State v. Hoke

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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. ) ) ROBERT ALLEN HOKE, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 01/28/2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0209 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 1993-091155 The Honorable Sheila A. Madden, Commissioner AFFIRMED Terry Goddard, Arizona 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 Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix Robert Allen Hoke Appellant In Propria Persona Phoenix D O W N I E, Judge ¶1 Robert Allen Hoke ( defendant ) appeals from the superior court s finding ensuing disposition. of a probation violation and the Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), counsel for defendant has advised us that he has thoroughly reviewed the record and found no arguable issue of law. Counsel now asks this Court to review the record for fundamental error. 857 P.2d 388, See State v. Richardson, 175 Ariz. 336, 339, 391 (App. 1993). Defendant was given an opportunity to file a pro se supplemental brief, and he has done so. He raises several issues, including: right to appellate (1) denial of the self-representation; (2) ineffective assistance of counsel; (3) lack of subject matter jurisdiction, and (4) insufficiency of the evidence. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 years In September 1994, defendant was sentenced to fourteen in prison after being convicted of attempted conduct with minors and sexual exploitation of a minor. sexual He also received seven years probation upon release from prison for charges relating to taking nude photographs of his minor daughter. ¶3 Defendant was released from prison March 14, 2008. On August 26, 2008, defendant used a computer at the Granite Reef Senior Center in Scottsdale to view sexually explicit images and 2 reply to sexually explicit employee called the police. personal ads on CraigsList.1 Officer T.E. arrived. An He read defendant s response to the ad and observed a picture of two naked Butts. Defendant claimed he was searching for a gay roommate in the ads and did not know they would contain sexually explicit images. He said he had no intention of viewing the images and did not plan to follow through with the sexual talk in his response. Officer T.E. served defendant a trespass warning and reported the incident to defendant s surveillance officer. ¶4 Defendant stimulating and/or was charged sexually with oriented possessing material sexually without prior written approval, in violation of term 25-10 of his probation.2 On February 11, 2009, defendant waived his right to counsel, and the Public Defender was appointed as advisory counsel. ¶5 On February 18, defendant sought a change of judge pursuant to Arizona Rule of Criminal Procedure ( Rule ) 10.2; his request was denied as untimely. filing expired while the Public Because the time for that Defender served as advisory counsel, defendant alleged ineffective assistance of counsel. 1 CraigsList is an online classified-advertisement service. 2 On the State s motion, an allegation that defendant violated term 25-5 by failing to participate in sex offender treatment was dismissed. 3 The trial court denied a motion to stay the proceedings, but granted a continuance defense. to allow defendant time to prepare a The court denied defendant s challenge to its subject matter jurisdiction. ¶6 the At the probation violation hearing on March 17, 2009, trial court struck defendant s request to subpoena the legislature and deliver 45 200+page letters alerting it to the fraudulent indictment against defendant s objections to defendant. alleged defects It in also the denied indictment. The court further denied a motion to dismiss claiming no lawyer could provide effective assistance of counsel due to an inherent bias resulting from an attorney s duty, as an officer of the court, to ensure defendant goes to prison. ¶7 After a hearing at which defendant testified, the trial court found he had violated the terms of his probation. At the disposition hearing that immediately followed, the court considered statements from defendant s daughter urging leniency. Defendant was reinstated on probation for seventy-six months, with a modified start date of May 14, 2008. He was also ordered to serve a deferred jail term of two months, with no credit for sixty-one days spent in custody, and subject to modification or deletion upon petition by the probation officer. Defendant was prohibited from accessing a computer without written permission. 4 DISCUSSION ¶8 We have read and considered the briefs and reviewed the entire record. We find no conducted error. compliance and authority.3 counsel fundamental in Procedure, See Leon, 104 Ariz. at 300, 451 P.2d at 881. the with the disposition Defendant present, All was advised of of Arizona was within afforded the the a proceedings Rules the hearing alleged were of Criminal trial court s with advisory violations, had an opportunity to present his defense, and the proceedings were recorded. 1. ¶9 Appellate Self-Representation Defendant contends he has a right to represent himself on appeal and argues this Court s July 21, 2009 order denying counsel s motion to withdraw on those grounds was erroneous. disagree. We Defendant has filed a forty-page pro se supplemental brief raising all of the issues he deems relevant and has thus availed himself of a procedural representation in an Anders proceeding. opportunity for self- See Anders, 386 U.S. at 739-40. 3 The trial court had discretion about whether to give defendant credit for time spent in custody. State v. Snider, 172 Ariz. 163, 165-66, 185 P.2d 495, 497-98 (App. 1992) (no credit for seventy-two days defendant spent in custody during probation violation proceedings); State v. Brodie, 127 Ariz. 150, 151, 618 P.2d 644, 645 (App. 1980) (defendant not entitled to offset presentence jail time against probationary jail time). 5 2. Ineffective Assistance of Counsel ¶10 [I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Any such claims improvidently raised . in a direct appeal . . will appellate courts regardless of merit. 3. ¶11 not be addressed by Id. Subject Matter Jurisdiction Defendant argues the superior court lacked subject matter jurisdiction because the underlying indictment against him was defective, and the criminal statutes upon which it was based were unconstitutional. never waived appeal. and may be Subject matter jurisdiction is raised at any time, including on State v. Buckley, 153 Ariz. 91, 93, 734 P.2d 1047, 1049 (App. 1987) (citation omitted). ¶12 Subject matter jurisdiction is the power of a court to hear and determine a controversy. State v. Fimbres, 222 Ariz. 293, 301, ¶ 29, 213 P.3d 1020, 1028 (App. 2009) (internal quotations and citations omitted). the Arizona jurisdiction Constitution of the superior Article 6, Section 14(4) of governs courts the in subject criminal matter cases and declares that superior courts shall have original jurisdiction in [c]riminal cases amounting to felony. State v. Maldonado, 573 Ariz. Adv. Rep. 8, ¶¶ 20-21 (Jan. 7, 2010) (affirming same 6 conclusion in Fimbres, 222 Ariz. at 301, ¶ 29, 213 P.3d at 1028). ¶13 In a criminal case, subject matter jurisdiction is established when the indictment is filed. Fimbres, 222 Ariz. at 302, ¶ 33, 213 P.3d at 1029 (citation omitted). Any attack on an indictment after filing is not based on the lack of the court s subject matter jurisdiction, but on the basis of its insufficiency or on a technical defect of its contents. Buckley, 153 Ariz. at 93, 734 P.2d at 1049 (emphasis added). Objections to an indictment must be raised at least twenty days before trial. Ariz. R. Crim. P. 13.5(e), 16.1(b). See also State v. Anderson, 210 Ariz. 327, ¶ 16, 111 P.3d 369, 377-78 (2005). The failure to absent fundamental error. timely object waives the objection See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). ¶14 which Here, the underlying indictment alleged felonies over the superior court had original jurisdiction under the Arizona Constitution. Defendant did not timely challenge the subject matter Art. 6, § 14(4). indictment or allege fundamental error during the time for appealing the underlying conviction. The trial court correctly ruled that time expired many years ago. See State v. Herrera, 121 Ariz. 12, 14, 588 P.2d 305, 307 (holding that an appeal from the judgment of guilt be taken with dispatch from the original date of conviction) 7 (citations omitted). Similarly, defendant failed to timely attack the constitutionality of the criminal statutes governing the underlying case. probation He may not do so now. revocation procedurally precluded and Id. (in appeal from resentencing, from attacking defendant constitutionality was of underlying rape conviction). 4. ¶15 Insufficiency of Evidence Lastly, defendant argues insufficient evidence supports the trial court s decision. We conclude otherwise. ¶16 must A probation violation preponderance of the evidence. be established by Ariz. R. Crim. P. 27.8(b)(3); State v. Vaughn, 217 Ariz. 518, 522, ¶ 18, 176 P.3d 716, 720 (App. 2008). of discretion. We review the trial court's decision for an abuse State v. Lawson, 19 Ariz. App. 536, 537, 509 P.2d 229, 230 (1973). We will not reverse a finding of a probation violation unless it is arbitrary or unsupported by any theory of the evidence. State v. Stotts, 144 Ariz. 72, 79, 695 P.2d 1110, 1117 (1985). ¶17 The State established by a preponderance of the evidence that defendant violated term 25-10 of his probation. In his statement to Officer T.E., defendant demonstrated awareness that [a] term of his probation is that he not look at Sexual [sic] explicit material. His probation officer testified defendant was never given permission to access or 8 possess any defendant sexually stated: I stimulating went to material. the personal Nonetheless, section of Men seeking Men for the purpose of looking for gay ads that was [sic] seeking roommates . . . . While clicking on nearly every ad, I was amazed that there [were] many ads that included nude pictures of themselfs [sic] often with erect penis [sic] and showing their explicit, ass. defendant Although admitted parts including penises. viewing the pictures images of were naked body Two witnesses, Officer T.E. and an of images. The employee told Officer T.E. he believed defendant looking sexually up graphic senior denied employee was the he center, porn. saw Further, details in defendant defendant his response viewing stated to the graphic explanatives [sic] of a sexual nature. such he ad put with We find no error in the trial court s conclusions, particularly in light of its credibility determinations. Ariz. 202, credibility 203, of a 818 P.2d witness is See State v. Gallagher, 169 187, for 188 (App. the 1991) ( [T]he trier-of-fact, not an appellate court. ). CONCLUSION ¶18 We affirm the finding of a probation violation and the disposition obligations ordered by pertaining appeal have ended. to the superior defendant s court. representation Counsel s in this Counsel need do nothing more than inform 9 defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). days On the court s own motion, defendant shall have thirty from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ PATRICIA K. NORRIS, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 10

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