Opinion
No. 2 CA-CR 2012-0463
03-24-2014
THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE PETERS, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Kessler Law Offices, Mesa By Eric W. Kessler and Hamilton Law Office, Mesa By Lynn T. Hamilton Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pinal County
No. S1100CR200900849
The Honorable Joseph R. Georgini, Judge
AFFIRMED AS MODIFIED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Kessler Law Offices, Mesa
By Eric W. Kessler
and Hamilton Law Office, Mesa
By Lynn T. Hamilton
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 After a jury trial, appellant Michael Peters was convicted of misconduct involving weapons (possession by a prohibited possessor), unlawful discharge of a firearm within the limits of a municipality, and resisting arrest. The trial court imposed consecutive prison terms on all counts. Peters now appeals from his convictions and sentences, claiming multiple errors. For the following reasons, we affirm his convictions, affirm his sentences as to misconduct involving weapons and resisting arrest, but modify his sentence as to discharging a firearm by making it concurrent with his other weapons charge.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the verdicts." State v. Chappell, 225 Ariz. 229, n.1, 236 P.3d 1176, 1180 n.1 (2010). On May 9, 2009, W.F. was shot at a home in Casa Grande and died. Investigating officers received information from witnesses that led them to suspect Peters was the perpetrator and he was soon located at a trailer park on S. Chui Chu Road.
¶3 When law enforcement officers arrived at the address, they took defensive positions around a trailer home and ordered Peters to come out. The trailer's other occupants exited, and upon doing so, informed the officers that Peters was in the trailer and a shotgun and shotgun shells were inside. At some point during the standoff, Peters fired a shot through the roof of the trailer. Officers eventually used tear gas to force him to come out. When he did so, he resisted being handcuffed and an officer used a Taser on him before he was subdued.
¶4 Peters was charged with five counts. The first two, first-degree murder and prohibited possession of a deadly weapon, arose from his role in the murder of W.F. Counts three through five — prohibited possession of a deadly weapon, unlawful discharge of a firearm within or into the limits of a municipality, and resisting arrest—were based on the events that took place at the trailer home. The jury was unable to reach a verdict as to counts one and two but found Peters guilty of counts three through five. The trial court sentenced him to aggravated, consecutive prison terms on each count, totaling 26.5 years. Peters filed a timely notice of appeal from his convictions and sentences. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Closing Argument
¶5 During closing argument, Peters's counsel essentially conceded Peter was guilty of the two weapons charges of which he was convicted. His attorney stated, "He shot the gun off through the roof," which meant "he is guilty" of misconduct involving weapons and "also guilty" of unlawful discharge of a weapon in city limits. Peters asserts these concessions were the equivalent of entering a guilty plea and therefore required the trial court to conduct "a colloquy . . . to learn what was going on and if the accused truly wanted to plead guilty at the eleventh hour." See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (requiring colloquy to establish defendant understood rights waived by pleading guilty). Because Peters did not present this argument to the trial court, we review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
¶6 Our supreme court has "explicitly rejected the 'tantamount to a guilty plea' standard" for determining when such a colloquy between the court and defendant is required. State v. Allen, 223 Ariz. 125, ¶ 15, 220 P.3d 245, 248 (2009), quoting State v. Avila, 127 Ariz. 21, 23, 617 P.2d 1137, 1139 (1980). The court has further noted that such a standard "allow[s] a defendant to essentially plead guilty, yet retain rights typically waived when entering a guilty plea." Id. ¶ 16.
¶7 Before a colloquy is required to determine whether a defendant truly wishes to waive his trial rights, the defendant must actually be waiving some rights. Peters did not waive any of his trial rights, and in particular did not waive the right to have the jury decide the ultimate question of guilt or innocence. See Boykin, 395 U.S. at 243 (noting certain constitutional rights waived by pleading defendant); Avila, 127 Ariz. at 24-25, 617 P.2d at 1140-41 (listing rights defendant must be informed of before submitting case on the record).
¶8 The jury was instructed that "[w]hat the lawyers said is not evidence," "[y]ou . . . as jurors . . . are the sole judges of what happened," and "the State must prove each element of the charge beyond a reasonable doubt." We presume jurors follow a court's instructions. State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). Therefore, Peters did not lose his right to have a jury determine his guilt or innocence through the statements of his counsel. Nor did he lose the right to cross-examine witnesses, to testify on his own behalf, to compel witnesses, or to a direct appeal. See Avila, 127 Ariz. at 24-25, 617 P.2d at 1140-41; see also State v. Rose, 231 Ariz. 500, ¶ 13, 297 P.3d 906, 911 (2013) (court must ensure pleading defendant understands he is waiving right to direct appeal).
¶9 Peters's claim rests on the assumption that defense counsel's statements resulted in a waiver of his trial rights. Because no such waiver of rights occurred, the trial court did not err in not conducting a Boykin colloquy.
To the extent Peters argues in his brief that he received ineffective assistance of counsel, we disregard such a claim. As Peters has acknowledged, that claim is not cognizable on direct appeal. State v. Sang Le, 221 Ariz. 580, ¶ 4, 212 P.3d 918, 918-19 (App. 2009).
Severance
¶10 Peters argues the trial court erred in denying his motion to sever the two charges associated with the murder from those associated with the standoff at the trailer home. We review a denial of a motion to sever for an abuse of discretion. State v. Prion, 203 Ariz. 157, ¶ 28, 52 P.3d 189, 194 (2002).
Given our analysis below, we need not decide whether Peters presented to the trial court, and thus preserved, all aspects of his current argument.
¶11 Joinder of separate offenses is appropriate if the offenses:
(1) Are of the same or similar character; orAriz. R. Crim. P. 13.3(a). The trial court appears to have allowed joinder of these offenses under either Rule 13.3(a)(1) or (2), noting that "the matters are of similar character" and "the conduct is connected." We will affirm the ruling of a trial court if it is correct for any reason. State v. Herrera, 232 Ariz. 536, ¶ 14, 307 P.3d 103, 110 (App. 2013).
(2) Are based on the same conduct or are otherwise connected together in their commission; or
(3) Are alleged to have been part of a common scheme or plan.
¶12 Peters argues the trial court's error in denying his motion was not harmless because the evidence related to the trailer home charges "would not have been admissible in the murder" case. See State v. Lee, 189 Ariz. 590, 598, 944 P.2d 1204, 1212 (1997) (error in denying severance harmless if "evidence would have been admissible at separate trials"). But this argument puts the proverbial cart before the horse: in order to dispute whether any error was harmless, Peters must first demonstrate the court erred. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010) ("Regardless of how an alleged error ultimately is characterized, . . . a defendant on appeal must first establish that some error occurred.").
¶13 Under Rule 13.3(a)(2), joinder is permissible if the respective counts involved "connected" conduct. When offenses are properly joined under this provision, and a defendant requests severance of the counts, the defendant bears "the burden of showing, at the time of his motion, that he would be prejudiced if the trial court refused to grant separate trials." State v. Via, 146 Ariz. 108, 115, 704 P.2d 238, 245 (1985).
¶14 Peters has failed to provide any meaningful argument on appeal that joinder was not permissible under Rule 13.3(a)(2). His brief presents a cursory statement that the events "were not connected," but this statement is in the context of his argument that joinder was not harmless, and furthermore does not contain any citations to the record or relevant authorities. He has therefore waived this argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (opening brief "shall contain the contentions of the appellant . . . and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); State v. King, 226 Ariz. 253, ¶ 11, 245 P.3d 938, 942 (App. 2011) (failing to develop argument usually results in waiver on appeal).
¶15 To the extent Peters maintains severance should have been granted as "necessary to promote a fair determination of [his] guilt or innocence," Ariz. R. Crim. P. 13.4(a), we find this argument without merit. Peters contends the evidence on the murder-related counts, including "gruesome photos, stories of drug deals gone bad, etc.," would be prejudicial to the trailer home charges. But our supreme court has held that the "rub-off" doctrine, applicable in considering severance between codefendants, does not apply to severance of offenses. State v. Atwood, 171 Ariz. 576, 612-13, 832 P.2d 593, 629-30 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, ¶ 25, 25 P.3d 717, 729 (2001). In Atwood, the court stated "a defendant is not prejudiced if the jury is (1) instructed to consider each offense separately, and (2) is advised that each offense must be proven beyond a reasonable doubt." Id. at 613, 832 P.2d at 630; accord State v. Prince, 204 Ariz. 156, ¶ 17, 61 P.3d 450, 454 (2003). Here, the jury was given such instructions. We therefore conclude Peters was not prejudiced by the joinder of the offenses, and the court did not abuse its discretion in denying his motion for severance.
The state asserts that Peters's argument regarding severance is either moot, because he will be receiving a new trial on the murder-related charges, or meritless, because the jury's guilty verdicts on the trailer home charges demonstrated that jurors considered each charge separately. However, these arguments only address Peters's contention that the jury's consideration of the murder charge was prejudiced by the evidence of the trailer home charges; they do not address the possibility that, as Peters suggests, the opposite occurred.
Disproportionality
¶16 Peters next claims his sentences were disproportionate to his offenses and therefore violated the Eighth Amendment. Although he did not object on this basis below, this court has held that, where a defendant has not had an opportunity to challenge a court's sentencing decision before pronouncement of sentence, "failure to challenge the sentence [after its imposition] at the sentencing hearing cannot be fairly characterized as a forfeiture or waiver." State v. Vermuele, 226 Ariz. 399, ¶¶ 6, 9, 249 P.3d 1099, 1101, 1102 (App. 2011).
¶17 We review de novo whether a sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. See State v. Kasic, 228 Ariz. 228, ¶ 15, 265 P.3d 410, 413 (App. 2011). Peters "does not challenge the sentencing guidelines and ranges of punishment," only the "application of the penological plan to his facts and circumstances."
¶18 It is only in an "'exceedingly rare'" case that a sentence of a term of years will be found to violate the Eighth Amendment. State v. Berger, 212 Ariz. 473, ¶ 17, 134 P.3d 378, 382 (2006), quoting Ewing v. California, 538 U.S. 11, 21 (2003) (plurality opinion). In determining whether a sentence of incarceration is unconstitutional, "[w]e must first determine whether an inference of gross disproportionality between [Peters]'s offenses and his sentence can be drawn." State v. Davis, 206 Ariz. 377, ¶ 35, 79 P.3d 64, 71 (2003).
To the extent Peters suggests the combination of all his sentences consecutively is disproportionate, we disregard that claim, given that "'the imposition of consecutive sentences'" is generally not considered in a disproportionality analysis. Berger, 212 Ariz. 473, ¶ 27, 134 P.3d at 384, quoting State v. Davis, 206 Ariz. 377, ¶ 47, 79 P.3d 64, 74 (2003).
¶19 "A prison sentence is not grossly disproportionate, and a court need not proceed beyond the threshold inquiry, if it arguably furthers the State's penological goals and thus reflects 'a rational legislative judgment, entitled to deference.'" Berger, 212 Ariz. 473, ¶ 17, 134 P.3d at 382, quoting Ewing, 538 U.S. at 30. Peters has not claimed in any way that his sentences do not further the penological goals of the statutes. His argument is limited to comparison of his sentences with those imposed on other offenders and a discussion of the severity of the harm done by his offenses. The former, we will not consider until a defendant has made a threshold showing of disproportionality. Kasic, 228 Ariz. 228, ¶ 27, 265 P.3d at 416. The latter argument is essentially an invitation for this court to re-weigh the aggravating and mitigating factors, which we will not do. See State v. Long, 207 Ariz. 140, ¶ 37, 83 P.3d 618, 625 (App. 2004) ("If sufficient and appropriate aggravating circumstances exist to justify imposition of an aggravated sentence, we will find no abuse of discretion in the trial court's decision to impose such a sentence."). Because Peters has failed to make even a threshold showing that his sentences were disproportionate, we conclude his sentences did not violate the Eighth Amendment.
Consecutive Sentences
¶20 Peters contends the trial court erred in ordering that the sentence for weapons misconduct be consecutive to the sentence for unlawful discharge of a firearm when those counts involved the same firearm and the same sequence of events. The state concedes this was error. Peters logically could not have discharged a weapon without possessing it. And, the evidence establishing he had fired the gun was the same evidence that established he had possessed it. Thus, the conduct constituted a single act for purposes of A.R.S. § 13-116 and State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989), and we accept the state's concession. See State v. Nordstrom, 206 Ariz. 242, ¶ 23, 77 P.3d 40, 46 (2003). Accordingly, we modify the sentence on count four, unlawful discharge of a firearm, to be concurrent with the sentence on count three, misconduct involving a weapon. See State v. Carreon, 210 Ariz. 54, ¶ 109, 107 P.3d 900, 921 (2005) (modifying sentence after Gordon error without remand); State v. Gourdin, 156 Ariz. 337, 339, 751 P.2d 997, 999 (App. 1988) (recognizing A.R.S. § 13-4037(A) allows court of appeals to modify illegal sentence).
We commend the state's counsel for his professionalism and candor in so doing. See ER 3.3, Ariz. R. Prof'l Conduct, Ariz. R. Sup. Ct. 42.
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Discharge Within or Into City Limits
¶21 Lastly, Peters contends this court should take judicial notice of the fact that the address where he discharged the firearm is not within the Casa Grande city limits, and therefore vacate his conviction and sentence for this offense. As evidence of this fact, Peters has submitted a letter from the City of Casa Grande Planning and Development Director stating that the address where he discharged the firearm is not within Casa Grande city limits, as well as a map showing the same.
¶22 In State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997), our supreme court rejected the procedure Peters suggests we adopt here, noting that appellate courts are not fact-finders and "do not consider materials that are outside the record on appeal." Although Schackart did not foreclose the possibility of an appellate court ever taking judicial notice of a fact, the court found it is inappropriate to do so when the appellate court would be required to determine the authenticity of a document, id., which is precisely what would be required here. Moreover, even if the address where Peters fired the gun is outside the city limits of Casa Grande, he still may be guilty of this offense if he fired the shot into the city limits. See A.R.S. § 13-3107(A). Whether or not that occurred is a factual issue that we leave to the trial court, should a proper presentation of this claim be made in a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P.
Disposition
¶23 For the foregoing reasons, we affirm Peters's convictions, affirm his sentences on the convictions for weapons misconduct and resisting arrest, and modify his sentence for unlawful discharge of a firearm (count four), which shall be served concurrently with his sentence for the weapons misconduct conviction in count three.