State v. Carter ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDRE F. CARTER, Appellant.
No. 1 CA-CR 18-0101
FILED 5-2-2019
Appeal from the Superior Court in Maricopa County
No. CR 2016-124957-001
The Honorable Peter A. Thompson, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
STATE v. CARTER
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Defendant Andre Carter was given the opportunity
to file a supplemental brief but did not do so. Our obligation is to review
the entire record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999), viewing the evidence in the light most favorable to sustaining
the conviction and resolving all reasonable inferences against Carter, State
v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 On August 1, 2015, undercover officers arrested Carter and
transferred custody to Officer Glass, who searched Carter and found what
he believed to be cocaine. The State then charged Carter with possession or
use of narcotic drugs (cocaine base or hydrolyzed (crack) cocaine), a class 4
felony. Ariz. Rev. Stat. (“A.R.S.”) § 13-3408(A)(1), (B)(1). Carter was also
charged with misconduct involving weapons, a class 4 felony. A.R.S. § 13-
3102(A)(4). The weapons charge was severed prior to trial and is not part
of this appeal.
¶3 At trial, Officer Glass testified that during the search he found
a clear plastic bag inside Carter’s sock containing a “rock that appeared to
be crack cocaine.” When Glass asked Carter what the substance was, Carter
admitted it was “crack.” Forensic testing later confirmed the substance was
cocaine. The jury found Carter guilty as charged, and the superior court
sentenced Carter to a presumptive term of 10 years’ imprisonment as a class
three repetitive offender pursuant to A.R.S. § 13-703(J).1 Carter timely
appealed.
1 The court awarded Carter 59 days of presentence incarceration credit,
but he was only entitled to 58 days. The State did not cross-appeal the
court’s calculation, and thus we have no authority to correct it. State v.
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STATE v. CARTER
Decision of the Court
¶4 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Carter was
represented by counsel and, except as noted below, was present at all
critical stages of the proceedings against him. The evidence presented
supports the conviction, and the sentence imposed falls within the range
permitted by law. As far as the record reveals, these proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure
and Carter’s constitutional and statutory rights.
¶5 The record indicates that Carter was not present at several
pretrial conferences or the last day of trial, including closing arguments and
the return of the verdict. As far as the record reveals, all the absences were
voluntary. See Ariz. R. Crim. P. 9.1 (“[A] defendant’s voluntary absence
waives the right to be present at any proceeding.”); State v. Muniz-Caudillo,
185 Ariz. 261, 262 (App. 1996) (“The trial court may infer that a defendant’s
absence is voluntary if the defendant had personal knowledge of the time
of the proceeding, his right to be present, and the warning that the
proceeding would take place in his absence if he failed to appear.”).
Nothing in the record indicates Carter was not afforded proper notice of the
proceedings he missed, and he was advised repeatedly of the consequences
of his failure to appear. Thus, the superior court could properly infer his
absences were voluntary. For these reasons, we affirm Carter’s conviction
and sentence.
¶6 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, her obligations are
fulfilled once she informs Carter of the outcome of this appeal and his
future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Carter has 30
days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
Dawson, 164 Ariz. 278, 286 (1990) (“In the absence of a timely appeal or
cross-appeal by the state seeking to correct an illegally lenient sentence, an
appellate court has no subject matter jurisdiction to consider that issue.”).
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