State v. Bradley ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
VANCE EDWARD BRADLEY, Appellant.
No. 1 CA-CR 14-0229
FILED 9-3-2015
Appeal from the Superior Court in Maricopa County
No. CR 2012-138001-001
The Honorable Hugh E. Hegyi, Judge
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 Cory Engle
Counsel for Appellant
Vance Edward Bradley, Buckeye
Appellant
STATE v. BRADLEY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.
D O W N I E, Judge:
¶1 Vance Edward Bradley appeals his conviction for possession
or use of dangerous drugs (methamphetamine). Pursuant to Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878(1969), defense counsel has searched the record, found no arguable
question of law, and asked that we review the record for reversible error.
See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993).
Bradley filed a supplemental brief in propria persona that we have
considered. For the following reasons, we affirm, though we correct the
minute entry from the sentencing hearing to reflect five historical felony
convictions instead of six.
FACTS AND PROCEDURAL HISTORY1
¶2 Officer Montoya was on patrol in a marked police vehicle
when she noticed a Nissan with inoperable brake lights. She activated her
squad car’s lights and siren, but the Nissan did not stop. A second police
unit pulled alongside the vehicle and motioned for the driver to pull over,
which she did. Bradley was in the passenger seat.
¶3 Officer Montoya noticed the ignition had been “punched”
and had a piece of metal protruding from it, which often indicates a stolen
vehicle.2 The officers asked the Nissan’s occupants to step out of the
vehicle. As Officer Montoya went to remove a utility knife that Bradley
had on his person, Bradley reached for the knife and pulled away. As a
result, Officer Montoya handcuffed him.
1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” State v. Nihiser, 191
Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).
2 The officers later determined the car was not stolen.
2
STATE v. BRADLEY
Decision of the Court
¶4 Officer Montoya obtained Bradley’s consent to search him.
She found “close to a thousand dollars” in cash in his pocket. When asked
about the cash, Bradley stated, “I just got paid.” As Officer Montoya was
checking Bradley’s information, he stated, “The cash is legit. . . . I got my
check in my wallet. You can look.” Officer Montoya removed Bradley’s
wallet from his pocket and saw a small baggie containing a substance she
suspected to be methamphetamine. Officer Montoya said, “I found your
meth,” whereupon Bradley responded that he found the baggie on the
floor of the car. When Officer Montoya related Bradley’s explanation to
the driver, she began yelling at him, and Bradley then said that he found
the baggie on the ground.
¶5 Bradley was charged with one count of possession or use of
dangerous drugs (methamphetamine), a class four felony, in violation of
Arizona Revised Statutes (“A.R.S.”) section 13-3407(A)(1). He filed a
motion to suppress, arguing the officer lacked justification for reaching
into his pocket. After an evidentiary hearing, the trial court denied the
suppression motion.
¶6 Bradley failed to appear for his first trial, which ended in a
mistrial. Approximately a month later, a second jury trial commenced—
again in Bradley’s absence. The jury returned a guilty verdict.
¶7 Bradley was subsequently apprehended on the bench
warrant. The court held a consolidated status conference and sentencing
hearing. Bradley made an oral motion to waive counsel and represent
himself. The court recessed for just under an hour to give Bradley time to
review a waiver of counsel form and then questioned Bradley about his
request. Based on Bradley’s responses, the court found that his waiver of
counsel was not voluntary and denied it. Sentencing proceeded, with
Bradley represented by counsel. The court sentenced Bradley to a
mitigated term of seven years’ imprisonment, with 236 days of
presentence incarceration credit. Bradley timely appealed.
DISCUSSION
¶8 We have read and considered the briefs submitted by
appellate counsel and Bradley and have reviewed the entire record. See
Leon, 104 Ariz. at 299–300, 451 P.2d at 880–81. We find no reversible error.
All of the proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure, and the sentence imposed was within the
statutory range. The jury was properly impaneled and instructed. The
3
STATE v. BRADLEY
Decision of the Court
jury instructions were consistent with the offense charged. The record
reflects no irregularity in the deliberation process.
I. Substantial Evidence
¶9 The record includes substantial evidence to support the
jury’s verdict. See State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981)
(In reviewing for sufficiency of evidence, “[t]he test to be applied is
whether there is substantial evidence to support a guilty verdict.”).
“Substantial evidence is proof that reasonable persons could accept as
sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.” State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075
(1996). Substantial evidence “may be either circumstantial or direct.”
State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003).
¶10 The State was required to prove beyond a reasonable doubt
that Bradley: (1) knowingly possessed or used a dangerous drug, and (2)
the substance was in fact a dangerous drug. See A.R.S. §§ 13-3401(6),
–3407(A)(1). Officer Montoya testified she retrieved the baggie at issue
from Bradley’s person, and the parties stipulated that the substance in the
baggie tested positive for methamphetamine, a dangerous drug. The
court read this stipulation to the jury.
II. Trial In Absentia
¶11 Under the Sixth and Fourteenth Amendments to the United
States Constitution and Article 2, Section 24, of the Arizona Constitution, a
criminal defendant has a right to be present at trial. State v. Levato, 186
Ariz. 441, 443, 924 P.2d 445, 447 (1996); see also Ariz. R. Crim. P. 19.2 (“The
defendant has the right to be present at every stage of the trial . . . .”). A
defendant, however, may voluntarily relinquish that right. State v. Garcia–
Contreras, 191 Ariz. 144, 147, ¶ 9, 953 P.2d 536, 539 (1998). A valid waiver
depends on the voluntariness of the absence. Id. “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 proceedings would take place in his absence if he failed
to appear.” State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354
(App. 1996).
¶12 Throughout the trial court proceedings, Bradley received
warnings, both orally and in writing, that a failure to appear could result
in the trial proceeding in his absence. For example, in a minute entry from
a September 2012 pretrial conference, the court stated:
4
STATE v. BRADLEY
Decision of the Court
A defendant’s failure to appear at the comprehensive
pretrial conference, the final trial management conference or
the trial may result in a bench warrant being issued for his or
her arrest and the CPTC and trial being conducted in the
defendant’s absence.
At a hearing in October 2012, the court set a final trial management
conference and trial dates and told Bradley: “[M]ake sure that you appear
for those dates, otherwise a warrant will be issued for your arrest, and
trial could go forward in your absence.” At the suppression hearing in
January 2013, the court warned Bradley:
[U]nless the case is dismissed you’re expected back here
March 11th and for trial on March 18th. If you fail to appear
either day a warrant could be issued for your arrest. And if
you fail to appear for the trial it could proceed in your
absence. . . . Do you understand that[?]
[THE DEFENDANT]: Yes, sir I do.
¶13 Bradley failed to appear for a March 2013 pretrial hearing,
where the following exchange took place:
THE COURT: And do you have any knowledge of why
[Bradley] failed to appear[?]
[DEFENSE COUNSEL]: Judge, I saw him in the hallway
earlier, we had a discussion with regard to the report from
pre-trial services. And I had to go to two separate courts, I
told him I would be back, and he’s no longer in the hallway.
THE COURT: Okay. . . . I’m going to revoke the current
release conditions but I’m going to affirm all the trial dates,
the current dates [Bradley] has. He received notice of those
when he was here March 11th.
¶14 Bradley also failed to attend an April 8, 2013 hearing, despite
being present when it was set. Defense counsel stated that Bradley had
been in contact with his office and counsel requested a continuance. The
following exchange took place:
THE COURT: . . . The real question is whether the State
would intend to try him in his absence.
5
STATE v. BRADLEY
Decision of the Court
[PROSECUTOR]: And the State would, Your Honor. Not at
the last scheduled [trial management conference], but the
one before that, you gave him an advisement on the record
that went pretty in depth about what could happen if he
failed to show up at the trial management conference. He
was aware of that. Despite that fact, he hasn’t shown up.
The State is prepared to try him in absentia.
THE COURT: Okay. But is anybody concerned about notice
issues if I were to . . . continue this. I just want to be clear on
the record.
[PROSECUTOR]: And during that advisement, Your Honor,
you made him aware that the trial date -- you made him
aware of the trial date that was set and you told him . . . your
defense attorney might have to continue that trial date and
it’s your responsibility to keep in touch and make sure
you’re updated of wherever the case is continued to and find
out the new trial date. So that was told to the defendant on
the record.
¶15 Under these circumstances, the trial court did not err by
conducting the trial in absentia. See Muniz-Caudillo, 185 Ariz. at 262, 914
P.2d at 1354 (affirming voluntary absence when defendant received a
warning and “was released on his own recognizance, did not appear at
the pretrial conference at which the original trial date was set, and failed
to keep in contact with trial counsel to ascertain his trial date”).
III. Sentencing
¶16 Bradley argues his sentence is illegal because certain prior
convictions were improperly classified as prior historical felonies. An
illegal sentence generally constitutes fundamental error. State v. Soria, 217
Ariz. 101, 102, ¶ 4, 170 P.3d 710, 711 (App. 2007).
¶17 Bradley stipulated to the existence of five prior felony
convictions. Defense counsel clarified that, “although my client is
stipulating to the priors, we’re not stipulating as to whether they’re
considered historical priors for sentencing purposes.” The court
determined that Bradley had five historical priors. A discrepancy exists,
however, between the oral finding of five priors and the minute entry,
which reflects six priors. “When a discrepancy between the trial court’s
oral pronouncement of a sentence and the written minute entry can be
clearly resolved by looking at the record, the [o]ral pronouncement in
6
STATE v. BRADLEY
Decision of the Court
open court controls over the minute entry.” State v. Ovante, 231 Ariz. 180,
188, ¶ 38, 291 P.3d 974, 982 (2013). When the discrepancy cannot be
resolved by reference to the record, a remand for clarification of sentence
is appropriate. State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App.
1992).
¶18 Here, reference to the record supports the oral
pronouncement of sentence. Because the oral pronouncement controls,
Bradley should have been sentenced based on five historical priors.
Additionally, the sixth prior listed in the minute entry is ineligible as a
historical prior under A.R.S. § 13-703(L), which states, “Convictions for
two or more offenses committed on the same occasion shall be counted as
only one conviction . . . .” The sixth prior felony listed in the minute entry
was committed on the same date and under the same cause number as the
first prior felony. Thus, we vacate that portion of the sentencing minute
entry listing “Theft, a class 3 Non Dangerous felony committed on
8/22/1987 and convicted on 1/21/1988 in Maricopa County Superior
Court cause number CR1987-008028” as a historical prior felony. See State
v. Veloz, 236 Ariz. 532, 538, ¶ 21, 342 P.3d 1272, 1278 (App. 2015) (appellate
court may order the minute entry corrected if the record clearly identifies
the intended sentence).
¶19 Even without the sixth felony, Bradley was correctly
sentenced under A.R.S. § 13-703(J). Seven years’ imprisonment is a
mitigated term for a class four felony under a category three repetitive
offense. Id. As Bradley’s appellate counsel acknowledges, “The trial court
reached a legal and correct sentence despite the technical errors or
misspeaking about the number of priors which happened here, such that
counsel has not raised this as an issue on appeal.”
¶20 Bradley argues two of his prior felonies are not historical
priors because they occurred in the 1980s and have “expired.” Under
A.R.S. § 13-105(22), many historical prior felony convictions include a time
limit; certain felonies older than five or ten years are not eligible for use as
historical prior felonies for sentencing purposes. See, e.g., A.R.S. §
13–105(22)(b) (ten year time limit), –105(22)(c) (five year time limit).
However, A.R.S. § 13-105(22)(d) defines a historical prior as “[a]ny felony
conviction that is a third or more prior felony conviction.” Our
jurisprudence has interpreted this subsection to apply chronologically:
[O]nce a person has been convicted of three felony offenses,
the third in time can be used to enhance a later sentence,
regardless of the passage of time. We conclude that
7
STATE v. BRADLEY
Decision of the Court
applying subsection 13-604.U.1(d) [a former version of
13–105(22)(d)] only to felony convictions that are
chronologically the third or more in time is consistent . . .
with the statute’s purpose . . . .
State v. Garcia, 189 Ariz. 510, 515, 943 P.2d 870, 875 (App. 1997). Thus, to
be classified as a historical prior felony under A.R.S. § 13-105(22)(d), a
court must count forward chronologically from the oldest prior conviction
to the newest. See State v. Decenzo, 199 Ariz. 355, 358, ¶ 9, 18 P.3d 149, 152
(App. 2001).
¶21 Bradley’s third, fourth, and fifth chronological felonies were
all class six felonies committed in 2003, 2004, and 2005, respectively. They
were not eligible as prior historical felonies under A.R.S. § 13–105(22)(c),
which allows class six prior felonies “committed within the five years
immediately preceding the date of the present offense” to be used as prior
felonies for sentencing. But these felonies are allowable as third or more
prior felony convictions under A.R.S. § 13-105(22)(d).
¶22 Bradley challenges his two prior felonies for drug
paraphernalia, stating, “Because the [two drug offenses] arise from a drug
court matter, are beyond statutory time frames, are concurrent in Nature,
and because said are not legally considered a substance abuse offense,
said are improper as to their use as a sentence enhancement factor.”
Bradley also questions “[w]hether Prop. 200 drug convictions may be used
as prior felonies, considering they cannot result in a prison sentence of
more than one year.”
¶23 As discussed supra, the two drug-related convictions were
properly considered prior historical felonies under A.R.S. § 13-105(22)(d).
The fact that these priors are drug offenses does not prohibit their use as
prior historical felonies. A.R.S. § 13-901.01(H)(1), (4) states that a person is
ineligible for probation on a drug charge if the court finds he was
“convicted three times of personal possession of a controlled substance or
drug paraphernalia” or was convicted of personal possession of
methamphetamine. Proposition 200 allows certain drug offenses
committed on the same occasion to be treated as one offense for
sentencing purposes. See State v. Reinhardt, 208 Ariz. 271, 275, ¶ 15, 92
P.3d 901, 905 (App. 2004) (counting three drug convictions for offenses
committed on the same occasion as one “time” of conviction for
Proposition 200 sentencing purposes). Though committed within the
same year, the prior drug offenses were committed on different days and
have different cause numbers. See State v. Flores, 236 Ariz. 33, 35–36, ¶¶
8
STATE v. BRADLEY
Decision of the Court
6–9, 335 P.3d 555, 557–58 (App. 2014) (offenses committed days apart on
different victims were not committed on the same occasion for sentencing
purposes).
IV. Testimony
¶24 Bradley contends Officer Montoya offered perjured
testimony, which the prosecutor “presented and vouched, condoned and
supported.” Bradley offers an alternative version of the facts presented at
trial. However, resolving disputed factual issues is the province of the
trial court; appellate courts do not reweigh evidence on appeal. State v.
Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Additionally, mere
inconsistencies between an officer’s police report and testimony do not
establish perjury. Cf. State v. Brazil, 18 Ariz. App. 545, 546–47, 504 P.2d 76,
77–78 (1972) (inconsistencies in officer’s testimony did not amount to
perjury).
V. Counsel Issues
¶25 The right to waive counsel and proceed in propria persona is a
constitutionally guaranteed right. State v. Cook, 170 Ariz. 40, 48, 821 P.2d
731, 739 (1991). Similarly, the right to be effectively assisted by counsel is
constitutionally protected. See State v. Schaaf, 169 Ariz. 323, 330, 819 P.2d
909, 916 (1991). “The trial court strikes a balance between these two
seemingly conflicting rights by assuring itself that a defendant proceeds in
propria persona knowingly, intelligently, and voluntarily.” State v. Russell,
175 Ariz. 529, 532, 858 P.2d 674, 677 (App. 1993).
¶26 The record here supports the trial court’s finding that
Bradley did not voluntarily waive counsel. During an extensive colloquy,
the following exchange took place:
THE COURT: Do you have any questions about anything
that relate[s] to representing yourself? . . .
THE DEFENDANT: No, sir.
THE COURT: You still want to give up your right to counsel
and represent yourself?
THE DEFENDANT: I don’t have a choice.
THE COURT: Did anyone force you to make that decision
then, if you don’t have a choice?
9
STATE v. BRADLEY
Decision of the Court
THE DEFENDANT: Incompetent ineffective assistance of
counsel.
THE COURT: I see. Anyone threaten you?
THE DEFENDANT: Well, if not doing nothing, subjecting
me to a penalty that’s outrageous under the circumstances of
this case, I would say that’s obvious.
THE COURT: Okay. Are you doing this voluntarily and of
your own free will?
THE DEFENDANT: I have no choice.
THE COURT: Okay. If you don’t have a choice then you’re
not doing it voluntarily and I can’t grant your motion.
THE DEFENDANT: I have no choice but to do it this way.
You denied my motion, my substantive motions because I’m
not representing myself.
....
THE COURT: . . . Are you doing this -- are you requesting
this waiver voluntarily and of your own free will?
THE DEFENDANT: I’m left with no choice.
THE COURT: Okay. Then I can’t grant your motion, sir. So
your motion to represent yourself is denied.
¶27 Under Rule 6.1(c), the court must find that a defendant
“knowingly, intelligently and voluntarily desires” to forego counsel.
Bradley would not confirm that his waiver was voluntary and, in fact,
insisted the contrary was true. Under these circumstances, the court did
not err in denying his request to waive counsel.
¶28 We decline to address Bradley’s contentions that defense
counsel failed to: (1) “put the State’s case to proper adversarial testing;”
(2) give him a copy of the trial transcript; or (3) communicate sufficiently
regarding plea offers. Ineffective assistance of counsel claims will not be
considered on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d
525, 527 (2002).
10
STATE v. BRADLEY
Decision of the Court
VI. Search
¶29 Bradley challenges the search that led to seizure of the
methamphetamine. He argues the officer misrepresented material facts,
and he denies consenting to the search. We review the denial of a motion
to suppress for an abuse of discretion. See State v. Ahumada, 225 Ariz. 544,
546, ¶ 5, 241 P.3d 908, 910 (App. 2010).
¶30 At the suppression hearing, Bradley testified and offered his
version of the facts, including his claim he did not give consent for officers
to search his wallet. Officer Montoya, though, testified to the contrary.
Faced with conflicting evidence, the trial court expressly found Officer
Montoya’s testimony credible and determined Bradley had consented to
the search. As noted supra, we do not reweigh the evidence on appeal to
determine whether we would reach the same conclusion as the trial court.
Guerra, 161 Ariz. at 293, 778 P.2d at 1189.
VII. Stipulation
¶31 The parties stipulated at trial that a Phoenix Police
Department criminalist tested the substance taken from Bradley and that
the criminalist would testify it was a usable quantity of methamphetamine
— a dangerous drug. Bradley questions whether he must “be present and
make a knowing, intelligent and voluntary waiver before” making the
stipulation because it involved an element of the offense and “[w]hether
the person who tested the methamphetamine was qualified to do so.”
However, “[p]arties routinely stipulate to easily proven facts, and courts
encourage such stipulations to narrow issues and to promote judicial
economy.” State v. Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247 (2009).
A colloquy by the court is not required before a defendant stipulates to
elements of the offense. Id. at 128–29, ¶ 14, 220 P.3d at 247–48.
VIII. Transcripts
¶32 Bradley argues the trial transcript “is devoid of whether or
not Jury’s questions were answered nor how such answer, if any, was
worded.” The record reflects submission of three juror questions. Two
questions were asked by the court after bench conferences with counsel.
The transcript includes these questions and the witness’ answers.
IX. Other Arguments
¶33 Defense counsel’s brief lists, without elaboration, certain
additional issues that “Appellant has requested counsel raise.” We have
11
STATE v. BRADLEY
Decision of the Court
reviewed each issue and found no reversible error. Bradley asserts
additional errors, but his claims lack clarity, support, or context, such as
his assertion that “for a trial court to threaten continued confinement
within a county jail where such confinement goes way beyond the
statutory period allowed by law, with promise of immediate release
therefrom in order to obtain a judgment by plea bargain, the use of a
liberty right/interest renders such conviction constitutionally infirm.”
Although we have considered issues Bradley identifies with some
measure of clarity, it is not the role of this court to develop arguments that
were not clearly made. See Ace Auto. Products, Inc. v. Van Duyne, 156 Ariz.
140, 143, 750 P.2d 898, 901 (App. 1987).
CONCLUSION
¶34 We affirm Bradley’s conviction and sentence as modified.
Counsel’s obligations pertaining to Bradley’s representation in this appeal
have ended. Counsel need do nothing more than inform Bradley of the
status of the appeal and his future options, unless counsel’s review reveals
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154,
156–57 (1984). On the court’s own motion, Bradley shall have thirty days
from the date of this decision to proceed, if he desires, with an in propria
persona motion for reconsideration or petition for review.
:ama
12