STATE v. DANIELS
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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. DAISY DANIELS, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 7/11/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0789 1 CA-CR 12-0063 (Consolidated) DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-105725-001 and CR2008-164770-001 The Honorable William L. Brotherton, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Daisy Daniels appeals from her conviction for Aggravated Assault, a class 3 dangerous felony, the revocation of her probation sentences. in CR2008-164770-001, and the resulting Daniels counsel filed briefs in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this Daniels court has examine several issues. record filed also the pro se a for reversible supplemental brief error. raising See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We therefrom view the in the light convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 On February 1, 2011, S. Rodriguez was waiting at a bus stop with her nearly two-year-old son when Daniels approached the bench and gestured to her to move over. Rodriguez moved over with her son and Daniels sat next to them on the bench. Rodriguez s son was crying when Daniels shouted at her that she better stop the child from hollering near her. Rodriguez picked the child up and moved him away from Daniels, but told Daniels to not speak to her child that way. 2 Daniels then stood up and retrieved from her bag a pocket knife, which she opened and swung at Rodriguez. f[***] with me. Daniels yelled at Rodriguez, Don t I will f[***]ing kill you both. Rodriguez then moved away and called police while Daniels continued to shout at her. Daniels was Rodriguez testified at trial that she was afraid going to injure her or her son. When arrived, Daniels was belligerent with the officers. police The police searched Daniels and found the knife in her pocket. ¶4 The State initially charged Daniels by direct complaint with Disorderly Conduct, a class 6 dangerous felony. The State later obtained a supervening indictment, changing the charge to pursuant Aggravated to Arizona Assault, Revised 1204(A)(2) (Supp. 2012). 1 a class Statutes 3 dangerous ( A.R.S. ) felony section Daniels pleaded not guilty. 13- The State alleged Daniels had prior felony convictions for purposes of sentencing enhancement. The State also alleged Daniels had committed the present offense while on probation. ¶5 Prior to trial, Daniels moved the court to allow her to represent herself. determined that At a hearing on the motion, the court Daniels knowingly, voluntarily waived her right to counsel. expressed concerns over Daniels 1 intelligently, and However, the State competency and the court We cite to the current version of the applicable statute because no revisions material to this decision have since occurred. 3 ordered that a Rule 11 evaluation be conducted. After Daniels was declared competent, the court again discussed the waiver of counsel with Daniels and again determined that she knowingly, intelligently, and voluntarily right to counsel. appointed to serve as advisory attorney counsel. However, midway through the trial, Daniels asked that advisory counsel then her Daniels her was waived take over once again as her legal representative. ¶6 Following a six-day trial, a jury found Daniels guilty of Aggravated Assault, a class 3 dangerous felony. On October 14, 2011, the court held a hearing to determine Daniels prior felony convictions and probation status. The State offered court minute entries and a Department of Corrections pen pack to prove Daniels prior convictions and presented expert testimony linking the fingerprints associated with three of the four convictions to current fingerprints taken from Daniels. The minute entry associated with the oldest conviction did not contain a testified current court fingerprint. that Daniels offense. found the Based Daniels was on defendant on probation probation this had at evidence four committed in 1979, 1990, 1992, and 2008. also time of the testimony, the the and prior officer felony convictions The court also found the Defendant was on probation for the 2008 conviction at the time of the current offense. 4 ¶7 On November 1, 2011, the court sentenced Daniels as a category two presumptive repetitive term of offender 11.25 in years the current imprisonment case in to the the Arizona Department of Corrections, with presentence incarceration credit of 273 days. In the probation matter, the court found that Daniels was in violation of her probation and sentenced her to a super-mitigated consecutively term to of her 2 years sentence imprisonment, in the to current be served case, with presentence incarceration credit of 452 days. ¶8 Daniels filed a timely notice of appeal in both matters and the cases have been consolidated in this decision. This Court has jurisdiction pursuant to A.R.S. §§ 13-1204 (Supp. 2012), -4031 (2010), and -4033(A)(1) (2010). DISCUSSION ¶9 Daniels supplemental Amendment articulates brief. Double First, Jeopardy four discernible Daniels rights argues were issues that violated in her when her Fifth she was first charged by direct complaint and then later by supervening indictment. Daniels asserts that this was improper because [t]here was no new discovery or disclosure and [t]he only difference was the name and statute. ¶10 The Double Jeopardy Clauses in the United States and Arizona Constitutions prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the 5 same offense after conviction; and (3) multiple punishments for the same offense. Lemke v. Rayes, 213 Ariz. 232, 236, ¶ 10, 141 P.3d 407, 411 (App. 2006). here. None of these principles apply Daniels was prosecuted only once and received only one sentence for the charged offense. its initial complaint and Although the State dismissed obtained a supervening indictment prior to Daniels preliminary hearing, it was allowed by law to do so. See Segura v. Cunanan, 219 Ariz. 228, 234, ¶ 22, 196 P.3d 831, 837 (App. 2008) ( As an alternative to a preliminary hearing, the obtaining an prosecution indictment may from establish a grand probable jury. ). cause by Therefore, Daniels Double Jeopardy rights were not violated. 2 ¶11 Second, Daniels argues that when the initial complaint was dismissed and preliminary hearing date vacated, she should have been released Procedure 5.1. released [i]f pursuant to Arizona Rule of Criminal Rule 5.1 provides that a defendant shall be a preliminary hearing has not within 10 days of the filing of a complaint. been commenced The State filed its initial complaint on February 3, 2011, and then filed its 2 This court has also received Daniels Motion for Adjusting Sentence and Conviction, filed on May 24, 2013. Daniels appears to again raise the issue of double jeopardy in her motion. We have addressed this issue in this memorandum decision. Daniels also states in her motion, as she does in her supplemental brief, that the victim in her case has a criminal record. As in her brief, this argument is undeveloped and does not constitute a basis for reversal. We therefore deny Daniels Motion for Adjusting Sentence and Conviction. 6 notice and indictment on February 9, 2011, less than ten days after Daniels supervening initial indictment appearance eliminates on a complaint. defendant s preliminary hearing on a prior complaint. 234, ¶ 22, 196 P.3d at 837. the right A to a Segura, 219 Ariz. at Therefore, once the indictment was filed, Daniels was being held on that basis and was no longer entitled to a preliminary hearing on the initial complaint; nor was she entitled to be released when her preliminary hearing date was vacated. ¶12 Third, Daniels challenges the authenticity of the documents admitted into evidence as proof of her prior felony convictions. Daniels claims the prosecutor forged documents, including the pen pack and a photograph associated with her 1992 conviction. evidence All are of the documents the self-authenticating, court certified admitted into documents and Daniels has presented no evidence or credible argument that the documents are forgeries. documents authenticity Further, Daniels did not object to the when they were admitted below. We therefore find no error. ¶13 Fourth, Daniels appears to challenge the sufficiency of the evidence supporting her conviction and assert her actual innocence by claiming that she 7 was wrongfully charged and convicted of aggravated assault. 3 When a defendant challenges the the sufficiency conviction if of the there guilty verdict. is evidence, substantial court will evidence the support to affirm the State v. Guerra, 161 Ariz. 289, 293, 788 P.2d 1185, 1189 (1989) (internal quotations and citation omitted). Substantial evidence is such proof as a reasonable mind would employ to support the conclusion reached. evidence in conviction the and light resolve most favorable all reasonable Id. to We view all sustaining inferences the against Daniels. See id. ¶14 As charged here, a conviction for aggravated assault as a class 3 dangerous felony requires evidence that a defendant intentionally placed another person in reasonable apprehension of imminent physical injury using a deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A)(2) (2010), 13-1204(A)(2) (Supp. 2012). A felony is considered dangerous if it involved the threatening use or exhibition dangerous instrument . . . . of a deadly weapon or A.R.S. § 13-105(13) (Supp. 2012). At trial, the victim testified that Daniels waved a knife at her 3 To the extent that Daniels requests that we review the record for fundamental error with respect to actual innocence we construe it as a challenge to the sufficiency of the evidence and address the two issues together. See Ariz. R. Crim. P. 32.1(h). If, however, Daniels intended to challenge her conviction based on actual innocence, she must do so in a petition for post-conviction relief. See Ariz. R. Crim. P. 32.2(b). 8 and her child and verbally threatened to kill them. The victim also testified that this action made her feel that she and her child were in danger of physical harm. officers testified that found knife Daniels a in evidence at trial. evidence in the when We they arrived pocket, therefore record to Further, Phoenix Police which find support on the was there Daniels scene they admitted into is sufficient conviction for aggravated assault, a class 3 dangerous felony. ¶15 Daniels mentions several other issues in her supplemental brief; however, her arguments are undeveloped and we are unable to ascertain the precise issues she is attempting to raise. We therefore decline to address Daniels remaining arguments. See State v. Cons, 208 Ariz. 409, 416, ¶ 18, 94 P.3d 609, 616 (App. 2004) (declining to address undeveloped argument raised by appellant). ¶16 that Our review of the record reveals a sentencing error favors Daniels. presentence The incarceration superior credit court for the awarded time she Daniels spent incarcerated from her arrest in February 2011 through her trial on the current offense. However, the time was credited against her sentences in both the current case and her probation matter. This is sentences. not allowed when a defendant receives consecutive See State v. Cuen, 158 Ariz. 86, 87-88, 761 P.2d 160, 161-62 (App. 1988) (holding that when consecutive sentences 9 are given, sentencing court presentence time served). may not give double credit for Defendant should have received credit for 178 days served on the probation case, not 452. However, in the absence of an appeal or cross-appeal by the State seeking to correct an illegally lenient sentence, this court does not have jurisdiction to consider that issue. State v. Dawson, 164 Ariz. 278, 282-83, 792 P.2d 741, 745-46 (1990). ¶17 We have considered defense counsel s briefs and examined the record in both matters for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. evidence presented revocation and the permitted by law. in supports sentences the imposed conviction fall and within The probation the ranges Although Daniels chose to represent herself for part of the trial, it is clear from the record that her waiver of counsel was made intelligently and voluntarily. Further, the proceedings were conducted in compliance with her constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶18 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Daniels of the disposition of the appeal and her future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. 10 Daniels has thirty days from the date of this decision in which to proceed, if she desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶19 The conviction and sentence are affirmed. /s/ __________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ _________________________________ JON W. THOMPSON, Judge /s/ _________________________________ DONN KESSLER, Judge 11
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