State v. Tuccio

Annotate this Case

Download PDF

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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) FRANK PATRICK TUCCIO, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/08/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-0797 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-105983-001 DT The Honorable Jaime B. Holguin, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Frank Patrick Tuccio (Defendant) appeals revocation of his probation and the sentence imposed. the ¶2 Defendant 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), advising this court that after a arguable search of question the of entire law appellate that was not record, he frivolous. found no Despite counsel s brief, Defendant requested counsel raise the following issues on appeal: (1) suppression of evidence1; (2) sufficiency of the evidence; (3) inability of Defendant to call a witness; (4) the trial court s decision not to mitigate Defendant s sentence; and, (5) the court s decision to impose a five-year sentence, despite an earlier promise of a shorter sentence. Defendant was afforded an opportunity to file a supplemental brief in propria persona, but he did not do so. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) 1 sections 12-120.21.A.1 Defendant does not specifically identify what evidence was suppressed. However, a review of the record, including Defendant s petition for post-conviction relief, indicates Defendant is most likely referring to the alleged disclosure violations which occurred at trial. 2 (2002), 13-4031, and -4033.A.1 (Supp. 2008).2 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). ¶5 Pursuant to a plea agreement, on November 8, 2005, Defendant pled guilty to the charge of possession of a dangerous drug for sale in an amount below the statutory threshold. The agreement did not provide for a specific sentence term. However, Defendant and the State agreed, in part, that if the court sentenced Defendant to probation he would serve at least six months in jail, receive white collar 3 terms of probation, and if sentenced to the Department of Corrections that Defendant s term would not exceed the statutory presumptive term of five years. 2 We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 3 White collar terms required Defendant to: (1) obtain written permission before incurring financial obligations or opening new banking accounts; (2) submit accounting records as directed; (3) release banking and financial information as requested; (4) submit copies of financial documents, including tax returns and household income; (5) refrain from gambling; (6) obtain written permission prior to using computer equipment or accessing the internet; (7) make restitution payments; and, (8) notify employers of current convictions. 3 ¶6 On January 13, 2006, the trial court sentenced Defendant to intensive, supervised probation for a period of five years. for six months, community several The court further ordered that he be incarcerated pay restitution, service. Defendant s requirements, including: Probation Department (APD) and terms (1) within 72 serve of to 360 hours probation report hours to of of included the Adult release from residential treatment; and (2) to submit to weekly drug and alcohol testing as required by the APD. ¶7 Defendant On July 27, violated his 2006, and terms again of complete mandatory drug testing. on probation August for 18, 2006, failure to In both instances, Defendant s probation officer requested Defendant be required to submit to more frequent drug testing. The trial court approved these requests. ¶8 On September 25, 2006, after Defendant tested positive for methamphetamine on August 30, 2006, September 5, 2006, and September 14, 2006, Defendant s probation officer recommended Defendant be placed in an inpatient-treatment program. On October 26, 2006, Defendant s probation officer filed a petition to revoke his probation. After a disposition hearing on October 27, 2006, Defendant s probation was reinstated. Defendant was ordered to enroll in the Salvation Army Adult Rehabilitation Center (ARC) beginning on October 30, 2006. 4 On November 14, 2006, Defendant s probation was reduced from level I to level V due to his inpatient status. ¶9 Defendant was directed to remain in the ARC program unless he received prior approval from the intensive probation team to withdraw. times, and probation He was also directed to report the dates, locations officer. of all meetings Defendant he acknowledged attended he to his understood the terms of his probation and that it was his responsibility to comply with the court s orders. ¶10 On March 13, 2007, terminated from the ARC program. program, Defendant did not make Defendant was prematurely After his termination from the contact with his probation officer within 72 hours of his withdrawal, as required by the terms of officer on his probation. March 20, 2007. Defendant On contacted March 21, his 2007, probation Defendant s probation officer signed a petition to revoke his probation.4 On March 28, 2007, the court held a revocation arraignment at which Defendant denied violating the terms of his probation. The court scheduled a non-witness violation hearing for April 18, 2007. This hearing was continued to May 8, 2007. 4 Defendant s probation officer testified at the hearing that the petition to revoke probation was filed on March 21, 2007. The signature on the petition is dated March 21, 2007. However, the record reflects that the petition was not filed until August 9, 2007. There is no explanation for the length of time between the signing of the petition and its filing. 5 ¶11 Despite the revocation petition, Defendant was still required to attend mandatory drug testing. However, on April 12, 2007, Defendant s probation officer signed a Notification of Drug Use/Testing Violation indicating Defendant s missed testing on March 29, 2007, as further justification for revoking Defendant s probation.5 ¶12 The violation hearing continued on May 30, 2007. began on May 8, 2007, and At the hearing, the State alleged five violations of the terms of Defendant s probation.6 ¶13 The first allegation was due to Defendant s failure to report as directed. It was further alleged that by failing to report, Defendant absconded and violated curfew. probation officer testified that Defendant failed Defendant s to timely report his departure from the ARC inpatient-treatment program. Defendant s probation officer testified released from the ARC on March 13, 2007. that Defendant was He also testified that the APD ordered Defendant to report if he was discharged from the ARC. Defendant s probation officer testified that Defendant failed to report to the APD until March 21, 2007, one week later than required. 5 The supplemental petition was also filed on August 9, 2007; again there is no explanation in the record for the delayed filing of the supplemental petition. 6 The alleged violations included: failing to submit to drug testing; failing to report to the APD as directed; absconding; failing to participate in the ARC program; and violating curfew. 6 ¶14 The State also alleged that Defendant s early termination from the ARC constituted a violation of the terms of Defendant s probation. that Defendant was Defendant s probation officer testified prematurely terminated from the failing to follow rules regarding outside contact. ARC for Defendant s probation officer based his testimony on a report obtained from a surveillance officer. However, the State failed to disclose this report to Defendant prior to the hearing. ¶15 Defendant testimony regarding moved to strike Defendant s the probation premature officer s termination because the State failed to disclose the surveillance officer s report. Defendant also requested the dismissal of the case based on the disclosure violation. The court did not dismiss the case; however, it did strike all testimony based on the surveillance officer s report. the probation As a further sanction, the court dismissed violations related to Defendant s early termination from the ARC. ¶16 Finally, the State alleged that Defendant failed to complete required drug testing. Defendant s probation officer testified to that Defendant failed submit testing on March 29 and April 4, 2007. probation officer s testimony, the State to mandatory drug In addition to the introduced a letter from a Treatment Assessment Screening Center (TASC) laboratory supervisor stating that the Defendant did not submit to drug 7 testing on March 29 and April 4, 2007. However, Defendant testified at the hearing that he had completed drug testing and produced receipts from TASC. ¶17 At the conclusion of the hearings, the court found Defendant violated the terms of his probation by failing to report to the APD as directed and for not completing mandatory drug testing. The court sentenced Defendant to the presumptive term of five years with the Arizona Department of Corrections. Defendant received 196 days presentence incarceration credit.7 DISCUSSION Evidence Suppression/Disclosure Violation ¶18 Defendant argues that evidence was unconstitutionally suppressed by the State. Defendant raised the same argument in his petition for post-conviction relief (PCR) but he described the issue as a disclosure violation. based his argument surveillance premature on officer s termination the State s report, from the In his PCR, Defendant failure which ARC. to disclose explained Although the Defendant s Defendant identifies this argument as an unconstitutional suppression of evidence, we believe he is contesting the State s failure to 7 We note that in reviewing the record, the trial court miscalculated Defendant s presentence incarceration credit. Defendant was entitled to 194 days of credit. Because this error favors the Defendant and the State has not filed a crossappeal, this error will not be corrected. See State v. Dawson, 164 Ariz. 278, 281-82, 792 P.2d 741, 744-45 (1990). 8 disclose the surveillance officer s report. Therefore, we treat this issue as a failure to properly disclose evidence. ¶19 this Defendant argues that the State s failure to disclose evidence entire case. should have resulted in the dismissal of his This court will not reverse the judgment of the trial court for disclosure violations unless the Defendant can demonstrate an abuse of discretion and that the abuse prejudiced the Defendant. State v. Nordstrom, 200 Ariz. 229, 251 ¶ 71, 25 P.3d 717, 739 (2001). requires the State Arizona Rule of Criminal Procedure 15.1 to disclose reports enforcement relating to alleged offenses. 15.1.b(3). prepared by law Ariz. R. Crim. P. Defense counsel may remedy a failure by the State to disclose evidence by motioning the court to compel disclosure and apply appropriate sanctions. court has discretion under Ariz. R. Crim. P. 15.7.a. the Rules to apply The sanctions including, but not limited to: (1) excluding the evidence; (2) dismissing the case; and, (3) holding a party in contempt. The court may appropriate. also Id. impose any other sanctions it Id. deems A trial court is not required to dismiss a case for disclosure violations and before dismissing a case with prejudice, a court should consider sanction would be more appropriate. whether a stringent See State v. Meza, 203 Ariz. 50, 58, ¶ 37, 50 P.3d 407, 415 (App. 2002). 9 less ¶20 In this case, Defendant fails to allege or substantiate any prejudice he may have suffered as a result of the trial court s decision. The State violated Rule 15.1 when it failed to timely disclose a document containing the rationale for Defendant s early dismissal from the ARC. However, the court struck testimony and dismissed allegations of probation violations based on this evidence. The court was not obligated to dismiss the entire case as the State presented sufficient evidence to support the remaining charges. Id. We find no reversible error. Sufficiency of Evidence ¶21 Defendant alleges that there was insufficient evidence to support the revocation of his probation. disturb the fact finder s decision evidence to support its verdict. if This court will not there is sufficient See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). Probation violations must be established by a preponderance of the evidence. Ariz. R. Crim. P. 27.8.b(3). ¶22 Defendant s terms of probation included a requirement to complete drug testing as ordered by the APD. At the hearing, Defendant s probation officer testified that Defendant failed to comply with this requirement. The State also introduced a letter from a TASC supervisor stating that Defendant did not complete drug testing on March 29, 2007 and April 4, 2007. 10 ¶23 Defendant was also required to keep the APD aware of his status at the ARC. Defendant s probation officer testified that Defendant failed to report to the APD following his release from the ARC as ordered. Because the State presented sufficient evidence to that Defendant violated the terms of his probation, we affirm the trial court s decision. Inability to Call a Witness ¶24 Defendant alleges that he was unable to call a witness on his behalf. Defendant made a similar argument in his PCR, citing an inability to subpoena a TASC clerk familiar with his drug testing. A defendant is entitled to compel the testimony of witnesses under the Sixth Amendment when their testimony is material and in favor the defendant. State v. Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 10, 42 P.3d 1177, 1181 (App. 2002). When there is nothing in the record to demonstrate that the defendant made any effort to find or subpoena a witness there is no Sixth Amendment violation. State v. Espinosa, 101 Ariz. 474, 476, 421 P.2d 322, 324 (1966). ¶25 witness In this case, nothing testimony would have Defendant. Defendant Additionally, made an attempt in been nothing to the record material in locate the the or suggests in that favor of record suggests alleged witness. Moreover, there is no evidence that Defendant was denied his ability to compel witness testimony by subpoena. 11 Accordingly, we find that Defendant was not denied his right to summon witnesses in his defense. Mitigating Factors and Length of Sentence ¶26 Defendant alleges the trial court erred by failing to give a mitigated sentence, and by proscribing a sentence of five years. the The trial court may consider [any] other factor that court deems appropriate to the ends deciding to impose a mitigated sentence. (2005). of justice when A.R.S. § 13-702.D.5 Absent an abuse of discretion, we will not reverse a trial court s decision to apply a presumptive sentence. State v. Calderon, 171 Ariz. 12, 13-14, 827 P.2d 473, 474-75 (App. 1991). court Nothing in the record before us indicates the trial abused its discretion in sentencing Defendant to a presumptive term. ¶27 Finally, Defendant argues that the trial court failed to follow through with its earlier statement, that it would impose a sentence of less than five years. accuracy of the record presented on appeal. We presume the State v. Diaz, 221 Ariz. 209, ___, ¶ 15, 211 P.3d 1193, 1198 (App. 2009). Reversal is only proper if error is demonstrated; on appeal, Defendants have the burden to present a record containing reversible error. Id. at ___, ¶ 6, 211 P.3d at 1195-96. ¶28 Here, the trial court s alleged promise is not found in the record and the court s remarks are not contained in a 12 transcript. Because we presume the accuracy of the record on appeal, we find no error in the trial court s sentencing. CONCLUSION ¶29 We have read and considered counsel s brief, carefully searched the entire record for reversible error and found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Court s Procedure revocation and of substantial Defendant s evidence the Defendant probation. supported was present and represented by counsel at all critical stages of the proceedings. Defendant was allowed to present evidence and to call witnesses on his behalf. At sentencing, Defendant and his counsel were given an opportunity to speak and the court imposed a legal sentence. ¶30 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, 13 with an in propria persona motion for reconsideration8 or petition for review. ¶31 For the foregoing reasons, Defendant s revocation of probation and sentence are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ _________________________________ MICHAEL J. BROWN, Judge /S/ _________________________________ PATRICIA K. NORRIS, Judge 8 Pursuant to Arizona Rule of Criminal Procedure 31.18.b, Defendant or his counsel have fifteen days to file a Motion for Reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days. 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.