Rule 20 motion was not an abuse of discretion because the state's evidence was sufficient to support Defendant's convictions. See State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001) ("We review a trial court's denial of a Rule 20 motion for an abuse of discretion and will reverse a conviction only if there is a complete absence of substantial evidence to support the charges."). The denial of the motion was in no way indicative of any judicial bias or prejudice. Further, our independent review of the record shows no evidence of judicial bias or prejudice at any point in the proceedings.
II. SENTENCING
¶23 With respect to sentencing, Defendant contends that the superior court improperly enhanced the sentencing ranges for his convictions based on two prior convictions. We agree that the court committed fundamental error with respect to its use of Defendant's Illinois conviction, because the state failed to carry its burden to show that the Illinois conviction met the class and time requirements to qualify as a historical prior felony conviction under A.R.S. § 13-105(22)(b). As a matter of law, Defendant was not prejudiced by the error with respect to the class requirement. But he is entitled to an evidentiary hearing on whether the state's failure to prove the time requirement prejudiced him.
A. Fundamental Error ¶24 Defendant contends that the court erred because it did not independently confirm the prosecutor's avowal that the Illinois conviction would constitute an Arizona class 2 or class 3 felony, as required for classification as a sentence-enhancing "historical prior felony conviction" under A.R.S. § 13-105(22)(b). We agree that the court's failure to confirm the prosecutor's avowal was fundamental error. As our supreme court explained in State v. Smith,
[b]efore a court may use "a foreign conviction for sentencing enhancement purposes under § 13-604, the superior court must first conclude that the foreign conviction includes 'every element that would be required to prove an enumerated Arizona offense.'" Because the determination of whether a foreign conviction would constitute a felony in Arizona is a question of law, a defendant's admission that he has a prior felony conviction does not relieve the state of its burden to prove that the foreign conviction established "every element that would be required to prove that such offense would be a felony in Arizona." Instead, the trial court must make "this determination by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute."219 Ariz. 132, 134, ¶ 10, 194 P.3d 399, 401 (2008) (citations omitted). ¶25 Further, § 13-105(22)(b) also requires commission of the class 2 or 3 felony "within the ten years immediately preceding the date of the present offense[,]" with "[a]ny time spent on absconder status while on probation, on escape status or incarcerated . . . excluded." The prosecutor alleged that the Illinois offense was committed on April 8, 1996 -- more than ten years before the July 31, 2007 offenses -- but that it met the ten-year requirement of § 13-105(22)(b) because three and a half years were excluded based on Defendant's incarceration in Arizona. The record does not show that the prosecutor provided proof of the incarceration or that Defendant admitted to it. Nor does Defendant now admit to the incarceration or otherwise concede a lack of prejudice. The state failed to meet its evidentiary burden. The court committed fundamental error by accepting the prosecutor's unsupported avowal.
After the prosecutor described the alleged prior conviction and intervening incarceration, the court asked Defendant: "Do you admit that you have those prior felony convictions?" Defendant responded: "Yes, Your Honor." We cannot say that this exchange shows an admission to the alleged incarceration in Arizona as well as the conviction in Illinois.
B. Prejudice ¶26 Of course, a defendant is not entitled to relief from fundamental error unless the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567-68, ¶ 20, 115 P.3d 601, 607-08 (2005). We asked the parties to submit supplemental briefs on the issue of prejudice, and both parties did so. ¶27 As an initial matter, we reject the state's contention that we need not consider prejudice because Defendant invited any error by "affirmatively and strategically admit[ing] his prior convictions." A defendant's admission of a historical prior felony conviction should always be the product of affirmative and informed conduct because it must be made intelligently and voluntarily. State v. Carter, 216 Ariz. 286, 289, ¶¶ 13-14, 165 P.3d 687, 690 (App. 2007). Were such conduct considered invited error, then Smith would have no meaning. ¶28 We next reject Defendant's contention that he was prejudiced as a matter of law because of a lack of conformity between the relevant Illinois statute, 720 ILCS 570/401, and Arizona class 2 and class 3 felonies. First, Defendant argues that the two states' laws do not conform because 720 ILCS 570/401 prohibits the manufacture of "counterfeit substance[s]" and the same conduct is only a class 6 felony under A.R.S. § 13-3453, which prohibits the manufacture of "imitation controlled substances." But "counterfeit substance[s]" for purposes of 720 ILCS 570/401 are always controlled substances, whereas the same is not necessarily true of "imitation controlled substances" for purposes of A.R.S. § 13-3453. Compare 720 ILCS 570/102(g) ("'Counterfeit substance' means a controlled substance, which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance.") (emphasis added) with A.R.S. § 13-3451(4), (2) ("'Imitation controlled substance' means a drug, substance or immediate precursor which does or does not contain a controlled substance that by texture, consistency or color or dosage unit appearance as evidenced by color, shape, size or markings, apart from any other representations, packaging or advertisements, would lead a reasonable person to believe that the substance is a controlled substance but it is a counterfeit preparation," which is defined as "a preparation that has an appearance which imitates another preparation but that, in fact, is a different preparation.") (emphasis added). ¶29 Second, Defendant argues that the intent required under 720 ILCS 570/401 for the offense of transporting drugs for sale differs from the intent required under Arizona law for that offense. But here, the conviction that Defendant admitted to was "manufacturing a controlled substance" -- not transporting a controlled substance. Defendant concedes, and we agree, that the manufacturing crime requires the same type of intent under both 720 ILCS 570/401 and Arizona law. ¶30 Third, Defendant argues that 720 ILCS 570/401 and Arizona law do not treat all drugs the same way. Defendant contends that dihydrocodeinone is treated as a controlled substance in Illinois but not in Arizona. Defendant mistakenly relies on the current version of 720 ILCS 570/401. The version of the statute in effect at the time of Defendant's offense does not list dihydrocodeinone. Compare 720 ILCS 570/401(a)(10.7) (2013) with 720 ILCS 570/401 (1996). Defendant also contends that peyote is treated as a controlled substance under 720 ILCS 570/401 but its possession, sale, or transfer is only a class 6 felony under A.R.S. § 13-3402. Again, Defendant misses the fact that the conviction he admitted to was "manufacturing a controlled substance." The manufacture of mescaline, the principal active ingredient in peyote, is a class 2 felony in Arizona. See State v. Whittingham, 19 Ariz. App. 27, 29, 504 P.2d 950, 952 (1973); A.R.S. §§ 13-3401(6)(x), 13-3407. ¶31 We conclude that there is conformance between the 720 ILCS 570/401 conviction that Defendant admitted to and Arizona class 2 and class 3 felonies, and therefore reject Defendant's contention that he was prejudiced because of a lack of statutory congruence. ¶32 But though the offense that Defendant admitted to would qualify as the type of felony contemplated by A.R.S. § 13-105(22)(b), we cannot ignore the statute's time requirement. In the analogous case of State v. Carter, the court committed fundamental error by failing to ascertain, as required by Ariz. R. Crim. P. 17, that the defendant's admission to a prior conviction was voluntary and intelligent. 216 Ariz. at 289-90, ¶¶ 12-19, 165 P.3d at 690-91. Carter held that unless the record on appeal is sufficient to disprove prejudice, a defendant whose Rule 17 rights have been violated is entitled to a hearing on remand, at which he may provide evidence of prejudice. Id. at 290-91, ¶¶ 20-25, 165 P.3d at 691-92. Carter further held that this is the rule even when the defendant does not challenge the existence of the prior felony, because the burden of proof is not on the defendant but on the state. Id. at 291-92, ¶¶ 26-27, 165 P.3d at 692-93. ¶33 Here, the state failed to carry its burden of proof to show that intervening incarceration allowed the eleven-year-old Illinois conviction to satisfy the time requirement of A.R.S. § 13-105(22)(b). The record on appeal is insufficient to disprove prejudice, and in his appellate briefs, Defendant has neither admitted to the incarceration nor conceded that he was not prejudiced. We therefore remand to the superior court for an evidentiary hearing concerning whether the Illinois conviction was timely for purposes of Defendant's sentencing and whether he was prejudiced by the state's failure to prove timeliness at the sentencing hearing. If prejudice is shown on remand, Defendant's sentences must be vacated and he must be resentenced. We note that if prejudice is shown, Defendant must be resentenced within different sentencing ranges but he is not guaranteed to receive lesser sentences.
Because the offense occurred in 1996, in this section of our decision all citations to Illinois and Arizona law refer to the versions of statutes in effect in 1996, unless otherwise noted.
We note that the superior court record contains a January 25, 2005 minute entry indicating that a 3.5 year sentence was imposed in CR1998-005704. Though the court can take judicial notice of the minute entry, the record still does not establish that Defendant was actually incarcerated for the requisite period.
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CONCLUSION
¶34 We affirm Defendant's convictions. With respect to Defendant's sentences, we remand for further proceedings consistent with this decision.
____________________________
PETER B. SWANN, Judge
CONCURRING: ____________________________
PHILIP HALL, Presiding Judge
____________________________
SAMUEL A. THUMMA, Judge