State v. Svanoe

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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. ) ) GERALD VICTOR SVANOE, ) ) Appellant. ) ) ) ) __________________________________) DIVISION ONE FILED: 12/29/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-0942 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Apache County Cause No. CR2007161 The Honorable Michael P. Roca, Judge Pro Tem AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Emily L. Danies Attorney for Appellant Phoenix Tucson O R O Z C O, Judge ¶1 Gerald convictions offenses. and Victor Svanoe sentences for (Defendant), eight counts of appeals his drug-related ¶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 search of the entire appellate record, she found no arguable question of law that was not frivolous. 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). 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, (App. 927 P.2d 804, 805 1996). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2001), and -4033.A.1 (Supp. 2009).1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 In (Officer O.) 2006, Apache received a County narcotics letter written officer by Defendant addressed to the Apache County Sheriff s Office. 1 Chris O. and Defendant s We cite the current version of the applicable statutes because no revisions material to this decision have since occurred. 2 letter implied the sheriff s office seized a package Defendant was expecting from his post office box. The letter discussed the In benefits letter, of Officer legalizing O. asked marijuana. the Postmaster reaction to the contact him if to Defendant received another package. ¶5 On July 1, 2006 and August 24, 2006, the Postmaster contacted Officer Defendant. regarding two packages delivered to Both packages were identified by Officer O. s drug detection package O. canine was as turned having over illegal to a drug postal odors. The first inspector, who later obtained a federal search warrant and found approximately one ounce of marijuana in the package. ¶6 Officer August 24, Officer 2006 O. O. observed package stopped to controlled Defendant. Defendant warrant for the package. a and served delivery of the Following delivery, him a with search Officer O. asked Defendant what was in the package and Defendant replied that there was marijuana, among other things. ¶7 On April 30, 2007, Deputy Craig W. (Deputy W.) of the Apache County Sheriff s Office was contacted by St. John s Police Detective Lucas R. (Detective R.) regarding the arrest of a juvenile, J.W., for drug-related charges. that J.W. Detective smoked R. went marijuana to with Defendant s 3 Deputy W. was told Defendant. residence Deputy where W. they and asked Defendant about J.W. s claims. Defendant admitted to smoking marijuana with J.W. ¶8 J.W. testified that when he asked Defendant marijuana, if he had it, he d give it to me. for However, J.W. clarified that Defendant never gave him the marijuana to take home; he was only allowed Defendant s residence. years old. to smoke it with Defendant at At the time of trial, J.W. was seventeen Defendant admitted at trial to sharing and smoking a pipe containing marijuana with J.W. sometime between April 1, 2007 and April 30, 2007. ¶9 During the April 30, 2007 visit residence, another juvenile, J.E., was present. to Defendant s After Detective R. advised Defendant of his Miranda2 rights, he asked Defendant for the marijuana. smoke names of the juveniles with whom he had smoked Defendant pointed at J.E. and said [h]e s the one I marijuana with. J.E. testified that Defendant s house to smoke marijuana with him. he had gone to At the time of trial, J.E. was fifteen years old. ¶10 During cross-examination, Defendant admitted that: (1) he shared and smoked marijuana with J.E. on or around April 30, 2007; (2) he knew sharing and smoking marijuana with J.W. and J.E. was illegal; 2 (3) he knew both J.W. and J.E. were under the Miranda v. Arizona, 384 U.S. 436 (1966). 4 age of eighteen when he shared and smoked marijuana with them; (4) on or about August 28, 20063 and April 30, 2007, he possessed both marijuana and drug paraphernalia; his conduct he knew possession and (5) at the time of of marijuana and drug paraphernalia was illegal and prohibited by Arizona law. ¶11 motion Prior to trial, on June 19, 2007, Defendant filed a to determine represent himself. representation asking to be allowed to On June 28, 2007, Defendant filed a request for a Donald hearing4 for the purposes of demonstrating on the record in open Court that Defendant understands the [plea] offer made and makes a knowing and voluntary decision to reject it. However, a Donald hearing was never held. ¶12 On July 9, 2007, the trial court held a hearing on Defendant s Motion to Determine Representation. Finding Defendant knowingly, intelligently, competently, and voluntarily 3 Although the transcript indicates the State originally referred to April 28, 2006 as one of the dates in question, the State subsequently examined Defendant using August 28, 2006 as the date in question. The State s use of August 28, 2006 as the date in question is consistent with Counts VII and VIII of its Complaint. 4 State v. Donald, 198 Ariz. 406, 418, ¶ 6, 10 P.3d 1193, 1205 (App. 2000) (holding that (1) a defendant suffers a constitutionally significant injury who loses a favorable plea bargain as a consequence of ineffective assistance of counsel; (2) the loss of a favorable plea agreement due to ineffectiveness of counsel is not relieved by the defendant's receipt of a fair trial; and (3) the court has power to fashion a remedy for such a deprivation, including, if warranted under the circumstances, an order to reinstate the original plea offer. ). 5 moved to represent himself, the trial court accepted Defendant s waiver of counsel. However, the trial court ordered Defendant s counsel to assume the role of advisory counsel. ¶13 On July 30, 2007, the trial court ordered a Rule 11 evaluation to inquire into Defendant s competency to stand trial, ability to represent himself, and his state of mind at the time of the offense. Defendant was evaluated by two experts, Jack L. P., M.D. (Dr. P.) and Eugene R. A., M.D (Dr. A.). Dr. P. concluded Defendant was not competent to stand trial because although he obviously has a factual understanding of the proceedings . . . he does not have a rational understanding and he is attempting to use the justice system in a manner for which it is not designed. that Defendant was incapable of Dr. P. also concluded effectively assisting his attorney in his defense. ¶14 trial, Dr. but A. concluded incompetent disorganization. Dr. to Defendant was represent himself A. found competent to because Defendant had stand of a his clear understanding of the charges and the law and the purpose of the various officers of the court. Defendant s disorganization Moreover, Dr. A. concluded that is not causing him to be incompetent to stand trial. ¶15 On November 6, 2007, the trial court held a Rule 11 hearing and heard testimony from both Dr. P. and Dr. A.. 6 The trial court found Defendant competent to stand trial. Subsequently, the trial court found Defendant competent to stand trial but incompetent to represent himself. ¶16 Following alternates was voir dire, empanelled. a twelve-person After a jury two-day with jury two trial, Defendant was found guilty of: (1) two counts of involving a minor in a drug offense; (2) two counts of transfer of marijuana; (3) two counts of possession of marijuana; and (4) two counts of possession of drug paraphernalia. Defendant was sentenced to a total of nine and one-half years in prison. DISCUSSION Sufficiency of the Evidence ¶17 This court will not disturb the fact finder s decision if there is substantial evidence to support its verdict. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). Defendant was charged with eight separate counts of drug-related offenses. ¶18 minor To convict Defendant of counts I and II, involving a in a drug offense, the State must prove Defendant knowingly transferred, or offered to transfer, marijuana to a minor. A.R.S. §§ 13-3409.A.2 (Supp. 2009), -3405.A.4 (Supp. 2009). To convict Defendant of counts III and IV, transfer of marijuana, the State must prove Defendant knowingly transferred, or offered to transfer, marijuana. 7 A.R.S. § 13-3405.A.4. To convict Defendant of counts V and VII, possession of marijuana, the State must marijuana. prove A.R.S. § Defendant knowingly 13-3405.A.1. To possessed convict or used Defendant of counts VI and VIII, possession of drug paraphernalia, the State must prove Defendant possessed, with intent to use or deliver, drug paraphernalia. ¶19 A.R.S. § 13-3415 (2001). On cross-examination, Defendant admitted to committing each of the elements of counts I through VIII. Moreover, we find further support that Defendant committed the elements of counts I through VIII in the testimony from the investigating officers reviewing and the the two record, minors we involved find the in State the case. elicited After sufficient evidence to convict Defendant of counts I through VIII. Rule 11 Competency to Stand Trial ¶20 Prior to trial, the trial court ordered a Rule 11 evaluation to determine Defendant s competency to stand trial. See Ariz. R. Crim. P. 11.5 shall not be tried, Pursuant to Rule 11.1, [a] person convicted, sentenced or punished for a public offense . . . while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own 5 Unless otherwise specified, hereafter, an Arizona Rule of Criminal Procedure is referred to as Rule ___. 8 defense. Following the Rule 11 Hearing, the trial court found Defendant competent to stand trial. ¶21 [T]he determination of competency to stand trial is always and exclusively a question for the court. Bishop v. Superior Court, 150 Ariz. 404, 409, 724 P.2d 23, 28 (1989). The judge s duty is to evaluate the data and determine whether the defendant s functional impairment is cumulatively so great that he fails to meet the minimum performance level necessary for the satisfaction of due process and the preservation of the integrity of the criminal adversary system. internal quotations omitted). We review a trial court s finding of competency for abuse of discretion. Ariz. 486, 495, 826 P.2d Id. (citations and 783, 792 State v. Brewer, 170 (1992). On appeal, we determine whether reasonable evidence supports the trial court s finding that the defendant was competent, considering the facts in the light most favorable to sustaining the finding. ¶22 Id. In this case, the trial court appointed two experts, Dr. P. and Dr. A., to perform Rule 11 evaluations. Dr. P. and Dr. A. disagreed as to Defendant s competency to stand trial. Dr. P. concluded Defendant was not competent to stand trial because although he obviously has a factual understanding of the proceedings . . . he does not have a rational understanding and he is attempting to use the justice system in a manner for which it is not designed. Dr. P. also concluded Defendant was 9 incapable of effectively assisting his attorney in his defense. Dr. A. concluded Defendant was competent to stand trial, but incompetent to represent himself because of his disorganization. Dr. A. found Defendant had a clear understanding of the charges and the law and the purpose of the various officers of the court. Moreover, Dr. A. concluded that Defendant s disorganization is not causing him to be incompetent to stand trial. ¶23 Although the trial court considered differing evaluations in making its competency finding, we cannot say the trial court abused its discretion in light of the evidence. While, Dr. P. believed Defendant was incompetent to stand trial, he did find proceedings. Defendant had a factual understanding of the Moreover, Dr. A. s evaluation presented sufficient evidence for the trial court to find Defendant competent to stand trial. In viewing this evidence in the light most favorable to sustaining the competency ruling, we find no abuse of discretion. Incompetent for Purposes of Self-Representation ¶24 Following the Rule 11 Hearing, the trial court found Defendant incompetent to represent himself. Although the trial court originally accepted Defendant s waiver of counsel after the July 9, 2007 hearing on Defendant s Motion to Determine 10 Representation, we find the trial court properly ruled Defendant incompetent to represent himself. ¶25 In Godinez v. Moran, the United States Supreme Court stated, the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. [A]lthough the defendant may conduct his own defense ultimately to his own detriment, his choice must be honored. Thus, while [i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel s guidance than by their own unskilled efforts, a criminal defendant s ability to represent himself has no bearing upon his competence to choose self-representation. 509 U.S. 389, omitted). Supreme 399-400 (1993) (citations omitted; footnote However, in Indiana v. Edwards, the United States Court Constitution announced permits a States narrow to exception, insist upon holding, the representation by counsel for those competent enough to stand trial under Dusky [v. United States, 362 U.S. 402 (1960)] but who still suffer from severe competent to mental illness conduct trial to the point proceedings where by they are themselves. not 128 S.Ct. 2379, 2388 (2008). ¶26 In this evidence of Defendant s appointed experts case, who the trial court mental illness performed Rule was from 11 presented the with two court- evaluations. Both experts opined that they did not believe Defendant could proceed in propria persona due to his disorganization. 11 Because, [n]o trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court, Massey v. Moore, 348 U.S. 105, 108 (1954), we find the trial court correctly found Defendant incompetent to represent himself. Request for a Donald Hearing ¶27 On June 28, 2007, Defendant filed a request for a Donald hearing for the purposes of demonstrating on the record in open Court that Defendant understands the [plea] offer made and makes a knowing and voluntary decision However, a Donald hearing was never held. to reject it. For the following reasons, we find the trial court did not err in failing to hold a Donald hearing. ¶28 The whether losing a a purpose defendant favorable of a Donald has suffered a plea bargain as hearing is to constitutional a result of establish injury by ineffective assistance of counsel. Donald, 198 Ariz. at 418, ¶ 46, 10 P.3d at a 1205. Generally, Defendant present[s] Donald more than hearing a is required conclusory where assertion a that counsel failed to adequately communicate the plea offer or the consequences of conviction. Id. at 413, ¶ 17, 10 P.3d at 1200. Because there is no evidence that counsel failed to adequately communicate a plea offer or the consequences of a conviction to 12 Defendant, the court did not error in failing to hold a Donald hearing. 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 Procedure and jury s finding of guilt. by counsel at all substantial evidence supported the Defendant was present and represented critical stages of the proceedings. 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, with an in propria persona motion for reconsideration6 or petition for review. 6 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the 13 ¶31 For the reasons stated above, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ _________________________________ PHILIP HALL, Presiding Judge /S/ _________________________________ DONN KESSLER, Judge Court s own motion, we extend the time to file such a motion to thirty days. 14

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