State v. Powels ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DOUGLAS ANTHONY POWELS, Appellant.
No. 1 CA-CR 13-0347
FILED 06-10-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-150344-001
The Honorable Virginia L. Richter, Judge Pro Tempore
JUDGMENT AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Adams
Counsel for Appellant
STATE v. POWELS
Decision of the Court
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878(1969), following Douglas Anthony Powels's conviction of criminal
trespass, a Class 6 felony. Powels'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, 284-85 (2000); Anders, 386 U.S. 738; State v.
Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Powels 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 Powels's conviction and sentence,
but modify the judgment of conviction to omit the requirement that he
pay for the cost of DNA testing.
FACTS AND PROCEDURAL HISTORY
¶2 Police stopped Powels on his bicycle early one morning.1
While officers were running a records check, Powels fled, eventually
jumping a fence into the backyard of a home. Officers found Powels
hiding in a bedroom closet inside the home. At trial, the owners of the
home testified Powels did not have permission to enter the house. A jury
convicted Powels of criminal trespass, and after he stipulated to three
historical prior felony convictions, the court sentenced him to the
presumptive term of 3.75 years' imprisonment.
1 Upon review, we view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all inferences against Powels. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
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STATE v. POWELS
Decision of the Court
¶3 Powels timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and -4033 (2014). 2
DISCUSSION
A. Issues Suggested in Opening Brief.
¶4 Powels asked his appellate counsel to suggest that his trial
attorney failed to adequately inform him of the terms of a plea offer. Such
an argument is a claim of ineffective assistance, which we will not review
on appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002)
("ineffective assistance of counsel claims are to be brought in Rule 32
proceedings"). In any event, the record illustrates that Powels was
informed of the terms of the State's plea offer. During the comprehensive
pre-trial conference, the court reviewed the plea offer with Powels and
informed him of the sentence he faced if he declined the offer and was
found guilty. Powels also suggests the superior court failed to conduct a
hearing pursuant to State v. Donald, 198 Ariz. 406, 411-12, 418, ¶¶ 11, 45, 10
P.3d 1193, 1198, 1205 (App. 2000). To the extent Powels argues the court
failed to inform him of the terms of the plea offer, as stated above, this
argument is without merit. To the extent Powels's argument is directed at
the conduct of his counsel, it constitutes a claim of ineffective assistance of
counsel, which we will not review on appeal. See State ex rel. Thomas v.
Rayes, 214 Ariz. 411, 414, ¶ 16, 153 P.3d 1040, 1043 (2007) (claim based on
Donald is an ineffective assistance of counsel claim, which may be brought
only pursuant to Arizona Rule of Civil Procedure 32).
¶5 Finally, Powels suggests the superior court erred by ruling
the State could offer into evidence tape recordings of Powels's jail
telephone calls because the State did not disclose the evidence until after
trial began. This argument is moot, however, because Powels never
testified and the evidence, which was intended only for impeachment
purposes, was never introduced.
B. Due Process Review.
¶6 The record reflects Powels received a fair trial. He was
represented by counsel at all stages of the proceedings against him and
2 Absent material revision after the date of the alleged offense, we
cite a statute's current version.
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STATE v. POWELS
Decision of the Court
was present at all critical stages. The court held appropriate pretrial
hearings.
¶7 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members with two alternates. 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 a unanimous verdict,
which was confirmed by juror polling. The court received and considered
a presentence report and addressed its contents during the sentencing
hearing.
¶8 The superior court also ordered Powels to "submit to DNA
testing for law enforcement identification purposes and pay the applicable
fee for the cost of that testing in accordance with A.R.S. § 13-610." In an
opinion issued after sentencing in this matter, this court held that A.R.S. §
13-610 (2014) does not authorize the court to require a convicted
defendant to pay the DNA testing fee. State v. Reyes, 232 Ariz. 468, 472, ¶
14, 307 P.3d 35, 39 (App. 2013). Accordingly, we modify the judgment of
conviction to omit the requirement that Powels pay the cost of DNA
testing.
CONCLUSION
¶9 We have reviewed the entire record for reversible error, and
with the exception of the requirement that Powels pay for DNA testing,
we find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶10 After the filing of this decision, defense counsel's obligations
pertaining to Powels's representation in this appeal have ended. Defense
counsel need do no more than inform Powels 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
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STATE v. POWELS
Decision of the Court
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). On the court's own motion, Powels has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration. Powels has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
:gsh
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