State v. Gialamas
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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. ) ) PAUL GIALAMAS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 02/17/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0551 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-108466-001 DT The Honorable Cari A. Harrison, Judge 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 Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix Paul Gialamas Appellant Kingman O R O Z C O, Judge ¶1 Paul Gialamas (Defendant), appeals his conviction and sentence for theft of a means of transportation. 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, he found no arguable question of law that was not frivolous. Defendant also filed a supplemental brief that we address below. ¶2 Our obligation is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 1999). 89, 96 (App. 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), 134031 (2010), -4033.A.3. (2010). Finding no reversible error, we affirm Defendant s conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶3 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, 927 P.2d 804, 805 (App. 1996). Defendant was indicted on one count of theft of means of transportation, a class three felony, in violation of A.R.S. § 2 13-1814 (2010).1 After refusing to be evaluated pursuant to Rule 11, Defendant eventually complied and was found competent to stand trial. ¶4 At trial, the victim testified that in January 2007 his Baja SC50 motorized scooter was stolen. The victim further testified that several weeks after the theft, he saw Defendant sitting on his scooter while waiting at a red light. The victim described his confrontation with Defendant: I was trying to stall him until the cops got there. . . . Just trying to, you know, just talking to him, trying to hold him there until the police got to the scene. ¶5 The victim testified that Defendant tried to sell the scooter back to him and said he was going to get something to eat at the chow line, food line, and that s when he left. With this information, police responded to a nearby church and found Defendant in possession of the scooter. The victim testified that the scooter was damaged: The ignition was broke, the lock steering was busted, the gas lock was busted, the helmet lock was busted, numerous scratches, [and the] handlebars were bent. ¶6 An officer at the scene testified that Defendant, upon being apprehended, stated, I stopped and talked to the guy, asked him if he was the one who owned the scooter. . . . Are you 1 We cite to the current version of applicable statutes when no revisions material to this decision have since occurred. 3 proud of me? I did the right thing and [found] the owner. Another officer testified that Defendant made a statement that he had purchased the bike for $100 from an unknown male. According to the officer, Defendant also stated that he obtained a temporary license plate online. ¶7 Defendant s Defendant so that uncle testified Defendant could that he purchase loaned the $100 to scooter. Defendant s uncle also testified that he asked Defendant, Paul is this thing hot? to which Defendant responded, No, it s not. ¶8 In closing, the State emphasized that a scooter is a means of transportation in the eyes of the law and argued that Defendant knew or had reason to know the scooter in this case was stolen. ¶9 The jury found Defendant guilty. Before sentencing, the State was able to prove that Defendant held two prior felony convictions. See State v. Pennye, 102 Ariz. 207, 208, 427 P.2d 525, 526 (1967) ( When a prior conviction is alleged . . . it is incumbent upon the state to prove: (1) that the defendant in the present case and the one convicted in the prior case are the same individual, and (2) that there was in fact a prior conviction. ). a mitigated sentence of 7.5 years Corrections. 4 in The court imposed the Department of DISCUSSION ¶10 We have read and considered counsel s brief as well as Defendant s supplemental brief. We have carefully searched the entire record for reversible error and have found none. See Leon, was 104 Ariz. represented proceedings. by at 300, counsel 451 at P.2d all at 881. critical Defendant stages of the The proceedings were conducted in compliance with the Rules and substantial evidence supported the jury s verdict of guilt. ¶11 At sentencing, Defendant and his counsel were given an opportunity to speak. The information presented persuaded the trial court to impose a mitigated sentence. However, it appears that the court improperly sentenced Defendant under the laws in effect at the time of sentencing and not those in effect at the time of the offense. See A.R.S. § 1-246 (2002) ( the offender shall be punished under the law in force when the offense was committed ). That is, Defendant was sentenced to 7.5 years -- the mitigated sentence for a class three felony by a repetitive offender under the 2009 version of A.R.S. § 13-703; however, the minimum sentence for a class three felony with two priors under the 2007 statutory scheme is ten years. Compare A.R.S. § 13- 703.J. (2009), with A.R.S. § 13-604.D. (2007). ¶12 Nevertheless, because the State failed to raise this issue on appeal, see State v. Dawson, 164 Ariz. 278, 792 P.2d 5 741 (1990), and because Defendant has not successfully challenged his sentence, see State v. Anderson, 171 Ariz. 34, 827 P.2d 1129 (1992), we will not disturb the sentence imposed by the trial court. by the State and That is, in the absence of both an appeal a successful challenge to the sentence by Defendant, errors committed by the trial court at sentencing that favor Defendant will not be disturbed. ¶13 brief; Defendant has raised several issues in a supplemental however, all of them have been inappropriate for this Court to address. review the record for fundamental error. waived or are It is our duty to See Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. ¶14 First, Defendant raises several issues relating to pre-trial procedures prescribed by the Arizona Rules of Criminal Procedure. However, these arguments have been waived because they were not raised before trial. State v. Lee, 25 Ariz. App. 220, 223, 542 P.2d 413, 416 (1975) (Arizona Rule precluding untimely motions, defenses, objections, or requests is far more comprehensive [than its federal counterpart], covering motions which can be made and determined before trial ). All Thus, we decline to address them. ¶15 trial. Second, Defendant argues that he was denied a speedy However, because trial was held within the time limits prescribed by the Arizona Rules 6 of Criminal Procedure, Defendant s argument fails.2 See id. ( [W]here time limits have expired, any objection to the violation of the speedy trial is deemed to be waived unless it is raised at least 20 days before trial. ); see generally Snyder v. Donato, 211 Ariz. 117, 119-20, ¶¶ 8-10, ¶ 14, 118 P.3d 632, 634-35 (App. 2005) (explaining how time is calculated, and if necessary, extended). ¶16 Third, denying his Defendant Defendant motions went for through contends change five of the trial court counsel. lawyers in the We erred note build-up to in that his trial. Thus, the trial court acquiesced to Defendant s request for new a court-appointed ultimately refusing. attorney several times before Defendant continually requested a specific attorney, while portraying a cantankerous attitude towards his actual counsel. While an indigent defendant is entitled to effective assistance of counsel, he has no right to choose the particular attorney who will represent him. State v. Hampton, 208 Ariz. 241, 243, ¶ 6, 92 P.3d 871, 873 (2004); accord State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993). As such, we find no error. 2 We note that Defendant, by repeatedly changing counsel prior to trial and by refusing to be examined pursuant to Rule 11, brought much of the delay upon himself. Defendant s own conduct leading up to trial precludes a finding that he was prejudiced by any delay. Lee, 25 Ariz. App. at 223, 542 P.2d at 416 ( In the absence of a showing of prejudice, we cannot say that this is a denial of appellant's federal constitutional rights. ) 7 ¶17 Fourth, Defendant challenges the decisions of appointed counsel, which we chose to interpret as claims of ineffective assistance of counsel. claims of ineffective first been presented petition for assistance to the post-conviction This court will not consider of court counsel below relief. in State Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). until the v. they form have of Spreitz, a 202 Because no such petition has been filed, we do not address these arguments. ¶18 Fifth, and finally, even though we give considerable leeway to a pro per brief, if it is not clear what Defendant is arguing, that argument is deemed waived. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ( Defendant also raises several issues for which he offers argument insufficient for appellate review. ). Because the remainder of Defendant s supplemental brief is indecipherable, we do not address it. CONCLUSION ¶19 For the reasons set forth above we affirm Defendant s conviction and sentence. Counsel s obligations pertaining to Defendant s representation in this appeal have ended. 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 to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). 8 Defendant has thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.3 /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ _________________________________ MAURICE PORTLEY, Presiding Judge /S/ _________________________________ MARGARET H. DOWNIE, Judge 3 Pursuant to Rule 31.18.b., Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 9
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