Opinion
1 CA-CR 22-0133 1 CA-CR 22-0503
06-29-2023
STATE OF ARIZONA, Appellee, v. ALVIN LELAND WOOD, Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2019-154355-001 The Honorable Dewain D. Fox, Judge The Honorable Joseph S. Kiefer, Judge
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Jennifer B. Campbell joined.
MEMORANDUM DECISION
WEINZWEIG, JUDGE
¶1 Alvin Leland Wood appeals his conviction and sentence for second-degree burglary. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Wood was seen exiting his van and climbing into the victim's backyard. A neighbor even photographed Wood's van and license plate parked outside the victim's home. The victim later reported that cash and a gun had been stolen from his house, along with his late-wife's social security card and driver's license. A day later, Wood registered for a new license plate and removed all the stickers from the back of his van.
¶3 The State charged Wood with one count of second-degree burglary, a class 3 felony. A public defender was appointed to represent Wood, and his trial was originally set for June 2020, but the superior court granted 13 continuances; 11 requested by Wood. After the final continuance, the trial was set for January 2022.
¶4 Ten days before trial, Wood sought another continuance, asserting he was hiring a private attorney. The superior court refused to grant the continuance. A day before trial, Wood's newly retained private attorney filed a notice of appearance on Wood's behalf. The private attorney sought a continuance and moved to substitute as counsel, alleging that Wood had lost faith in his public defender based on strategic differences.
¶5 The morning of trial, the superior court granted Wood's motion to substitute counsel, but denied his motion to continue, pointing to the large number of prior continuances, the length of time between the offense and scheduled trial date, the lack of trial complexity, the inconvenience to prospective jurors and witnesses, the stress placed on the court's calendar, and the strategic nature of the disagreement with the public defender. Without a continuance, Wood's private attorney withdrew the motion to substitute counsel. The appointed public defender confirmed she was prepared for trial.
¶6 The public defender represented Wood at trial, which lasted three days from jury selection to verdict. Wood's defense portrayed the allegations as a "misunderstanding," claiming he visited the victim's home to look at a camper, and left without entering the home or stealing any items. The jury found Wood guilty of second-degree burglary. The superior court found Wood had one prior felony conviction and sentenced him to the presumptive term of 3.5 years' imprisonment.
¶7 After sentencing, the court set a restitution hearing at the State's request. The victim sought $4,460 in restitution for losses suffered from the burglary: $4,275 to repair damages to his doors, $135 for the gun and holster, and $50 for the cash. The victim testified about the approximate value of each stolen item, and provided documentation for the estimated costs of repairs. The court ordered $4,000 in restitution.
¶8 Wood timely appealed. We have jurisdiction. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1), (3).
DISCUSSION
I. Motion to Continue
¶9 Wood contends the superior court erroneously denied his twelfth motion to continue. We review the denial of a motion to continue for an abuse of discretion. State v. Forde, 233 Ariz. 543, 555, ¶ 18 (2014). We will affirm the court's decision if it is "legally correct for any reason." State v. Espinoza, 229 Ariz. 421, 424, ¶ 15 (App. 2012).
¶10 Courts have "wide latitude" to balance "the right to counsel of choice against the needs of the criminal justice system to fairness, court efficiency, and high ethical standards." State v. Coghill, 216 Ariz. 578, 588, ¶ 40 (App. 2007) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)). When balancing these interests, the court should consider:
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.State v. Hein, 138 Ariz. 360, 369 (1983).
¶11 The superior court did not abuse its discretion when it denied Wood's motion to continue. By that time, the court had already granted 13 continuances, 11 requested by Wood. The public defender was present for trial, avowed she was prepared and presented a well-reasoned defense based on the facts. A continuance on the eve or morning of trial would have inconvenienced witnesses, litigants and prospective jurors. And last, the case was not complex; one felony count with the evidence presented in one day. See Hein, 138 Ariz. at 369 (suggesting the "straightforward" nature of the case did not support a continuance).
We are unmoved by Wood's argument that he was deprived his right to chosen counsel. To begin, the superior court granted Wood's motion to substitute counsel, which Wood's private counsel then withdrew. Nor do we consider an ineffective assistance of counsel argument on direct appeal. Ariz. R. Crim. P. 32; State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).
II. Prosecutorial Misconduct
¶12 Wood next argues prosecutorial misconduct based on the prosecutor's failure to correct the victim's testimony about an earlier burglary. Wood did not object at trial, so we review for fundamental error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Wood must show the alleged error was both fundamental and prejudicial. Id. at 142, ¶ 21.
¶13 We discern no error here. A defendant must show that prosecutorial misconduct caused prejudice. State v. Holsinger, 115 Ariz. 89, 92-93 (1977) (prejudice resulting from false testimony is cured if corrected by further witness examination). At a minimum, Wood concedes that any prejudice was cured by a juror's question and the follow-up testimony.
III. Restitution Order
¶14 And last, Wood argues the superior court erroneously ordered him to pay restitution in the amount of $4,000. We review an order of restitution for an abuse of discretion, viewing "the evidence bearing on a restitution claim in the light most favorable to sustaining the court's order." State v. Lewis, 222 Ariz. 321, 323-24, ¶ 5 (App. 2009). The superior court has substantial discretion in determining the amount of restitution, and we will uphold an order if the amount "bears a reasonable relationship to the victim's loss." State v. Madrid, 207 Ariz. 296, 298, ¶ 5 (App. 2004) (citation omitted).
¶15 We discern no abuse of discretion. Arizona law required the superior court to order restitution for the full economic loss to the victim. See Ariz. Const. art. 2, § 2.1(A)(8); A.R.S. § 13-603(C); State v. Steffy, 173 Ariz. 90, 93 (App. 1992). To qualify for restitution, "(1) the loss must be economic, (2) the loss must be one that the victim would not have incurred but for the criminal conduct, and (3) the criminal conduct must directly cause the economic loss." Madrid, 207 Ariz. at 298, ¶ 5 (citing State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002)).
¶16 The victim testified at trial and offered evidence to support the amount of economic loss, which the State estimated at $4,460. Wood directly caused that loss. The jury found he entered the victim's home illegally, damaging two doors in the process. Wood took multiple items from the home, which were never recovered. The court awarded only $4,000 in restitution, and the record confirms a reasonable relationship to the victim's loss. See Madrid, 207 Ariz. at 298, ¶ 5.
¶17 Even so, Wood contends the court should not have ordered restitution for the stolen property because his conviction was not for theft. That argument fails, too. See State v. Lindsley, 191 Ariz. 195, 197 (App. 1997) (upholding restitution order for loss resulting from a defendant's possession of a stolen wallet, despite never being charged with theft). The restitution award is affirmed.
CONCLUSION
¶18 We affirm.