State v. Reed ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CARLTON C. REED, Appellant.
No. 1 CA-CR 18-0685
FILED 6-11-2019
Appeal from the Superior Court in Maricopa County
No. CR2016-134992-001
The Honorable Kathleen H. Mead, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Offices of Stephen L. Duncan, PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
STATE v. REED
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Defendant Carlton C. Reed was given the
opportunity to file a supplemental brief but did not do so. Our obligation
is to review the entire record for reversible error, State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999), viewing the evidence in the light most favorable
to sustaining the conviction and resolving all reasonable inferences against
Reed, State v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 Officers Branum and Callison saw Reed walking down a
poorly-lit street in the direction of their patrol car. When Callison turned
on the car’s spotlight, Reed dropped a white piece of crumpled paper on
the ground. Both officers exited the car; Callison asked Reed for
identification while Branum picked up the paper and began to unfold it,
revealing a “crystal rock substance.” Before Branum could fully open the
paper, Reed moved toward him, slapped the paper from his hands, and
attempted to run away. Branum helped Callison apprehend Reed and then
collected a small amount of white substance that had not fallen from the
paper.
¶3 Reed was indicted for possession or use of dangerous drugs,
a class 4 felony, and tampering with physical evidence, a class six felony.
The State then filed an allegation of historical priors, stating Reed was
convicted of aggravated assault in 2011.
¶4 At the subsequent jury trial, Officer Branum testified about
the events leading to Reed’s arrest and a forensic scientist testified that the
white substance was methamphetamine. Reed also testified, essentially
arguing that he was set up by the officers. According to Reed, Branum
walked down the block and came back with a piece of paper while Callison
entered Reed’s information into the computer. Once he was near the patrol
vehicle, Branum opened the paper, asking Reed “[W]hat is this?” Reed
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STATE v. REED
Decision of the Court
testified that although the paper was not his, Branum’s question scared him
and he “tried to run and escape” because he did not have a good history
with law enforcement and did not want to go to prison.
¶5 The jury found Reed guilty of tampering with physical
evidence but could not reach a verdict as to the possession charge, resulting
in a mistrial on that count. Reed waived his right to counsel and proceeded
pro per during the second trial on the possession charge, which also
resulted in a mistrial. The superior court then dismissed the possession
charge without prejudice and sentenced Reed to the presumptive term of
1.75 years in prison, with 796 days of presentence incarceration credit. Reed
timely appealed.
¶6 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Reed was present
and represented by counsel at all critical stages of the pretrial and trial
proceedings, and Reed waived his right to counsel and chose to represent
himself with the help of advisory counsel at sentencing. See State v. Cuzick,
97 Ariz. 130, 132 (1964) (finding a waiver of counsel remains valid through
sentencing absent a showing the defendant changed his or her mind and
requested counsel). The evidence presented supports the conviction, and
the sentence imposed falls within the range permitted by law.1 As far as
the record reveals, these proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure and Reed’s constitutional and
statutory rights. Therefore, we affirm Reed’s conviction and sentence.
¶7 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Reed of the outcome of this appeal and his future
options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Reed has 30 days
1 Despite not seeking to prove any aggravators at trial, at the
sentencing hearing the State invited the superior court to “consider what
actual mitigation there is in this case versus what those aggravators could
have been,” including the absence of “acceptance of responsibility” and
“[r]emorse.” The State’s invitation was arguably improper because, as a
general rule, a sentencing judge should not consider a defendant’s failure
to accept responsibility or show remorse. See State v. Trujillo, 227 Ariz. 314,
318, 319, ¶¶ 15, 21 (App. 2011) (concluding a court’s consideration of the
defendant’s “lack of remorse and his failure to admit guilt” at sentencing
was reversible error). However, we are confident that no error occurred
because nothing in the record indicates the superior court considered either
of those factors when it imposed Reed’s sentence.
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STATE v. REED
Decision of the Court
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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