Opinion
1 CA-CR 12-0210
04-09-2013
STATE OF ARIZONA, Appellee, v. TRISTIN JEAN THOMAS, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee The Law Offices of Kelly A. Smith By Kelly A. Smith Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Yuma County
Cause No. S1400CR201001336
The Honorable Mark Wayne Reeves, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
Attorneys for Appellee
Phoenix The Law Offices of Kelly A. Smith
By Kelly A. Smith
Attorney for Appellant
Yuma KESSLER, Judge ¶1 Appellant Tristin Jean Thomas ("Thomas") was convicted of unlawful use of means of transportation pursuant to Arizona Revised Statutes ("A.R.S.") section 13-1803(A)(1) (2010), a class five felony and a lesser-included offense of the original charge of theft of means of transportation. Counsel for Thomas filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Thomas was given the opportunity to, but did not file, a pro per supplemental brief. For the reasons that follow, we affirm Thomas's conviction and sentence as modified.
FACTUAL AND PROCEDURAL HISTORY
¶2 Thomas was arrested in August 2010 after the Yuma County Sherriff's Office located her in a car that her mother had reported stolen one day earlier. Thomas's mother reported to police that she believed her daughter took her car without her permission nine days earlier and that she had not seen her car or her daughter since. A police officer located the stolen car during a traffic stop. Thomas was a passenger in the car and was accompanied by three other women, one of whom had gotten permission from Thomas to drive the car. All three women claimed that they did not know the car had been reported stolen. When police stopped Thomas, she was intoxicated, combative, and required restraint. Thomas was arrested and was charged with one count of theft of means of transportation, a class three felony, pursuant to A.R.S. § 13-1814 (2010). ¶3 Thomas was accepted into the Track 1 Pre-Conviction Drug Court Program ("Drug Court Program"), under the following conditions: 1) if she successfully completed the Drug Court Program, the charge against her would be dismissed, but 2) if she failed to comply with all of the requirements of the Drug Court Program, she would be terminated from the program, would be tried only by a judge, and would only be able to present as evidence the police report and other disclosure by the prosecutor. This process is referred to as a "slow plea." ¶4 In March 2011, Thomas successfully completed a residential substance abuse treatment program and was ordered to reside at the "TLC house" as a condition of the Drug Court Program. In April 2011, Thomas left the TLC house and did not return. Thomas admitted to having consumed alcohol, and she was taken into custody. However, Thomas was permitted to remain in the Drug Court Program. On May 16, 2011, Thomas was released from custody and allowed to enter another residential treatment program. In July 2011, the court remanded Thomas into custody for two days for non-compliance with the Drug Court Program but allowed her to remain in the Drug Court Program. On September 2, 2011, as a sanction for Thomas's non-compliance, the superior court ordered Thomas to self-surrender into custody the next day. Thomas failed to self-surrender, and she was remanded back into custody on September 7, 2011. On September 30, 2011, the court terminated Thomas from the Drug Court Program, and a bench trial was held on January 23, 2012. ¶5 At the bench trial, the superior court heard opening statements on behalf of the State and Thomas and reviewed the police report and related documents. The court found Thomas guilty of unlawful use of means of transportation, a class five felony and a lesser-included offense of the original charge. Thomas was sentenced to a mitigated term of 1.25 years' imprisonment and given 350 days of presentence incarceration credit. Thomas timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A)(1) (2010).
DISCUSSION
¶6 In an Anders appeal, this Court must review the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, and is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). We will only reverse if the defendant can prove the error caused prejudice. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. ¶ 7 After a thorough review of the record, we find no grounds for reversal of Thomas's conviction. The record reflects Thomas had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Thomas was present and represented at all critical stages, including the bench trial, was given the opportunity to speak at sentencing, and the sentences imposed were within the range for Thomas's offenses. See A.R.S. § 13-702(D) (2010).
I. Sufficiency of the Evidence ¶8 In reviewing the sufficiency of evidence at trial, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶9 To convict Thomas of unlawful use of means of transportation, the State needed to prove that Thomas, "without intent permanently to deprive . . . [k]nowingly [took] unauthorized control over another person's means of transportation." A.R.S. § 13-1803(A)(1). "'Taking unauthorized control' in [A.R.S. § 13-1803] . . . is broad," and encompasses a situation in which a defendant uses the vehicle for any unauthorized purpose. State v. Griest, 196 Ariz. 213, 214, ¶ 5, 994 P.2d 1028, 1029 (App. 2000) (quoting A.R.S. § 13-1803). The "control" necessary to constitute a violation of this statute, however, must be associated with use of the vehicle as means of transportation, not merely unauthorized entry or other trespassory conduct. State v. Hoag, 165 Ariz. 215, 218-19, 797 P.2d 1233, 1236-37 (App. 1990). ¶10 Thomas's mother reported to police on August 19, 2010 that on August 11, 2010, Thomas took the keys to her mother's car out of her mother's bedroom, and about an hour later, Thomas's mother noticed that both Thomas and the car were gone. On August 20, 2011, police located the stolen vehicle during a traffic stop and found Thomas was a passenger of that car. The driver and the other passengers told police that Thomas had given the driver permission to drive. Thus, sufficient evidence establishes Thomas used the car for an unauthorized purpose without her mother's permission.
II. Thomas's Stipulation to a Bench Trial ¶11 As a condition of Thomas's acceptance into the Drug Court Program, Thomas agreed to waive her jury trial rights and stipulate to a bench trial in which the police report would be the only evidence. A defendant may waive her right to a jury trial with the consent of the court, but before doing so, the court must "address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent." Ariz. R. Crim. P. 18.1(b)(1). Initially, the record on appeal lacked evidence to demonstrate such a colloquy took place. ¶12 We ordered the parties to file briefs pursuant to Penson v. Ohio, 488 U.S. 75 (1988), to address: 1) whether a colloquy was necessary for the trial court to determine that Thomas knowingly, voluntarily, and intelligently relinquished her jury trial rights and submitted the case to the court for a bench trial on a stipulated record; 2) if such a colloquy was necessary, was the record sufficient to allow this Court to presume a colloquy was given; and 3) assuming a colloquy was necessary and the record was insufficient, was the appropriate remedy a new trial or a remand for an evidentiary hearing. Prior to the parties' submission of their Penson briefs and upon the State's motion, this Court ordered the superior court to prepare the transcripts from Thomas's bench trial and pre-trial hearing. Those transcripts were filed with this Court in February 2013. ¶13 Both parties agree that a colloquy was necessary for the superior court to determine that Thomas knowingly, voluntarily, and intelligently relinquished her right to a jury trial and submitted the case for a bench trial on a stipulated record. The parties also agree that upon the filing of the supplemental transcripts, the record clearly demonstrates such a colloquy took place. ¶14 State v. Avila requires that in any proceeding in which a defendant waives her constitutional rights to a jury trial, the record must demonstrate the waiver was knowingly, intelligently, and voluntarily made. 127 Ariz. 21, 25, 617 P.2d 1137, 1141 (1980). "Although the defendant's waiver may be either written or oral, pursuant to [Arizona Rule of Criminal Procedure] 18.1(b)(2), the court must always address the defendant personally" to determine that the waiver is knowing, voluntary, and intelligent. State v. Butrick, 113 Ariz. 563, 566, 558 P.2d 908, 911 (1976). "Such condition of mind, moreover, will not be presumed from a silent record." Avila, 127 Ariz. at 25, 617 P.2d at 1141. ¶15 In State v. Conroy, our supreme court clarified that although a court is not required to provide the "entire Boykin litany" to all defendants who waive their right to a jury trial, it is required to provide that information to those who waive a jury trial and submit the case on a stipulated record. 168 Ariz. 373, 375, 814 P.2d 330, 332 (1991). Because Thomas waived her right to a jury trial and submitted the case to a bench trial on only the police report, the court was required to conduct a colloquy similar to that required by Boykin. ¶16 The supplemental transcripts provided to this Court demonstrate the superior court engaged in the required colloquy with Thomas. Regarding Thomas's "slow plea" agreement, the court ensured Thomas read and understood the agreement and that she signed it voluntarily. The court informed Thomas of the sentencing range applicable to the charge and of her right to a trial by jury. The court also informed Thomas that by giving up her right to a jury trial, she was agreeing to have her guilt or innocence decided by only the judge and that she could be convicted based on only the police report. Finally, the court ensured that Thomas understood that by agreeing to the "slow plea," Thomas was agreeing to waive her right to confront and cross-examine witnesses, to call witnesses on her behalf, to submit her own evidence, and to testify. Thus, the record demonstrates that the court ensured that Thomas waived her jury trial rights knowingly, voluntarily, and intelligently.
The " Boykin litany" refers to the warnings which must be afforded to a defendant before accepting a guilty plea. Conroy, 168 Ariz. at 374 n.1, 814 P.2d at 331 n.1. "[T]hose rights which are waived by submission of the case to the court or of which defendant must be informed" are as follows:
1. The right to a trial by jury where he may have representation of counsel;
2. The right to have the issue of guilt or innocence decided by the judge based solely upon the record submitted;
3. The right to testify in his own behalf;
4. The right to be confronted with the witnesses against him;
5. The right to compulsory process for obtaining witnesses in his favor;
6. The right to know the range of sentence and special conditions of sentencing.
III. Presentence Incarceration Credit ¶17 Presentence incarceration credit is given for time spent in custody beginning on the day of booking, State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993), and ending on the day before sentencing, State v. Hamilton, 153 Ariz. 244, 246, 735 P.2d 854, 856 (App. 1987). Thomas received 350 days of presentence incarceration credit. Thomas was in custody between August 20, 2010 and October 14, 2010, between November 12, 2010 and January 24, 2011, between April 11, 2011 and May 16, 2011, between July 15, 2011 and July 17, 2011, and between September 7, 2011 and March 27, 2012, the date of her sentencing. The record indicates Thomas was in custody 371 days, excluding the date she was sentenced. Because Thomas was only given 350 days' credit but actually served 371, we modify her sentence to reflect this correction.
CONCLUSION
¶18 For the foregoing reasons, we affirm Thomas's conviction but modify her sentence to grant her 371 days of presentence incarceration credit. Upon the filing of this decision, counsel shall inform Thomas of the status of the appeal and her 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). Thomas shall have thirty days from the date of this decision to proceed, if she so desires with a pro per motion for reconsideration or petition for review.
______________
DONN KESSLER, Judge
CONCURRING: ______________
MICHAEL J. BROWN, Presiding Judge
______________
LAWRENCE F. WINTRHOP, Judge
Avila, 127 Ariz. at 24-25, 617 P.2d at 1140-41.