State v. Dorsey ( 2014 )


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  •                                NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZ. R. SUP. CT. 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.
    WILLIAM EUGENE DORSEY, Appellant.
    No. 1 CA-CR 13-0862
    FILED 11-4-2014
    Appeal from the Superior Court in Maricopa County
    No. CR2012-143670-001
    The Honorable Richard L. Nothwehr, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Jeffrey L. Force
    Counsel for Appellant
    STATE v. DORSEY
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Randall M. Howe delivered the decision of the Court, in
    which Judge Michael J. Brown and Judge Jon W. Thompson joined.
    H O W E, Judge:
    ¶1            This appeal is filed in accordance with Anders v. California, 
    386 U.S. 738
     (1967), and State v. Leon, 
    104 Ariz. 297
    , 
    451 P.2d 878
     (1969). Defense
    counsel for William Eugene Dorsey has searched the record, found no
    arguable question of law, and requests this Court to review the record for
    fundamental error. State v. Richardson, 
    175 Ariz. 336
    , 339, 
    857 P.2d 388
    , 391
    (App. 1993). Dorsey was given the opportunity to file a supplemental brief
    in propria persona, and has done so. After reviewing the record, we affirm
    Dorsey’s conviction and sentences for pandering.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2           On August 16, 2012, Dorsey sent a text message to a police
    officer who was working as an undercover prostitute to inquire about her
    online advertisement. Dorsey’s message to the officer stated, “Join my
    team,” and included a photo of Dorsey holding up money.
    ¶3            Dorsey then met the officer at a hotel room, where Dorsey
    invited the officer to join his “team” and discussed what acts she would
    perform as a prostitute. Dorsey also discussed traveling out of state, doing
    “doubles” with another prostitute, and hoped that she would earn him $200
    an hour.
    ¶4           Dorsey was charged with pandering, a class five felony. The
    State alleged several historical non-dangerous felony convictions and
    aggravating circumstances. At a pretrial hearing, Dorsey moved to dismiss
    counsel, arguing that his attorney “doesn’t know my case” and
    1      This Court views the evidence in the light most favorable to
    sustaining the convictions and resolves all reasonable inferences against the
    defendant. State v. Karr, 
    221 Ariz. 319
    , 320 ¶ 2, 
    212 P.3d 11
    , 12 (App. 2008).
    This Court also resolves any conflict in the evidence in favor of sustaining
    the verdicts. State v. Guerra, 
    161 Ariz. 289
    , 293, 
    778 P.2d 1185
    , 1189 (1989).
    2
    STATE v. DORSEY
    Decision of the Court
    “overlooked” evidence in discovery. The superior court denied Dorsey’s
    request to dismiss counsel.
    ¶5           Before the end of trial, Dorsey moved for a judgment of
    acquittal pursuant to Arizona Rule of Criminal Procedure 20, which the
    superior court denied. At the close of the evidence, the superior court
    properly instructed the jury on the elements of the offense. The jury
    convicted Dorsey as charged.
    ¶6           The superior court conducted the sentencing hearing in
    compliance with Dorsey’s constitutional rights and Arizona Criminal
    Procedure Rule 26. Finding no mitigating circumstances, the superior court
    sentenced Dorsey to five years imprisonment and gave him credit for 456
    days of presentence incarceration.
    DISCUSSION
    ¶7             Dorsey raises several arguments in his supplemental brief.
    We review the entire record for reversible error. State v. Thompson, 
    229 Ariz. 43
    , 45 ¶ 3, 
    270 P.3d 870
    , 872 (App. 2012).
    ¶8            Dorsey first argues that the superior court erred by denying
    his motion for a judgment of acquittal. We reject his claim. A motion for a
    judgment of acquittal may be granted only when “there is no substantial
    evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). We review de
    novo whether sufficient evidence supported the conviction. State v. West,
    
    226 Ariz. 559
     ¶ 15, 
    250 P.3d 1188
    , 1191 (2011). “[T]he relevant question is
    whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt.” Id. ¶ 16 (quoting State v.
    Mathers, 
    165 Ariz. 64
    , 66, 
    796 P.2d 866
    , 868 (1990)). “Both direct and
    circumstantial evidence should be considered in determining whether
    substantial evidence supports a conviction.” 
    Id.
    ¶9            Here, the evidence presented at trial showed that Dorsey
    contacted an undercover prostitute, asking her to “join his team” in hopes
    of earning him $200 an hour for sex acts. This was sufficient evidence from
    which a rational juror could find Dorsey guilty beyond a reasonable doubt.
    Accordingly, the superior court therefore did not err in denying Dorsey’s
    motion for a judgment of acquittal.
    ¶10         Dorsey next alleges error in sentencing. He argues that the
    “mitigating circumstances outweighed [the] State’s aggravating
    circumstances, which should have qualified defendant to receive a sentence
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    STATE v. DORSEY
    Decision of the Court
    below presumptive,” and that the “[j]udge did not state on the record his
    reason for sentencing defendant to [the] presumptive term.” A sentence
    within statutory limits will not be disturbed unless the trial court abused its
    discretion by acting arbitrarily or capriciously. State v. Cazares, 
    205 Ariz. 425
    , 427 ¶ 6, 
    72 P.3d 355
    , 357 (App. 2003).
    ¶11           In determining what sentence to impose, the superior court
    shall consider the “amount of aggravating circumstances and whether the
    amount of mitigating circumstances is sufficiently substantial to justify the
    lesser term.” A.R.S. § 13-707(F). When imposing a presumptive sentence,
    the superior court is not required to articulate factual findings and reasons
    for doing so. State v. Winans, 
    124 Ariz. 502
    , 504–05, 
    605 P.2d 904
    , 906–07
    (App. 1979).
    ¶12           We find no error in Dorsey’s sentence. At sentencing, the
    superior court found that “there are no mitigating circumstances in this
    matter” and sentenced Dorsey to a presumptive, five-year term with 456
    days of incarceration credit. Because the superior court sentenced Dorsey
    to a presumptive term, it was not required to articulate its reasons for doing
    so. Moreover, because the superior court found neither mitigating nor
    aggravating circumstances, Dorsey’s argument regarding the weight of the
    mitigating circumstances is irrelevant. Finding no error, we affirm Dorsey’s
    sentence.
    ¶13            Dorsey also argues that the “[j]udge abused his discretion by
    not letting [Dorsey] dismiss counsel after oral argument [on] July 30, 2013.”
    We reject this claim. “A criminal defendant has a Sixth Amendment right
    to representation by competent counsel.” State v. Moody, 
    192 Ariz. 505
    , 507
    ¶ 11, 
    968 P.2d 578
    , 580 (1998). A defendant is not entitled, however, to a
    counsel of choice or even to a meaningful relationship with his or her
    counsel. 
    Id.
     The burden is on the defendant to prove a genuine
    irreconcilable difference with trial counsel or that there was a total
    breakdown in communication. State v. Torres, 
    208 Ariz. 340
    , 343 ¶ 8, 
    93 P.3d 1056
    , 1059 (2004). The evidence must show more than mere animosity
    causing loss of trust or confidence. See State v. Paris–Sheldon, 
    214 Ariz. 500
    ,
    505 ¶ 14, 
    154 P.3d 1046
    , 1051 (App. 2007) (loss of trust or confidence not
    sufficient to appoint new counsel). A defendant must establish that he had
    such a “severe and pervasive conflict with his attorney or . . . that he had
    such minimal contact with the attorney that meaningful communication
    was not possible.” 
    Id.
     at 505 ¶ 12, 
    154 P.3d at 1051
    .
    ¶14          Dorsey has failed to meet his burden. Dorsey merely
    submitted broad and unsupported allegations at a pre-trial hearing that his
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    STATE v. DORSEY
    Decision of the Court
    attorney “doesn’t know” his case and “overlooked” evidence in discovery.
    Without more, those allegations did not entitle Dorsey to a substitution of
    counsel. Accordingly, the superior court did not err in denying Dorsey’s
    request to dismiss counsel.
    ¶15           Dorsey also alleges prosecutorial misconduct, alleging that
    the State “prosecut[ed] the case without fully investigating evidence in the
    case, misstating Phoenix City Code, etc.” “In reviewing prosecutorial
    misconduct, we focus on whether it affected the proceedings in such a way
    as to deny the defendant a fair trial.” State v. Hughes, 
    193 Ariz. 72
    , 80 ¶ 32,
    
    969 P.2d 1184
    , 1192 (1998). Having reviewed the record, we find no
    evidence of prosecutorial misconduct, let alone evidence that Dorsey was
    denied a right to a fair trial.
    ¶16            Dorsey next argues that “[i]t was entrapment when [the
    undercover police] officer committed crime of[] advertising as an escort
    without license[] to arrest [Dorsey] who [had] inquired about [the] officer’s
    services as an escort.” To claim entrapment, however, Dorsey was required
    to admit the substantive elements of the crime charged. A.R.S. § 13–206(A).
    By refusing to admit the substantive elements of pandering at trial, Dorsey
    rendered the defense of entrapment unavailable. See State v. Nilsen, 
    134 Ariz. 431
    , 432, 
    657 P.2d 419
    , 420 (1983) (“Our cases have consistently held
    that to avail himself of the defense of entrapment, a defendant must admit
    all the elements of the offense.”). We therefore find no fundamental error.
    ¶17           We also summarily reject several of Dorsey’s claims that have
    no legal basis or are based on a misapprehension of the applicable law.
    Specifically, we find no support for his contention that he was “denied
    Equal Protection of [the] law when pursing the legal business of escorting,”
    or that the superior court lacked jurisdiction because “the evidence showed
    nothing but a possible Phoenix City ordinance code violation.”
    ¶18            We also reject his argument that a police officer “comitted
    [sic] false swearing when she testified to not being in possession of a phone
    used in [the undercover] operation,” the “[j]udge abused his discretion by
    denying [Dorsey’s] motion to preclude late disclosed phone examination
    report and associated phone data,” and that the officer gave “an
    independent recollection of events” over defense counsel’s objection.
    Dorsey does not provide any indication where in the record we can find the
    relevant testimony. See State v. Bolton, 
    182 Ariz. 290
    , 298, 
    896 P.2d 830
    , 838
    (1995) (insufficient argument on appeal waives claim). Finally, Dorsey
    raises several arguments related to the sufficiency of the evidence. Dorsey
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    STATE v. DORSEY
    Decision of the Court
    essentially asks us to reweigh the evidence against him; this we will not do.
    See State v. Haas, 
    138 Ariz. 413
    , 419, 
    675 P.2d 673
    , 679 (1983).
    ¶19             Dorsey also raises several claims that appear to assert that his
    trial counsel provided ineffective assistance, namely that counsel “was
    insufficient,” “should have [filed] a motion for [a] new trial [and mistrial],”
    “failed to [file] motions . . . to dismiss complaint or indictment,” “refused
    to give him the full disclosure that the state gave him of the case,” “failed
    to remand the case to the grand jury,” and failed to let him “sign [the] State’s
    second plea offer.” Claims of ineffective assistance of counsel cannot be
    raised on appeal and must be raised in a post-conviction proceeding
    pursuant to Arizona Criminal Procedure Rule 32; we therefore do not
    discuss these arguments further. See State v. Spreitz, 
    202 Ariz. 1
    , 3 ¶ 9, 
    39 P.3d 525
    , 527 (2002).
    ¶20           Counsel for Dorsey has advised this Court that after a diligent
    search of the entire record, he has found no arguable question of law. We
    have read and considered counsel’s brief, Dorsey’s supplemental brief, and
    fully reviewed the record for reversible error. See Leon, 
    104 Ariz. at 300
    , 
    451 P.2d at 881
    . We find none. All of the proceedings were conducted in
    compliance with the Arizona Rules of Criminal Procedure. So far as the
    record reveals, Dorsey was represented by counsel at all stages of the
    proceedings and the sentence imposed was within the statutory limits. We
    decline to order briefing and we affirm Dorsey’s convictions and sentences.
    ¶21            Upon the filing of this decision, defense counsel shall inform
    Dorsey of the status of his appeal and of 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. 582
    , 584-85, 
    684 P.2d 154
    , 156-57
    (1984). Dorsey shall have thirty days from the date of this decision to
    proceed, if he desires, with a pro per motion for reconsideration or petition
    for review. On the Court’s own motion, we extend the time for Dorsey to
    file a pro per motion for reconsideration to thirty days from the date of this
    decision.
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    STATE v. DORSEY
    Decision of the Court
    CONCLUSION
    ¶22         For the foregoing reasons, we affirm Dorsey’s conviction and
    sentence.
    7