Opinion
2 CA-CR 2022-0083
03-16-2023
The State of Arizona, Appellee, v. Gregory Sharp, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee Czop Law Firm PLLC, Higley By Steven Czop Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100889 The Honorable Robert C. Olson, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee
Czop Law Firm PLLC, Higley By Steven Czop Counsel for Appellant
Judge O'Neil authored the decision of the Court, in which Presiding Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Gregory Sharp, who has been diagnosed with schizophrenia, appeals from his sentence on the ground that he was incompetent at the time of his sentencing hearing. For the following reasons, we affirm the trial court's decision.
Factual &Procedural Background
¶2 Sharp was charged with kidnapping, two counts of attempting to commit sexual assault, assault, and disorderly conduct. In August 2021, the trial court appointed a psychologist to conduct a preliminary examination of Sharp's competency to stand trial. See Ariz. R. Crim. P. 11.2(c). The same psychologist had examined Sharp twice before in 2016 and 2020. Based on the psychologist's report, the court found Sharp competent. At trial, a jury found Sharp guilty of kidnapping, two counts of attempted sexual assault, and disorderly conduct, but could not reach a verdict on the assault charge.
¶3 Before sentencing, Sharp requested a mental health examination under Rule 26.5, Ariz. R. Crim. P. The trial court appointed the same psychologist who had conducted the preliminary examination to prepare an updated report. The psychologist also testified at the sentencing hearing. Although the initial purpose of the psychologist's testimony was solely to offer mitigation evidence, Sharp's attorney voiced renewed concerns as to competency and requested a continuance based on the testimony. The court proceeded with the sentencing hearing. Sharp received concurrent sentences, the longest of which was twenty-two years.
While Sharp's trial counsel never made a formal Rule 11 request at sentencing, in our discretion, we choose to address the issue on the merits because the request to delay sentencing arguably preserved the issue for appeal. See Clemens v. Clark, 101 Ariz. 413, 414 (1966) (noting the inclination "to decide cases on their merits and not to punish litigants because of the inaction of their counsel").
¶4 Sharp appealed, and we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 4033(A)(4).
Discussion
¶5 Sharp asserts the trial court abused its discretion by failing to order an additional competency examination before proceeding with sentencing. A trial court "is under a continuing duty to inquire into a defendant's competency, and to order a rule 11 examination sua sponte if reasonable grounds exist." State v. Amaya-Ruiz, 166 Ariz. 152, 162 (1990) (citing Drope v. Missouri, 420 U.S. 162, 181-82 (1975)). The court has broad discretion in determining whether reasonable grounds exist to order a competency hearing. See State v. Salazar, 128 Ariz. 461, 462 (1981). In addition, if a court has previously determined that a defendant is competent to stand trial, "there must be some reasonable ground to justify another [competency] hearing on facts not previously presented to the trial court." State v. Contreras, 112 Ariz. 358, 360-61 (1975). "Reasonable grounds exist when there is sufficient evidence 'to indicate that the defendant is not able to understand the nature of the proceedings against him and to assist in his defense.'" Amaya-Ruiz, 166 Ariz. at 162 (quoting State v. Borbon, 146 Ariz. 392, 395 (1985)).
¶6 We review the trial court's competency determination for an abuse of discretion. State v. Lewis, 236 Ariz. 336, ¶ 8 (App. 2014). We will not reweigh the evidence, but instead will review only whether reasonable evidence supports the court's determination, State v. Arnoldi, 176 Ariz. 236, 239 (App. 1993), overruled on other grounds by State v. Jones, 235 Ariz. 501, ¶ 10 (2014), and the evidence will be "viewed in the light most favorable to upholding the court's ruling," State v. Bunton, 230 Ariz. 51, ¶ 9 (App. 2012) (citing State v. Glassel, 211 Ariz. 33, ¶ 27 (2005)). Here, sufficient evidence exists to uphold the court's decision to sentence Sharp without further examination.
¶7 Sharp argues there was reasonable cause for a new competency examination based on the possible effects of his medication, his comments at sentencing, and testimony that Sharp engaged in psychotic behavior consistent with schizophrenia four weeks before sentencing. But the trial court had already determined that Sharp was competent based on a preliminary examination by the same psychologist, who had previously examined Sharp and was aware of his diagnosis and history. See State v. Muhamad, 253 Ariz. 371, ¶ 48 (2022) (holding that a trial court may rely on a previous competency determination). The court observed Sharp throughout his trial. Despite the psychologist's recent observations suggesting that Sharp had "decompensated," the psychologist did not testify that Sharp was no longer able to understand the nature of the proceedings against him or to assist in his defense.
The updated Rule 26.5 report is not included in the record on appeal. When a document is absent from the record on appeal, we presume the absent document supports the trial court's conclusions. See State v. Mendoza, 181 Ariz. 472, 474 (App. 1995).
¶8 Sharp's schizophrenia diagnosis was known for "the last few years." He had been taking the same anti-psychotic medication since 2017. The psychologist testified that it was possible Sharp's recent psychotic behavior was a result of a failure to take his prescribed medication. Had Sharp been "properly medicated" as of the most recent examination, the psychologist did not "think he would have been so out of it." Sharp indicated he was regularly taking his medication by the time of sentencing.
¶9 We will not substitute our judgment for that of the trial court, and when there is conflicting evidence, we defer to the court's judgment. State v. Jones, 203 Ariz. 1, ¶ 8 (2002). The trial court "has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and . . . can better assess the impact of what occurs before [it]," id., and "may rely, among other factors, on his own observations of the defendant's demeanor and ability to answer questions," State v. Moody, 208 Ariz. 424, ¶ 48 (2004). Considering Sharp's history before the court and behavior at the sentencing hearing, during which Sharp "provid[ed] information and volunteer[ed] information responsive to the conversation," the court concluded there was "no changed circumstance" to warrant further examination. See Contreras, 112 Ariz. at 360-61 (holding that it was proper for the trial court to sentence the defendant without an additional psychiatric examination because there were no new reasonable grounds). The court did not abuse its discretion by determining that no new reasonable grounds required an additional competency examination.
Disposition
¶10 For the foregoing reasons, we affirm Sharp's convictions and sentences.