STATE v. TOM

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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. ) ) ROYSTON JOE TOM, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 6/4/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 11-0902 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-140615-001 The Honorable William L. Brotherton, Jr., Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee Phoenix Natalee Segal Attorney for Appellant Phoenix S W A N N, Judge ¶1 Defendant Royston Joe Tom appeals the sentences received for convictions of two counts of sexual assault. he He contends that the trial court erred by holding his decision not to testify against him when it declined to mitigate his sentence based on the potential for rehabilitation. Though we agree with Tom that the court s comments from the bench did not accurately reflect the law, we nonetheless affirm the sentences because there was no evidence in the record that Tom had any prospect for rehabilitation. FACTS AND PROCEDURAL HISTORY1 ¶2 In kidnapping, assault. 1999, Tom aggravated was indicted assault, on armed counts robbery, including and sexual The state filed a motion to dismiss the indictment because it could not locate the victims. court 22 granted the state s motion to In 2000, the trial dismiss the indictment without prejudice. ¶3 In 2010, Phoenix Police Department located three of the victims from the 1999 indictment. The state issued a second indictment charging Tom with six counts of sexual assault, a class 2 felony (Counts 1-6).2 After a ten-day trial, a jury 1 We view the facts in the light most favorable to sustaining the convictions. State v. Musgrove, 223 Ariz. 164, 166, ¶ 2, 221 P.3d 43, 45 (App. 2009). 2 Tom was indicted for Count 1: intentionally or knowingly, engag[ing] in sexual intercourse or oral sexual contact with [J.K.], without the consent of [J.K.], (to wit: oral/penile) ; Count 2: intentionally or knowingly, engag[ing] in sexual intercourse or sexual contact with [J.K.], without the consent of [J.K.], (to wit: masturbatory contact) ; Count 3: intentionally or knowingly, engag[ing] in sexual intercourse or oral sexual contact with [J.K.]., without the consent of [J.K.], 2 convicted Tom of Counts 4 and 6. The jury found two aggravating factors: (1) The offense involved the infliction or threatened infliction of serious physical injury ; and (2) The offense caused physical, emotional or financial harm to the victim or if the victim dies as a result of the conduct of the Defendant, caused emotional or financial harm to the victim s immediate family. ¶4 At sentencing, defense counsel argued that the court should find rehabilitation to be a mitigating factor for the purposes of sentencing because Tom is amenable to rehabilitation again although he is maintaining his innocence. The trial court responded by stating: So how does rehabilitation work in that, the typical rehabilitation is someone says: I have done something wrong and I - but I can change and I can be better. Right now the fact pattern I see would be: I have not done anything wrong. There is going to be nothing to rehabilitate. So I m a little confused on that aspect as a mitigator of -- because your position is that basically he has done nothing wrong, so there is really nothing to rehabilitate . . . . . . . . The Court has also circumstances . . . . considered the mitigating (to wit: penile/vaginal, first time) ; Count 4: intentionally or knowingly, engag[ing] in sexual intercourse or oral sexual contact with [J.K], without the consent of [J.K.], (to wit: penile/vaginal, second time) ; Count 5: intentionally or knowingly, engag[ing] in sexual intercourse or oral sexual contact with [W.C], without the consent of [W.C] ; and Count 6: intentionally or knowingly, engag[ing] in sexual intercourse or oral sexual contact with [K.D.], without the consent of [K.D.]. 3 And the issue of rehabilitation, that one doesn t make any sense to me because at least from the standpoint of the defendant, the defendant has taken the position that he has done nothing wrong, so I don t see anything to be rehabilitated. The court found two mitigating factors for each count, recognized that the jury had found two aggravating factors for each count, and found that the aggravating circumstances are sufficiently substantial to warrant an aggravated sentence. Consequently, the court sentenced Tom to an aggravated prison term of ten years for Count 4 and an aggravated prison term of ten years for Count 6 to be served consecutively to the sentence for Count 4. ¶5 Tom timely appeals his sentence. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A), 13-4031 and 13-4033. STANDARD OF REVIEW ¶6 court, Because sentencing is the responsibility of the trial we will not alter the trial court s determination absent an abuse of discretion. sentencing State v. Mincey, 141 Ariz. 425, 445, 687 P.2d 1180, 1200 (1984). An abuse of discretion is characterized by capriciousness or arbitrariness or by a failure to conduct an adequate investigation into the facts necessary for sentencing power. an intelligent exercise of the court s State v. Ethington, 121 Ariz. 572, 574, 592 P.2d 768, 770 (1979). Further, [t]he existence of a single 4 aggravating factor exposes a defendant to an aggravated sentence and permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute. State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 115 P.3d 618, 625 (2005). DISCUSSION ¶7 Tom contends that the trial court violated his right to remain silent. U.S. Const. amend. V; State v. Trujillo, 227 Ariz. ¶ 15, 314, 318, 257 P.3d 1194, 1198 (App. 2011). Specifically, Tom argues that the trial court refused to find that rehabilitation was a mitigating factor because he did not testify at the sentencing hearing. Tom relies on State v. Burgess, which held that the court may not constitutionally draw a negative inference silence at sentencing. of lack of remorse from a defendant s 943 A.2d 727, 736-37 (N.H. 2008). ¶8 Burgess is inapposite. The issue there was lack of remorse; the prospect issue here is the for rehabilitation. More on point is the holding of DiGiovanni v. United States, 596 F.2d 74, 75 (2d Cir. 1979): [W]hile it is true that a defendant s lack of desire for rehabilitation may properly be considered in imposing sentence, to permit the sentencing judge to infer such lack of desire from a defendant's refusal to provide testimony would leave little force to the rule that a defendant may not be punished for exercising his right to remain silent. Moreover, we question how much a refusal to 5 testify indicates an absence of rehabilitative desire, given that defendants often provide such testimony simply to get back at their former associates or to obtain a better deal from the Government. In any event, refusal to testify, particularly in narcotics cases, is more likely to be the result of well-founded fears of reprisal to the witness or his family. (Emphasis added.) ¶9 The trial court s implication that a defendant who does not admit responsibility is automatically ineligible for a reduced sentence based on his potential for rehabilitation was therefore an incorrect statement of law. On the record before us, however, we find no error in the court's decision. Tom presented no evidence that he was amenable to rehabilitation the issue was rehabilitation only was a raised when counsel possibility. Counsel suggested pointed that to no evidence to support the suggestion, and we have found none. On these facts, we interpret the trial court s statement to refer to the complete absence of evidence of rehabilitative potential, not an adverse inference drawn from Tom s decision not to testify. ¶10 Moreover, factors. the jury properly two aggravating The trial court therefore had lawful discretion to impose an aggravated sentence. that found Tom s purported And even if the court had found ability 6 to be rehabilitated was a mitigating factor, it would not have been an abuse of discretion to impose an aggravated sentence. ¶11 We conclude that the trial court s sentencing of Tom was neither arbitrary nor capricious, and the court did not fail to conduct an adequate investigation into the facts necessary for it to exercise its sentencing power properly. CONCLUSION ¶12 For the foregoing reasons, we affirm. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ____________________________________ LAWRENCE F. WINTHROP, Chief Judge 7

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