State v. Heydorn ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
STEVEN WAYNE HEYDORN, Appellant.
No. 1 CA-CR 21-0223
FILED 5-9-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR201901319
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Kenneth S. Countryman, PC, Tempe
By Kenneth S. Countryman
Counsel for Appellant
Steven Wayne Heydorn, Safford
Appellant
STATE v. HEYDORN
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.
P A T O N, Judge:
¶1 Steven Wayne Heydorn appeals his conviction for aggravated
harassment pursuant to Anders v. California, 386 U.S. 738 (1967) and State v.
Leon, 104 Ariz. 297 (1969). Heydorn’s counsel filed a revised opening brief
per this Court’s order, stating that he searched the record and found no
arguable, non-frivolous question of law. See Anders, 386 U.S. at 744.
Heydorn filed a pro per supplemental opening brief, alleging (1) error in
various proceedings prior to this conviction, (2) error in jury selection, and
(3) ineffective assistance of trial counsel. He subsequently filed a letter with
this court alleging ineffective assistance of appellate counsel.
¶2 We review the record in the light most favorable to sustaining
the conviction and resolve all reasonable inferences against Heydorn. See
State v. Guerra, 161 Ariz. 289, 293 (1989). After reviewing the record, we
find no reversible error and reject the arguments Heydorn raised through
his supplemental opening brief. We affirm.
FACTS AND PROCEDURAL HISTORY
¶3 In May 2019, Heydorn’s neighbor obtained an injunction
against Heydorn, which prevented Heydorn from contacting him. The
injunction was effective until May 2020.
¶4 In September 2019, while on his front porch, the neighbor
observed Heydorn making sexual gestures and comments towards him.
The neighbor left his front porch and called the police.
¶5 As he waited for the police to arrive, the neighbor worked
near his front yard with a weed eater. To avoid scattering debris, the
neighbor testified that he kept his weed eater on a low speed and pointed
it away from the street. Heydorn’s mother and roommate testified,
however, that the neighbor’s weed eater propelled gravel towards
Heydorn’s house. Heydorn’s mother also testified that gravel came close
to hitting her mother’s vintage Cadillac.
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STATE v. HEYDORN
Decision of the Court
¶6 In response, Heydorn retrieved his own weed eater and used
it to direct gravel across the street towards the neighbor. The neighbor
testified that Heydorn continuously propelled gravel towards his house for
approximately fifteen minutes.
¶7 A jury convicted Heydorn of aggravated harassment. The
State proved seven prior felony convictions, and the court sentenced
Heydorn to an aggravated term of six years in prison with credit for 121
days served.
¶8 Heydorn 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 13-4033(A)(1).
DISCUSSION
¶9 We have reviewed and considered the briefs and searched the
entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999) (providing guidelines for briefs when counsel has determined
no arguable issues to appeal). We find none. The record contains sufficient
evidence from which the jury could determine, beyond a reasonable doubt,
that Heydorn was guilty of aggravated harassment, including that
Heydorn made sexual gestures and comments towards the neighbor before
using a weed eater to propel gravel towards the neighbor’s house.
¶10 The record also reflects that (1) all proceedings complied with
the Arizona Rules of Criminal Procedure, (2) Heydorn was represented by
counsel at all stages of the proceeding, and (3) Heydorn was present at all
critical stages. State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel);
State v. Bohn, 116 Ariz. 500, 503 (1997) (right to be present at critical stages).
¶11 In his supplemental brief, Heydorn contends that the justice
court‘s improper grant of the injunction was error which led to this
conviction. This court, however, only reviews the matters that appear in
the record before it. See State v. Lindsay, 5 Ariz. App. 516, 518 (1967).
Because the underlying facts of previous proceedings are not presently
before this court, we will not consider them.
¶12 Heydorn next argues that the superior court erred in its jury
selection procedure because Heydorn expected the process to take much
longer than it did. The record, however, demonstrates the jury was
properly comprised of ten jurors, and shows no evidence of juror bias or
misconduct. See A.R.S. § 21-102(B). Accordingly, we find no error in jury
selection here.
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STATE v. HEYDORN
Decision of the Court
¶13 Finally, Heydorn makes various claims regarding the
unsatisfactory performance of his trial counsel. We construe these
arguments as a claim for ineffective assistance of counsel, which must be
brought through Arizona Rule of Criminal Procedure “Rule” 32.1(a)
proceedings. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). We therefore
decline to address Heydorn’s arguments for ineffective assistance of trial
counsel in this proceeding.
¶14 In the letter he sent to this court after briefing was complete,
Heydorn raised concerns about his appellate counsel. Although his counsel
initially erred by submitting an opening brief for a different case, we find
that counsel’s revised brief is Anders-compliant. To the extent that Heydorn
is seeking to bring an ineffective assistance of appellate counsel claim, he
must do so in a Rule 32 proceeding. See Spreitz, 202 Ariz. at 3, ¶ 9. To the
extent Heydorn’s letter seeks further relief, we deny it.
CONCLUSION
¶15 We affirm Heydorn’s conviction and sentence. See Leon, 104
Ariz. at 300–01. Upon the filing of this decision, defense counsel is directed
to inform Heydorn of the status of his appeal and his future options.
Defense counsel has no further obligations, 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. 583, 584–85 (1984).
Heydorn will have thirty days from the date of this decision to proceed, if
he desires, with a pro se motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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