State v. Ficklin

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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 DIVISION ONE FILED: 01/05/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ANDREW DENNIS FICKLIN, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0826 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2004-023628-001 DT The Honorable Warren J. Granville, Judge CONVICTIONS AND SENTENCES AFFIRMED Thomas C. Horne, 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 Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix Andrew Dennis Ficklin Appellant J O H N S E N, Judge Florence ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d conviction assault, of a 878 (1969), following murder, first-degree Class 2 Andrew Class felony; a burglary, a Dennis 1 Ficklin s felony; Class 2 sexual felony; aggravated assault, a Class 3 felony; and attempted first-degree murder, a Class 2 felony, all dangerous offenses. Ficklin s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). to search the record for Counsel now asks this court fundamental filed a supplemental brief. error, and Ficklin has After reviewing the entire record, we affirm Ficklin s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 rooming Two elderly house early women one were morning found in May beaten in 1987; they a Phoenix had been brutally attacked, apparently by someone wielding an aluminum cane or telescoping crutch. 1 B.P. suffered severe injuries. Her roommate, M.W., who was beaten and raped, died of her injuries. The women s attacker was undiscovered for many years. 1 Finally, Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Ficklin. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 in 2004, law enforcement authorities discovered that fingerprints found at the scene and DNA evidence taken from M.W. matched that of Ficklin. ¶3 During the proceedings that followed after Ficklin s arrest, the court twice addressed Ficklin s competency. It granted Ficklin s motion for a competency examination pursuant to Arizona Rule of Criminal Procedure 11 on December 6, 2005. Upon finding Ficklin not competent, the court stayed proceedings for several months until, based on expert testimony, it found that he had been restored to competency. ¶4 On April 9, 2009, as trial drew near, Ficklin moved to dismiss the charges on the ground that he was not competent and not restorable. The superior court ordered a full evaluation pursuant to Rule 11. At an evidentiary hearing conducted over two heard days, the court Ficklin was not competent. Trunzo, a speech language Thomas Thompson, Ph.D., testify The defense also called Mary Jane pathologist, who concluded Ficklin suffers from significant language and cognitive-communication deficits including language, skills, difficulty reading/decoding, and executive with expressive pragmatic functioning and receptive communication, cognitive skills. The court also considered reports of two expert witnesses it appointed, Bruce Kushner, Ph.D., and Gwen Levitt, D.O., both of whom concluded 3 Ficklin was competent. Based on the evidence, the court found Ficklin competent to understand the proceedings and assist his counsel. on its The court explained it was basing its ruling in part own observation appearances. appearances appeared The and both of court during engaged Ficklin noted the and [t]hrough that both competency aware of many during hearing, the court the prior Defendant proceedings and disengaged and focused only on the area directly in front of him. ¶5 After The jury convicted Ficklin of the crimes listed above. hearing evidence relating to alleged aggravating and mitigating factors relevant to the first-degree murder charge, the jury determined to impose a sentence of life imprisonment. The court then sentenced Ficklin to 10.5 years incarceration on each of the other four charges. serve the 2,083 days sentence. sentence of on the presentence sexual It ordered Ficklin first to assault incarceration charge credit and applied against that The court ordered that upon the completion of the sentence on the sexual assault charge, Ficklin would serve two concurrent terms of 10.5 years on the aggravated assault and attempted first-degree murder charges. It then ordered that consecutive to those terms, Ficklin serve concurrent terms of 4 10.5 years incarceration and life imprisonment on the burglary and first-degree murder charges, respectively. ¶6 to Ficklin timely appealed. Article Arizona 6, Section Revised 9, Statutes of We have jurisdiction pursuant the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1), 13-4031 and -4033 (2011). DISCUSSION ¶7 was The record reflects Ficklin received a fair trial. represented by counsel at all stages of the He proceedings against him and was present at all critical stages, except for a handful waived of his hearings, occasions appearance. including findings during that trial, court The hearings Ficklin in held under which competent presented both voluntarily appropriate Rule was he were 11. The supported pretrial court s by the evidence. ¶8 The State direct and evidence sufficient to allow the jury to convict. properly composed of 12 members. circumstantial The jury was The court properly instructed the jury on the elements of the charges and the State s burden of proof. on the Although the court did not directly instruct the jury confirmed necessity by of juror unanimous polling, verdicts, which 5 the verdicts demonstrated were unanimity. Ficklin waived preparation of a presentence report. The sentences the superior court imposed were within legal ranges. 2 CONCLUSION ¶9 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. The only issue that Ficklin raises in his supplemental brief is an argument that his counsel was not effective, but we do not address a claim of ineffective assistance of counsel in a direct appeal such as this. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 2 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective The court s sentencing order states it intended to impose presumptive terms of incarceration on the four charges other than first-degree murder. The 10.5-year sentences the court imposed on the three Class 2 felonies indeed were the presumptive terms under the statutes in effect in 1987, when Ficklin committed his crimes. See A.R.S. §§ 13-701(B)(1), 604(G) (1987) (range of seven to 21 years; presumptive is threefourths of the median). The presumptive sentence for Ficklin s Class 3 felony (aggravated assault), however, was 7.5 years. See A.R.S. §§ 13-701(B)(2), -604(G) (range of five to 15 years; presumptive is three-fourths of the median). The jury s finding that the aggravated assault was a dangerous offense, however, was a sufficient basis for the superior court to impose an aggravated sentence for that conviction. See A.R.S. § 13702(D)(1)-(2) (1987); State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279, 280 (1980) (same factor may be used both to enhance and aggravate a sentence). Moreover, the issue is of no consequence, given the court s order that Ficklin serve his sentence on the aggravated assault conviction concurrently with the 10.5-year sentence imposed on the charge of attempted firstdegree murder. 6 assistance of counsel claim to be raised in Arizona Rule of Criminal Procedure 32 proceeding). ¶10 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Ficklin s representation in this Defense counsel need do no more than inform Ficklin of the outcome of this appeal and his future options, 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, 15657 (1984). On the court s own motion, Ficklin has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Ficklin has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICIA A. OROZCO, Judge /s/ LAWRENCE F. WINTHROP, Judge 7

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