STATE v. KING

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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. RENETTA KING, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 6/27/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0183 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Coconino County Cause No. S0300CR201000692 The Honorable Joseph J. Lodge, Judge AFFIRMED ________________________________________________________________ Thomas C. Horne, Attorney General By Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Phoenix Coconino County Public Defender Flagstaff By H. Allen Gerhardt Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Renetta King appeals her convictions and sentences imposed for two counts of the sale or transfer of dangerous drugs. For the reasons that follow, we affirm the convictions and sentences. FACTUAL AND PROCEDURAL BACKGROUND ¶2 On appeal, we view the facts favorable to sustaining the verdict. in the light most State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007). ¶3 On June methamphetamine 28, to a 2010, police King sold informant in .67 grams Flagstaff. of King received the money from the informant and directed an 18 yearold, C.A., to deliver the drugs. video by a concealed camera The drug sale was captured on worn by the informant. The transaction was also videotaped by undercover police officers who were parked listening device. nearby monitoring the situation through a Two days later, King sold the informant an additional 1.27 grams of methamphetamine. This transaction was also observed and videotaped by police officers. ¶4 King transfer of was charged dangerous with drugs two counts of the (methamphetamine), sale class or two felonies under Arizona Revised Statutes ( A.R.S ) section 133407(A)(7) (Supp. 2012). 1 At trial, the jury was video, audio, and photographs of both transactions. presented The jury convicted King on both counts and the trial court sentenced King 1 King was charged with a third count for the sale of dangerous drugs committed on August 12, 2010, which was combined with the first two charges for purposes of trial. The jury found King not guilty on this third count. 2 to consecutive five year terms. King timely appeals. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) §§ 12- 120.21(A)(1)(2003) and 13-4033(A)(1)(2010). 2 DISCUSSION ¶5 On appeal King argues that prosecutorial misconduct and structural error require reversal, and, alternatively, that the trial court erred in imposing consecutive sentences. ¶6 King first argues the State committed prosecutorial misconduct when the prosecutor filed a memorandum with the court which cited an unpublished decision. On the second day of trial, the State filed a memorandum as a response to the defense counsel s argument that the State had improperly shifted the burden of proof to the defense. The memorandum discussed several decisions bearing on the issue including an unpublished decision by this court. The motion conceded that this case does not create binding precedent and is a memorandum opinion, however the State felt it was instructive on the issue before the court. ¶7 A defendant seeking reversal of a conviction for prosecutorial misconduct must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the 2 We cite the current version of statutes when no material revisions have occurred since the events in question. 3 misconduct could have affected the jury s denying [the] defendant a fair trial. Ariz. 545, 549, ¶ 7, 250 P.3d verdict, thereby State v. Dixon, 226 1174, 1178 citation omitted and quotations omitted). (2011) (internal In addition, reversal is only required if misconduct is so pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998). ¶8 This incident involving the citation of an unpublished decision does not constitute prosecutorial misconduct requiring reversal. that King provides no legal support for the contention citing a memorandum decision misconduct requiring reversal. constitutes prosecutorial More importantly, because the citation was in a memorandum to the court, it was viewed only by the court and defense counsel. There is no likelihood that it affected the jury s verdict. 3 ¶9 Next, prosecutorial proceeding King argues misconduct without the both because presence structural the of defense prosecutor failed to make an objection. 3 court error began counsel a and trial and the On the morning of the Although we conclude the citation in this case does not constitute prosecutorial misconduct, we note that it remains inappropriate under our rules. Arizona Rule of Criminal Procedure 31.24 states memorandum decisions may be cited for only two reasons: 1) to establish res judicata or similar defenses, and 2) to inform an appellate court of such a decision so that it can decide whether to publish an opinion. See also Ariz. R. Sup. Ct. 111(c). The state did not cite the memorandum decision for either of these reasons. 4 fifth day of trial, the defense counsel was absent when the court was ready to begin. The court convened at 10:10 a.m. With the jury present, the court addressed the prosecutor on the record stating, I understand you ve tried Mr. James on his cell phone several times. The prosecutor responded that she had called the defense counsel but she did not speak to him. At that point, King volunteered that when she had spoken to the defense counsel earlier he had [the time] down for 10:30. The judge commented that although the court calendar had 10:30, he had informed everyone they would begin at 10:00, and apparently . . . at least 14 people . . . got the message. The judge then decided to call the defense counsel from the bench, remarking this might be fun. The judge called defense counsel in the hearing of the jury, and defense counsel told the court he would be right there. After the phone call ended, one of the jurors remarked that the judge should have told defense counsel, love and kisses, to which the judge responded, Yeah, I m a loveand-kisses kind of guy. At 10:14, the court recessed the proceedings until defense counsel arrived. ¶10 A criminal defendant has a right to counsel at all critical stages of the criminal process. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; State v. Moody, 208 Ariz. 424, 445, ¶ 65, 94 P.3d 1119, 1140 (2004). The United States Supreme Court has found constitutional error without any showing of prejudice 5 when counsel assisting the proceeding. (1984). [is] either accused totally during absent, a or critical prevented stage of from the United States v. Chronic, 466 U.S. 648, 659 n.25 Initially, we note that King does not argue, nor does the record show, that she suffered anything approaching a total absence of counsel. State v. McKinney, 185 Ariz. 567, 573, 917 P.2d 1214, 1220 (1996) (holding Rule 609 hearing not a critical stage of trial), superseded by statute on other grounds. Accordingly, King is entitled to a presumption of prejudice only if defense trial. Id. counsel was absent from a critical stage of the A critical stage is one where the substantial rights of the accused may be affected. State v. Conner, 163 Ariz. 97, 104, 786 P.2d 948, 955 (1990) (citations omitted). ¶11 In this case, King was not denied her right to counsel at a critical stage in the criminal process. In fact, the record reflects that the court recessed the proceedings when the court determined that defense counsel would be late. During the defense counsel s absence there was no discussion or activity that affected King s substantial rights. Cf. Conner, 163 Ariz. at 104, 786 P.2d at 955 (concluding presence of defense counsel is required at interrogation prior to the withdrawal of a plea agreement). The short time that defense counsel was absent was not a critical stage of King s trial. See U.S. v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995) (concluding defendant s right to 6 counsel was not violated when his attorney arrived late to a mid-trial conference). The prosecutor did not attempt to persuade the court to continue without defense counsel and she had apparently whereabouts. called defense counsel to inquire about his We do not perceive structural error, fundamental error, or prosecutorial misconduct here. And although we do not find reversible error, we do not approve of a trial court making inappropriate, sarcastic, or disparaging remarks in the presence of the jury about defense counsel and counsel s timeliness. If critical we or constructive comments are deemed necessary, encourage the making of such comments outside the presence of the jury, to avoid any possible prejudice to the defendant. ¶12 Lastly, King argues the court erred in imposing consecutive sentences based on a misunderstanding that A.R.S. § 13-711(A) (2010) consecutively. creates a presumption that sentences run A trial court has broad discretion in sentencing and if the sentence imposed is within the statutory limits, we will not disturb the sentence unless there is a clear abuse of discretion. 1355, 1360 State v. Cameron, 146 Ariz. 210, 215, 704 P.2d (App. 1985). A refusal or failure discretion constitutes an abuse of discretion. to exercise State v. Garza, 192 Ariz. 171, 175, ¶ 16, 962 P.2d 898, 902 (1998). ¶13 memoranda. After trial, King the advocated parties for 7 each concurrent filed sentencing sentences on the charges, while the State requested consecutive sentences. At sentencing, both counsel agreed that the presumptive term for each count of the sale or transfer of dangerous drugs was ten years. See A.R.S. § 13-3407(E). 4 confirmed that regarding the At sentencing, defense counsel concurrent versus consecutive, that [issue] is entirely in the court s discretion. The court proceeded to sentence King to consecutive five year (mitigated) prison terms. ¶14 When multiple sentences of imprisonment are imposed at the same time, A.R.S. § 13-711(A) provides that the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence. It is well settled that this statute does not create a presumption in favor of consecutive sentences. ¶ 10, 962 P.2d at 901. See Garza, 192 Ariz. at 174, Trial judges are presumed to know the law and apply it in making their decisions. State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). failed to raise this issue below fundamental error review on appeal. she has Because King forfeited all but See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). 4 The sentencing chart under A.R.S. § 13-3407(E) (formerly § 13709.03) imposes a minimum sentence of 5 calendar years, a presumptive of 10 calendar years, and a maximum of 15 calendar years for each count. 8 ¶15 King does not argue, nor have we independently found, that any fundamental error occurred in sentencing. The five- year terms for each count are mitigated and within the allowable sentencing range. record to King does not point to any discussion in the suggest discretion in that imposing the court failed consecutive to understand sentences. In its fact, at sentencing, the arguments from counsel made it very clear that the court had the discretion to order the sentences to be served consecutively or concurrently. ¶16 King also points to the court s statement that the infinite wisdom of the State required it to give Miss King twenty years misunderstood in prison as its an discretion. indication This that statement, the court however, was offered as clarification to a witness at the sentencing hearing and does not mean that the court abused or misunderstood its discretion. We note, also, that the court did not follow the recommendation of the State and imposed a more lenient overall sentence than the State requested. Accordingly, this case is distinguishable from those in which the record clearly reveals a misunderstanding of the law. See State v. Stroud, 209 Ariz. 410, 414, ¶¶ 20-21, 103 P.3d 912, 916 (2005) (finding error where court relied on defendant s erroneous statement that consecutive sentences were required); Garza, 192 Ariz. at 174, ¶ 14, 962 P.2d at 902 (finding error where trial court wrongly 9 felt . . . confined by a non-existent presumption ). We accordingly find no abuse of discretion in the imposition of consecutive sentences. CONCLUSION ¶17 For the foregoing reasons, we affirm the convictions and sentences. ______________/S/____________________ JOHN C. GEMMILL, Judge CONCURRING: _______________/S/_________________ PATRICIA K. NORRIS, Presiding Judge _______________/S/_________________ MICHAEL J. BROWN, Judge 10

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