Opinion
No. 2 CA-CR 2016-0002
07-21-2017
THE STATE OF ARIZONA, Appellee, v. AARON L. SHARPE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201202134
The Honorable Craig A. Raymond, Judge Pro Tempore
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Staring and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 After a jury trial, Aaron Sharpe was convicted of conspiracy to commit armed robbery and/or theft, armed robbery, kidnapping, aggravated assault with a deadly weapon or dangerous instrument, theft, and misconduct involving weapons. The trial court sentenced him to concurrent and consecutive prison terms totaling twenty-four years. On appeal, Sharpe argues he was denied his right to counsel and that the court failed to "timely sentence [him] after a verdict had been rendered." We affirm.
¶2 Sharpe's convictions stem from a 2011 armed robbery. His first trial ended in a mistrial because counsel for a codefendant became unavailable due to a medical condition. Shortly thereafter, his counsel was suspended from the practice of law for sixty days. Two weeks after the mistrial was declared, Sharpe requested new counsel, claiming his trial counsel had not visited him or returned his telephone calls since the mistrial.
¶3 At a hearing on that request, Sharpe asserted his trial counsel had not been prepared for trial and, "with all the times that he's saying he's going to come and show up and he never shows up," Sharpe had "no communication" with counsel and "there is no kind of trust there with me and this attorney no longer." The court denied Sharpe's request for new counsel, noting that current counsel had been prepared for trial and that it would order counsel to make contact with Sharpe immediately after his suspension ended and to be ready for trial. After a second trial, Sharpe was convicted and sentenced as described above. This appeal followed.
¶4 Sharpe first argues his Sixth Amendment right to counsel was violated, constituting structural error. He focuses on the time period between the mistrial and the end of counsel's suspension, claiming he was "proceeding without the assistance of counsel" for that time. "The Sixth Amendment right to counsel extends to all critical stages of the criminal process." State v. Gunches, 240 Ariz. 198, ¶ 10, 377 P.3d 993, 997 (2016). And the denial of the right to counsel can constitute structural error, requiring reversal "regardless of whether an objection is made below or prejudice is found." State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36 (2009). Sharpe has not identified any stage of his proceeding at which he was required to proceed without counsel—substitute counsel represented Sharpe at each of his court appearances until trial counsel's suspension ended.
¶5 The core of Sharpe's complaint is instead that counsel failed to communicate with him adequately. In such circumstances, the right to counsel is violated only if there is "a complete breakdown in communication or an irreconcilable conflict between a defendant and his . . . counsel." State v. Paris-Sheldon, 214 Ariz. 500, ¶ 12, 154 P.3d 1046, 1051 (App. 2007), quoting State v. Torres, 240 Ariz. 340, ¶ 6, 93 P.3d 1056, 1058 (2004). But Sharpe does not develop any argument that the communication gaps he describes constitute a complete breakdown in communication. Nor does he develop an argument the trial court abused its discretion in denying his request for new counsel. See State v. Goudeau, 239 Ariz. 421, ¶ 68, 372 P.3d 945, 970 (2016) ("A trial court abuses its discretion by summarily denying a motion for change of counsel without inquiring into the 'specific factual allegations that raised a colorable claim that [the defendant] had an irreconcilable conflict with his . . . counsel.'"), quoting Torres, 208 Ariz. 340, ¶ 9, 93 P.3d at 1059 (alteration in Goudeau). Thus, Sharpe has waived this claim on appeal and we do not address it further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on appellate review).
¶6 Sharpe next asserts the trial court violated Rule 26.3, Ariz. R. Crim. P., by allowing his sentence to be delayed more than sixty days. Under Rule 26.3(a)(1), sentencing must occur between fifteen and thirty days after the verdict. "If a pre-sentencing hearing is requested under Rule 26.7, or if good cause is shown, the trial court may reset the date of sentencing within 60 days after the determination of guilt." Ariz. R. Crim. P. 26.3(b). "The time limit is not jurisdictional." State v. Smith, 112 Ariz. 208, 209, 540 P.2d 680, 681 (1975). It is in place to allow "the probation department sufficient time to prepare a thorough presentence report." State v. Carter, 151 Ariz. 532, 534, 729 P.2d 336, 338 (App. 1986).
¶7 Even assuming a violation of Rule 26.3 would constitute reversible error, Sharpe did not object below and, indeed, requested numerous times that his sentencing hearing be continued. Accordingly, he has forfeited review for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Because he does not argue this purported error was fundamental, and we see no reason it could be so characterized, he has waived the argument on appeal. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it).
¶8 We affirm Sharpe's convictions and sentences.