State v. Campbell ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
ROBERT PAUL CAMPBELL, JR.,
Appellant.
No. 1 CA-CR 18-0466
FILED 8-27-2019
Appeal from the Superior Court in Maricopa County
No. CR2016-001396-001
The Honorable William R. Wingard, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
KBUnited, LLC, Phoenix
By Kerrie M. Droban
Counsel for Appellant
STATE v. CAMPBELL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Robert Paul Campbell, Jr. timely filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), following his convictions of one count of possession of
marijuana, a Class 6 felony, and two counts of possession of drug
paraphernalia, each a Class 6 felony. Campbell's counsel has searched the
record on appeal and found no arguable question of law that is not
frivolous. See Smith v. Robbins, 528 U.S. 259, 284 (2000); Anders, 386 U.S. at
744; State v. Clark, 196 Ariz. 530, 537 (App. 1999). Campbell was given the
opportunity to file a supplemental brief but did not do so. Counsel now
asks this court to search the record for fundamental error. After reviewing
the entire record, we affirm Campbell's convictions and sentences as
modified.
FACTS AND PROCEDURAL BACKGROUND
¶2 Police surveilling Campbell saw him drive away from his
home and eventually pulled him over.1 They found a digital scale in
Campbell's pocket, and, behind the driver's seat of his vehicle, a large
plastic bag labelled "AD Gorilla Glue" containing roughly one pound of
marijuana.
¶3 The State indicted Campbell on one count of transporting
marijuana for sale and two counts of possession of drug paraphernalia,
based on the plastic bag and the digital scale. At trial, the parties stipulated
that Campbell had been lawfully surveilled, arrested and searched. The
jury found Campbell guilty of possession of marijuana as a lesser-included
offense of transporting marijuana for sale and also found him guilty of both
counts of possession of drug paraphernalia. After Campbell admitted to
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Campbell.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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STATE v. CAMPBELL
Decision of the Court
four prior felonies, the superior court sentenced him as a category-three
repeat offender under Arizona Revised Statutes ("A.R.S.") section 13-703
(2019) and imposed concurrent, presumptive terms of 3.75 years'
imprisonment on each count, with 133 days' presentence incarceration
credit.2
¶4 Campbell timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).
DISCUSSION
¶5 Campbell was present and represented by counsel at all
critical stages of the proceedings against him, except that he was not present
for the verdict. "A defendant has a constitutional right to be present at
every stage of a trial under the Sixth and Fourteenth Amendments to the
United States Constitution and Article 2, Section 24 of the Arizona
Constitution." State v. Fitzgerald, 232 Ariz. 208, 214, ¶ 31 (2013). A
defendant nevertheless may voluntarily waive his right to attend trial.
Ariz. R. Crim. P. 9.1; Fitzgerald, 232 Ariz. at 215, ¶ 31. The court properly
may infer that a defendant's absence from trial is voluntary if the defendant
had: (1) "actual notice of the date and time of the proceeding," (2) "notice of
the right to be present" and (3) "notice that the proceeding would go
forward in the defendant's absence." Ariz. R. Crim. P. 9.1.
¶6 The record demonstrates that all three elements of Rule 9.1
were met here. Campbell's counsel made the following statement after the
jury gave its verdicts:
We broke for jury deliberations, and my client had
indicated he wanted to go change his clothes. I told him he
needed to stay close to the building. He said, "I only live
about 15 minutes from here." I said great.
At 2:55 [the] power on my phone was getting low, so I
sent my client a text saying, "Hey, my phone's going to die. I
need you back in court. If you want to wait in the hall, that's
fine."
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. CAMPBELL
Decision of the Court
We did receive a verdict six minutes later. I texted him:
We have a verdict. It is now 3:22. First text was sent at 2:55,
and he's not returned. I did make a phone call at about 3:15.
The phone rang four times and went to voicemail. I've
had no contact with him since we broke for deliberations.
Based on counsel's statement, the court could properly infer that Campbell
chose not to be present in the courtroom even though he knew the jury
might return its verdicts, and thus voluntarily waived his right to be
present. See Ariz. R. Crim. P. 9.1; Fitzgerald, 232 Ariz. at 215, ¶ 31.
¶7 Under Article 2, Section 23 of the Arizona Constitution, a jury
of 12 members must be seated when a criminal defendant is on trial for
charges that carry a potential sentence of 30 or more years. Although the
charges against Campbell carried potential aggravated sentences of more
than 30 years, the jury was comprised of only eight members. See A.R.S. §§
13-703(C), (J), -3405(A)(4) & (B)(10), -3415 (2019). In State v. Soliz, 223 Ariz.
116 (2009), the supreme court held that when a court empanels only eight
jurors in such a situation, it must impose a sentence of less than 30 years.
See Soliz, 223 Ariz. at 119-20, ¶¶ 12-13, 16. Here, consistent with that
requirement, the superior court imposed a sentence of less than 30 years.
¶8 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The court properly instructed the jury
on the elements of the charges, the State's burden of proof and the necessity
of a unanimous verdict. The jury returned guilty verdicts, and, although
neither party requested the court poll the jury, the record does not suggest
a question about unanimity.
¶9 The superior court received and considered a presentence
report, addressed its contents during the sentencing hearing and imposed
legal sentences for the crimes of which Campbell was convicted. Although
the sentencing minute entry states Campbell was convicted of transporting
marijuana for sale, the jury convicted him of possession of marijuana, as the
court correctly noted during sentencing. We modify the sentencing minute
entry to reflect the proper conviction under Count 1. See State v. Ovante, 231
Ariz. 180, 188, ¶¶ 38-39 (2013) (appellate court may correct the minute
entry).
CONCLUSION
¶10 We have reviewed the entire record for reversible error and
find none, and therefore affirm the convictions and resulting sentences as
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STATE v. CAMPBELL
Decision of the Court
modified. See Leon, 104 Ariz. at 300. Although the court granted Campbell
one more day of presentence incarceration credit than was warranted,
absent a cross-appeal by the State, we will not correct the sentence. State v.
Dawson, 164 Ariz. 278, 286 (1990).
¶11 Defense counsel's obligations pertaining to Campbell's
representation in this appeal have ended. Counsel need do no more than
inform Campbell of the outcome of this appeal and his future options,
unless, upon review, counsel finds "an issue appropriate for submission" to
the Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Campbell has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Campbell has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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