State v. Ford
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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JIMMIE LEE FORD, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0114 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-006114-001 DT The Honorable Maria Del Mar Verdin, Judge AFFIRMED IN PART; REVERSED IN PART; REMANDED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Julie A. Done, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Maricopa Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 Jimmie Lee Ford appeals his convictions and sentences imposed after a jury trial. Ford argues the trial court erred by (1) finding that his absence from a portion of the trial was voluntary, and Mississippi reasons, (2) enhancing conviction we affirm for his sentences based manslaughter. Ford s convictions For and on the a prior following sentences on two counts, but reverse his sentences on two counts and remand for further proceedings consistent with this decision. BACKGROUND ¶2 In March Counts 1 and 2, 2008, a grand aggravated jury assault, indicted class Ford three with dangerous felonies; Count 3, possession of narcotic drugs, a class four felony; and felony. Count 4, possession of marijuana, a class six The State alleged as prior convictions, among others, that Ford had previously been convicted in Mississippi of two felonies: possession of a controlled substance and manslaughter. ¶3 The case proceeded to trial on October 28. The next morning, Ford did not appear in court because he had suffered some chest pains that required medical attention. Ford s counsel waived his presence for the morning session, and the court promptly continued the proceeding until that afternoon. Ford attended the afternoon session and was present for the remainder of the day. Upon learning that Ford had missed his scheduled at medications the jail, the court noted that sometimes folks get thrown off schedule because they re being transported or in court all day 2 and requested that the sheriff s receives office his look at medication this as case to necessary, assure even that though he [Ford] is in court. ¶4 At approximately 8:15 a.m. on October 30, the trial court received a telephone call from a sergeant at the jail regarding Ford s transport status. The court summarized the conversation, which took place in the presence of both counsel, as follows: Apparently Mr. Ford indicated that he was not getting dressed for court and he wanted to have his medication given. Mr. Ford was advised that it was not time for his medication to be distributed and he would be given medication at a later time. Mr. Ford refused to get dressed and come to court. The court further noted that it had received information that Mr. Ford indicated that he didn t want to get up in the wee hours; that he wanted to sleep in and that he would come to court at a later time. At about 10:25 a.m., five minutes before trial was scheduled to begin that day, the court learned that Ford was present in the building and wanted to come to court. At that time, however, the sheriff s office did not have a deputy available to transport Ford. selection proceedings that morning The court continued jury without Ford. Ford eventually arrived in time to attend the afternoon session that day and was present for the remainder of the trial. 3 ¶5 The court subsequently found that Ford was untimely transported as a result of his own actions. As the court stated, [T]here is no indication today that Mr. Ford was denied medication. . . . I can t tell the sheriff whether and how to bring his inmates to court. . . . If Mr. Ford chose not to follow that process, that certainly is Mr. Ford s choice. Consequently, the court concluded that Ford s absence on the morning of October 30 was voluntary. ¶6 The Prior to jury ultimately sentencing, the found court Ford guilty conducted a as charged. hearing on the State s allegation of prior convictions, received the State s exhibits in evidence, and found, in part, that the State had proven the following: (1) that Ford was convicted in Mississippi in 2004 of possession of controlled substance, a felony, and (2) that Ford was convicted in Mississippi in 1995 of manslaughter, a dangerous felony. Thereafter, the court sentenced Ford to an aggravated prison term of 18 years each for Counts 1 and 2, a presumptive prison term of 10 years for Count presumptive prison term of 3.75 years for Count 4. further ordered that the sentence for Count 2 3, and a The court be served consecutive to Count 1 and the sentences for Counts 3 and 4 each be served other. consecutive to Count Ford timely appealed. 4 2, but concurrent with each DISCUSSION A. ¶7 Trial in absentia Ford argues he did not voluntarily waive his right to be present at trial, and the trial court committed structural error by Although proceeding Ford with admitted jury he selection technically in his chose absence. not to be transported to court, he nevertheless contends his choice was involuntary because Additionally, Ford he was asserts without the meaningful trial alternatives. court violated his constitutional rights when it proceeded with trial rather than wait for his transport, especially when he had asked to be transported at least an hour before the start of the proceeding. We disagree. ¶8 Due process guarantees a criminal defendant the right to be present at critical stages of trial, but he may waive the right to be present at any proceeding by voluntarily absenting himself. Ariz. R. Crim. P. 9.1; State v. Goldsmith, 112 Ariz. 399, 400, 542 P.2d 1098, 1099 (1975). The court may infer that Ford s absence is voluntary if he had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go absence should he . . . fail to appear. forward in his . . . Ariz. R. Crim. P. 9.1; State v. Tudgay, 128 Ariz. 1, 2, 623 P.2d 360, 361 (1981). We review in the trial court s decision 5 to proceed with trial absentia for an abuse of discretion. State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996). ¶9 Ford does not dispute he was aware of the trial date and that he understood the consequences if he failed to appear for trial. Rather, Ford likens his situation to that of the defendant in State v. Garcia-Contreras, 191 Ariz. 144, 953 P.2d 536 (1998). In that case, the in-custody defendant asked for a continuance to wait for his civilian clothing, which did not arrive in time. Id. at 145, ¶ 1, 953 P.2d at 537. The trial court denied the defendant s request and presented him with a choice to either appear in jail-issued presence at jury selection. Id. clothes or waive his The supreme court held that under the circumstances, the defendant was not given meaningful alternatives, and his choice to be absent was in fact involuntary. Id. at 147, ¶ 11, 953 P.2d at 539. Consequently, the court violated supreme concluded the defendant s constitutional rights. trial court the Id. at 149, ¶ 22, 953 P.2d at 541. ¶10 Contreras, Ford he objectionable argues was that like compelled alternatives the defendant to choose between because he would in Garcia- two equally either have to risk harm to his health by being again transported without his medication[] proceedings. or . . . miss a vital portion of trial The record before us does not reveal that Ford 6 was faced with such a choice. Ford testified that on October 30, 2008, the jail woke him at about 5:00 a.m. he constantly ask[ed] for his Ford stated that medication, despite acknowledging that he normally receives his medication around 8:00 a.m. or later. Ford admitted that he did get his medication that day, but denied that he had refused to get up to come to court. office later At the trial court s request, the sheriff s filed a memorandum stating, in part, that in response to a comment that Ford had refused to come to court, Ford told his transporting officer, didn t want to get up that early. I didn t refuse I just Given this record, we do not discern how Ford risked missing his scheduled medication had he followed the jail transport procedure. This is especially so as he knew the trial court had asked the sheriff s office the prior day to ensure timely provision of Ford s medication. did in fact receive his medication. Indeed, he We therefore reject Ford s contention that he had no meaningful alternatives pursuant to Garcia-Contreras. 1 1 We summarily reject Ford s contention that the trial court erred by not ordering a brief continuance after Ford had indicated he wanted to be transported. Ford cites no authority, and we are not aware of any, that would require the trial court to do so simply because Ford was ready and willing to be transported to court. Moreover, were we to indulge this argument, we would in effect impermissibly allow Ford the ability to dictate the time and manner of his transport. See Arizona Revised Statutes ( A.R.S. ) section 11-441(A)(5) (sheriff has authority to maintain and operate county jails); 7 ¶11 In light of the above record, the trial court acted within its discretion in finding that waived his right to be present at trial. Ford had voluntarily See Ariz. R. Crim. P. 9.1; Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at 1354. It follows that the court s decision to proceed with jury selection on the morning of October 30 in Ford s absence did not violate his due process rights. B. ¶12 his Sentence enhancement based on Mississippi manslaughter conviction Ford next argues the trial court erred by enhancing sentences on Counts 1 and 2 with the manslaughter conviction, a dangerous felony. 1995 Mississippi Specifically, Ford contends that the State s submitted evidence did not specify under which Mississippi statute [Ford] had been convicted, and the trial court failed to make any comparison whatsoever of the relevant Mississippi and Arizona statutes. 2 the State failed to meet its burden of Thus, Ford argues proving (1) the Trombi v. Donahoe, 223 Ariz. 261, 267, ¶¶ 23-24, 222 P.3d 284, 290 (App. 2009) (recognizing court s inability to micromanage manner of inmate transport). 2 When the State alleges a prior non-Arizona conviction for sentence enhancement purposes, Arizona law requires the trial court to determine whether the foreign conviction established every element that would be required to prove that such offense would be a felony in Arizona . . . by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute. State v. Smith, 219 Ariz. 132, 134, ¶ 10, 194 P.3d 399, 401 (2008) (citations omitted). 8 Mississippi manslaughter conviction would have been punishable as a class one, two, or three felony if committed in Arizona, and (2) the dangerous nature of the offense. 3 Ford urges us to vacate and his sentences on Counts 1 and 2 remand for resentencing without the enhancement. ¶13 The State concedes error, but argues the appropriate remedy is to vacate the sentences on Counts 1 and 2 and remand for further proceedings to allow the State an opportunity to produce additional clarifying evidence and to permit the trial court a chance to relevant statutes. ¶14 Ford does make the necessary comparison between the argument or We agree with the State. not raise a double jeopardy point to any authority that would require us to remand this matter for resentencing without the enhancement. Indeed, both the United States Supreme Court and the Arizona Supreme Court have permitted a retrial of a prior conviction allegation when the government had failed to meet its burden of proof. Monge v. California, 524 U.S. 721, 729, 734 (1998); State v. McGuire, 113 Ariz. 372, 375, 555 P.2d 330, 333 (1976); see also State v. McCurdy, 216 Ariz. 567, 574-75, ¶ 19, 169 P.3d 931, 938-39 (App. 3 Pursuant to A.R.S. § 13-704(D) (2010), which consolidated Arizona s prior sentencing enhancement statutes and is substantively applicable in this case, a person who is convicted of a class three dangerous felony shall have his sentence enhanced as provided if he has one historical prior felony conviction that is a class 1, 2, or 3 felony involving a dangerous offense. 9 2007) (remanding for further proceedings when appellate court could not determine precise statute under which the defendant was convicted in California); State v. Rodriguez, 200 Ariz. 105, 106, ¶ 6, 23 P.3d 100, 101 (App. 2001) (holding production of additional evidence to establish prior conviction after remand did not violate double jeopardy principles). Because we cannot determine the precise statute under which Ford was convicted of manslaughter Counts 1 in and Mississippi, 2 and we remand vacate for a Ford s retrial sentences on for the State s affirm Ford s allegation of a prior dangerous felony. CONCLUSION ¶15 For the foregoing reasons, we convictions on Counts 1 4, affirm his sentences on Counts 3 and 4, but reverse his sentences on Counts 1 and 2 and remand for further proceedings consistent with this decision. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Jon W. Thompson, Presiding Judge /s/ Patricia K. Norris, Judge 10
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.
