Opinion
No. 1 CA-CR 14-0074
12-02-2014
STATE OF ARIZONA, Appellee, v. ALBERT KARL HEHZMANN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Thomas K. Baird Counsel for Appellant Albert Karl Heitzmann, San Luis Appellant
NOTICE: NOT FOR PUBLICATION.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. Appeal from the Superior Court in Maricopa County
No. CR2012-134114-001
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
Albert Karl Heitzmann, San Luis
Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Donn Kessler joined. CATTANI, Judge:
¶1 Albert Karl Heitzmann appeals his conviction of threatening or intimidating, a class 1 misdemeanor, and the resulting imposition of probation. Heitzmann's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Heitzmann filed a pro se supplemental brief raising three issues, which we address below. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). After reviewing the record, we affirm Heitzmann's conviction and the imposition of probation.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2006 or 2007, the victim, a deputy county attorney, called Heitzmann as a witness in a capital case. As a result of Heitzmann's testimony in that case, the State later charged him with perjury and related crimes. The victim prosecuted the perjury case against Heitzmann, who was convicted and sentenced to imprisonment. Heitzmann was released from prison in 2010.
¶3 In June 2012, Heitzmann delivered papers to a defense attorney including a cover letter signed by Heitzmann, with a bullet point reading "My plan to assassinate [the victim]." The defense attorney then contacted the victim and the county attorney's office to inform them of the threat. In an interview with investigators, Heitzmann admitted having written the letter, but stated that "killing [the victim] would be too good for her" and described his plans to ruin her reputation and destroy her career. At trial, Heitzmann again stated that he "ha[d] no plan to physically harm [the victim]," but rather that he was planning to file a bar complaint against her, sue her for malicious prosecution, and write negative things about her, although he admittedly had not yet done so. During the course of the investigation, investigators discovered that, although he was a convicted felon, Heitzmann possessed a semi-automatic pistol.
At the time, this defense attorney represented one of the men convicted in the 2008 capital case.
¶4 The State charged Heitzmann with misconduct involving weapons and threatening or intimidating. After a three-day trial, a jury found Heitzmann guilty of misconduct involving weapons, but was unable to reach a verdict on threatening or intimidating. The superior court reset the threatening or intimidating count for bench trial, and after a one-day trial found Heitzmann guilty as charged. The court suspended sentence and imposed a three-year term of probation.
Heitzmann later appealed the misconduct involving weapons conviction and the resulting four-year sentence, and a different panel of this court affirmed. See State v. Heitzmann, 1 CA-CR 13-0318, 2014 WL 2768783 (Ariz. App. June 17, 2014).
¶5 Heitzmann timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and -4033.
Absent material revisions after the relevant date, we cite a statute's current version.
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DISCUSSION
¶6 We have read and considered counsel's brief and Heitzmann's supplemental brief and have reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none.
¶7 In his supplemental brief, Heitzmann argues his counsel was ineffective. A claim of ineffective assistance of counsel, however, may only be raised in a Rule 32 proceeding for post-conviction relief, not on direct appeal. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We therefore do not address the merits of this argument.
¶8 Heitzmann also claims the superior court improperly suppressed evidence. The record does not show any motion to suppress or any court order suppressing or precluding evidence. The examples cited by Heitzmann in his supplemental brief are portions of his testimony in which he wanted to volunteer additional information beyond the scope of the question asked. The State need not adapt its questions on cross-examination to Heitzmann's preferences, and to the extent this argument reaches defense counsel's direct examination, it is a claim of ineffective assistance of counsel, which may not be considered on direct appeal. See Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527.
¶9 Finally, Heitzmann claims the evidence presented was insufficient to support the threatening or intimidating conviction. He argues that there was no threat because he never contacted the victim directly. But direct contact with the victim is not an element of the offense. See In re Ryan A., 202 Ariz. 19, 22-23, ¶¶ 11-14, 39 P.3d 543, 546-47 (App. 2002) (holding that a "threat" may be established without evidence of fear on the part of the victim; test is whether a reasonable person would foresee that the statement could be interpreted as a threat). Here, the threatening words were directed to the victim by name—"My plan to assassinate [the victim]"—and Heitzmann delivered the letter to a third-party professionally related to the victim. Thus, a reasonable person would foresee the statement to be threatening.
¶10 Heitzmann also argues the conviction was improper because he never intended to physically harm the victim, only to harm her with a civil lawsuit, bar complaint, and in a book he planned to write. Although the threat must be a "true threat"—that is, "under the circumstances, a reasonable person would foresee that his words would be taken as a serious expression of an intent to inflict bodily harm"—intent to actually carry out the threat is not an element of the offense. In re Kyle M., 200 Ariz. 447, 452, ¶ 23, 27 P.3d 804, 809 (App. 2001). Here, Heitzmann's threat to "assassinate" the victim, particularly given the context of his prior involvement in a capital case and his admitted loathing for the victim, meets the criteria for a "true threat" threatening physical harm.
¶11 Heitzmann was present and represented by counsel at all stages of the proceedings against him. The record reflects that the superior court afforded Heitzmann all his rights under the Arizona and United States Constitutions and our statutes, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The court conducted appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the guilty verdict. The period of probation imposed falls within the range prescribed by law.
¶12 After the filing of this decision, defense counsel's obligations pertaining to Heitzmann's representation in this appeal will end after informing Heitzmann of the outcome of this appeal and his future options. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Heitzmann shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
CONCLUSION
¶13 Heitzmann's conviction and the term of probation imposed are affirmed.