State v. Ashmeade ( 2015 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DUANE ASHMEADE, Appellant.
No. 1 CA-CR 14-0158
FILED 5-14-2015
Appeal from the Superior Court in Maricopa County
No. CR 1996-091873
The Honorable Louis A. Araneta, Judge (Retired)
The Honorable M. Scott McCoy, Judge
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
Duane Ashmeade, Kingman
Appellant
STATE v. ASHMEADE
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.
N O R R I S, Judge:
¶1 Duane Ashmeade timely appeals from his convictions and
sentences for four counts of transporting marijuana for sale or transferring
marijuana weighing more than two pounds, class 2 felonies; four counts of
possession of marijuana for sale weighing four pounds or more, class 2
felonies; and one count of use of wire communication or electronic
communication in a drug related transaction, a class 4 felony. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Ashmeade’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search
the record for fundamental error. This court granted counsel’s motion to
allow Ashmeade to file a supplemental brief in propria persona, and
Ashmeade did so. We reject the arguments raised by Ashmeade in his
supplemental brief and, after reviewing the entire available record, find no
fundamental error. Therefore, we affirm Ashmeade’s convictions. We also
affirm his sentences as corrected to eliminate a discrepancy between the
sentencing minute entry and the sentencing court’s oral pronouncement of
sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On June 21, 1996 a grand jury indicted Ashmeade as follows:
possessing and transporting or transferring marijuana on or about June 4,
1996—counts one and two; possessing and transporting or transferring
marijuana on or about June 5, 1996—counts three and four; possessing and
transporting or transferring marijuana on or about June 11, 1996—counts
five and six; possessing and transporting or transferring marijuana on or
about June 13, 1996—counts seven and eight; and unlawful use of a wire or
1We view the facts in the light most favorable to sustaining
the jury’s verdicts and resolve all reasonable inferences against Ashmeade.
See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. ASHMEADE
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electronic communication to facilitate the above counts on or between June
4 and 13, 1996—count nine. The trial court released Ashmeade conditioned
on the posting of a $159,000 secured appearance bond.2 Through a surety,
Ashmeade posted the $159,000 bond on June 28, 1996, and with the trial
court’s permission, returned to his home in New York. Subsequently,
Ashmeade submitted a signed and notarized acknowledgement to the trial
court, and acknowledged his then September 26, 1996 “non-firm” trial date,
and confirmed he was aware he could be tried in absentia if he failed to
appear for trial.
¶3 On September 26, 1996 Ashmeade appeared for his non-firm
trial date. After submitting a second acknowledgement on October 17, 1996
acknowledging that he did not need to appear for his November 8, 1996
non-firm trial date, Ashmeade waived his presence for and did not appear
at that hearing. On December 6, 1996 Ashmeade submitted a third
acknowledgement and acknowledged a non-firm trial date of December 9,
1996 and confirmed he was aware he could be “tried in absentia, should
[he] fail to appear at [his] firm trial date.” On December 9, 1996, having
failed to waive his presence or appear, the trial court issued a bench warrant
for Ashmeade’s arrest, set a bond forfeiture hearing for February 6, 1997,
vacated the non-firm trial date, and set a firm trial date for February 3, 1997.
It also ordered that if Ashmeade failed to appear, trial would “proceed in
absentia.” The trial court sent a copy of its December 9, 1996 minute entry
to Ashmeade. At defense counsel’s request, the trial court rescheduled the
firm trial date to March 10, 1997.
¶4 Subsequently, the trial court ordered defense counsel to send
Ashmeade a registered letter, return receipt requested, and to try to
telephonically contact him to “apprise” him of his new firm trial date, and
that trial would proceed in absentia if he failed to appear. On February 14,
1997 defense counsel filed an affidavit stating he had “sent a registered,
return receipt requested letter to [Ashmeade] advising him of his trial date
and that . . . if he failed to appear he would be tried in absentia.” Defense
counsel also stated “[t]o date we have not received the return receipt back”
and “[i]n the meantime, I have attempted to telephonically reach
[Ashmeade] on a daily basis with no success.” Because the trial court was
2Theproceedings in this case occurred at different times due
to Ashmeade’s fugitive status. Thus, we refer to the court handling matters
until Ashmeade’s apprehension as the “trial court” and the court handling
matters after Ashmeade’s apprehension as the “sentencing court.”
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STATE v. ASHMEADE
Decision of the Court
in trial on an unrelated matter, with the parties’ agreement, it rescheduled
trial for March 11, 1997.
¶5 Ashmeade failed to appear for trial on March 11, 1997. After
being advised by defense counsel that “the last contact his office had with
[Ashmeade] was on or about December 4, 1996,” the trial court found
Ashmeade’s failure to maintain contact with his attorney and failure to
appear demonstrated a knowing, intelligent, and voluntary waiver of his
right to be present for trial and ruled “trial may proceed in his absence”
(“absentia finding”). On March 26, 1997, the jury found Ashmeade guilty
as charged. Based on Ashmeade’s failure to appear, the trial court
reaffirmed the bench warrant for Ashmeade’s arrest and ordered
sentencing to be set upon his appearance in court.
¶6 On March 27, 1997, a different division of the superior court
held a bond forfeiture hearing, and, after finding “no reasonable cause” for
Ashmeade’s failure to appear, forfeited the secured appearance bond and
entered a $159,000 judgment against him, his bonding company, and its
surety. The judgment was satisfied on May 9, 1997. The bond forfeiture
court also sent a copy of its forfeiture hearing minute entry to Ashmeade.
The record does not indicate either the bond forfeiture minute entry or the
December 9, 1996 minute entry sent to Ashmeade, see supra ¶ 3, was
returned as undeliverable.
¶7 On September 24, 2013—over 16 years after his trial in
absentia—Ashmeade was taken into custody after being extradited from
Texas. On January 24, 2014, in response to Ashmeade’s motion challenging
the trial court’s absentia finding, the sentencing court held an evidentiary
hearing to determine whether Ashmeade had been voluntarily absent from
trial.
¶8 At the evidentiary hearing, Ashmeade testified he had been
in constant contact with his bail bondsman in New York and had not
learned about his trial date until after the trial was over. He admitted
signing the first two acknowledgements listing the non-firm trial dates but
denied signing the third, notarized acknowledgement. Ashmeade said he
had never been able to reach his attorney despite calling “thousands of
times,” and after he discovered he had been tried in absentia and convicted,
he stopped trying because he was “scared.” Ashmeade also denied
knowing about the bench warrant until he was apprehended in 2013.
¶9 Michael G., Ashmeade’s friend, also testified at the
evidentiary hearing. He explained he had retained Ashmeade’s attorney
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STATE v. ASHMEADE
Decision of the Court
after Ashmeade had been arrested. Although he only met Ashmeade’s
attorney once, he testified that he went to the attorney’s office five to seven
times because Ashmeade frequently called him to find out his trial date.
Despite paying several visits to the attorney, and calling frequently,
Michael G. denied being told about Ashmeade’s trial date or bench warrant.
After Michael G. testified, and Ashmeade’s counsel made a closing
argument, the sentencing court advised the parties it had found the
testimony of Ashmeade and Michael G. not credible. It explained it would
review the hearing “exhibits” and would let the parties know after
reviewing the documents whether it would need additional evidence
before it could rule on Ashmeade’s motion. As discussed further below,
the record does not clearly reflect which exhibits the sentencing court
actually admitted into evidence. See infra ¶ 23.
¶10 On January 30, 2014 the sentencing court denied Ashmeade’s
motion, found his absence from trial voluntary, and affirmed his
convictions. See infra ¶ 12. Before the sentencing hearing, the State
submitted a sentencing memorandum and argued that although Ashmeade
had been “convicted of all eight drug offenses, these charges [were] from
only four separate offenses as there [were] two felony charges, each with a
different legal theory, for each date of offense” and thus “the counts with
the same date of offense must run concurrently to each other . . . .” See
generally Ariz. Rev. Stat. (“A.R.S.”) § 13-116 (2010).3 At the sentencing
hearing, as we discuss in more detail below, the court sentenced Ashmeade
to five years’ imprisonment on counts one through eight, and to two and a
half years on count nine, with all sentences to run concurrently. It also
ordered Ashmeade to pay $1,810.49 in extradition costs. The sentencing
court awarded Ashmeade 276 days of presentence incarceration credit
against each of the nine counts.
DISCUSSION
I. Supplemental Brief
¶11 In his supplemental brief, Ashmeade argues the trial court
violated his due process rights by conducting the trial in his absence. He
also accuses the State of contributing to the violation of his due process
3The Arizona Legislature enacted A.R.S. § 13-116 in 1978 and
enacted A.R.S. § 12-2234, see infra ¶ 20, in 1994 and has not amended either
statute. Thus, we cite to the current versions of these statutes.
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STATE v. ASHMEADE
Decision of the Court
rights by failing to exhaust “all options” to ensure his presence at trial.
Neither argument has any merit.
¶12 It was Ashmeade’s obligation to be present at trial, and, at the
evidentiary hearing, he bore the burden of overcoming the inference his
absence was voluntary. See Ariz. R. Crim. P. 9.1; State v. Sainz, 186 Ariz.
470, 473 n.2, 924 P.2d 474, 477 n.2 (App. 1996). In finding Ashmeade’s
absence from trial voluntary, the sentencing court recited some of the
“fantastic details” Ashmeade offered during his testimony at the
evidentiary hearing:
 Someone with unknown motive forged
Defendant’s signature on [his third
acknowledgement] but not [the first and second
acknowledgements] and found a notary in New
York who did not require the forger to present
identification.
 Defendant’s bondsman, who he says checked
on him every week, failed to inform or remind
Defendant of his court dates and did not know
about Defendant’s bench warrant or trial date.
 Defendant did not receive his attorney’s
certified mail letter in February 1997 addressed
to him in New York, even though he admittedly
received letters from counsel there at least twice
previously.
 Defendant’s bondsman knew where he was at
all relevant times and did not surrender him in
Maricopa County even after learning Defendant
had been convicted, instead choosing to pay,
after not appealing, a $159,000 judgment.
¶13 Based on the record before it, the sentencing court did not
abuse its discretion in rejecting Ashmeade’s excuses for being absent from
trial and in finding his absence voluntary. See State v. Holm, 195 Ariz. 42,
43, ¶ 2, 985 P.2d 527, 528 (App. 1998), disapproved in part on other grounds,
State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001) (appellate court will not
upset superior court’s finding of voluntary absence from trial absent abuse
of discretion). Further, because Ashmeade was obligated to appear at trial,
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STATE v. ASHMEADE
Decision of the Court
the State was under no obligation to exhaust “all options” to ensure his trial
attendance.
¶14 Ashmeade also argues he failed to appear for trial because of
a communication breakdown with his counsel. The record before the
sentencing court, however, reflects trial counsel made several efforts to
contact him. See supra ¶ 4.
¶15 Next, Ashmeade argues the trial court violated his due
process rights because transcripts of the trial proceedings are not available.
The record before us reflects the court reporters who were present at his
trial were not able to transcribe the proceedings because—due to the
passage of time—they no longer had their trial notes. The passage of time
rests squarely on Ashmeade. Cf. State v. Masters, 108 Ariz. 189, 192, 494 P.2d
1319, 1322 (1972) (new trial warranted where transcripts were unavailable
“through no fault of the defendant”). Although, according to Ashmeade,
he learned “about 17 years ago” that the trial had gone forward and he had
been convicted, he took no action to challenge the trial, his convictions, or
the trial court’s finding that he had failed to appear at trial voluntarily.
¶16 Even though he was tried in absentia, Ashmeade has a
constitutional right to appeal, Ariz. Const. art. 2, § 24, and although that
right includes the right to a complete trial record, the absence of such a
record does not per se require a new trial. See Masters, 108 Ariz. at 192, 494
P.2d at 1322 (absent showing of reversible error or credible and unmet
allegation of reversible error, remaining record suffices to support verdict
and judgment by trial court). Thus, although incomplete, we must assume
the record supports the judgment absent a credible and unmet allegation of
reversible error. See State v. Scott, 187 Ariz. 474, 476, 930 P.2d 551, 553 (App.
1996). Ashmeade does not make a “credible and unmet allegation of
reversible error” but instead only argues that he has been deprived of his
due process rights because the trial transcript is not available.
¶17 Further, the available record on appeal reflects the trial court
conducted the trial properly and in accordance with the law and the
Arizona Rules of Criminal Procedure. The record also contains audio and
video recordings which support Ashmeade’s convictions. Thus,
Ashmeade’s due process rights were not violated by the unavailability of
trial transcripts.
¶18 Relatedly, Ashmeade argues his due process rights were
violated when the evidentiary hearing court reporter took 11 months to
produce the transcript for that hearing. Assuming without deciding that a
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STATE v. ASHMEADE
Decision of the Court
delay in transmitting transcripts to an appellate court may violate a
defendant’s due process rights, we nevertheless reject Ashmeade’s
argument. Because we are affirming his convictions and sentences, the 11
month delay did not cause him any prejudice.
¶19 Ashmeade further argues his trial counsel was ineffective
because he submitted Ashmeade’s signed and notarized
acknowledgements to the trial court without his consent. He also argues
his counsel at the evidentiary hearing was ineffective because he did not
object to the State’s introduction of trial counsel’s affidavit as inadmissible
hearsay. These arguments are not properly before us. See State ex rel.
Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007)
(“defendant may bring ineffective assistance of counsel claims only in a Rule
32 post-conviction proceeding—not before trial, at trial, or on direct
review”).
¶20 Next, Ashmeade argues his trial counsel disclosed attorney-
client privileged information to the trial court when counsel informed the
court of his efforts to contact Ashmeade. Privileged communications are
governed by A.R.S. § 12-2234 (2003), which provides that an attorney shall
not “be examined as to any communication made by the client to him, or
his advice given thereon in the course of professional employment” without
his client’s consent. Ashmeade’s counsel’s statements to the trial court did
not reveal confidential attorney-client information. The record reflects
defense counsel merely advised the court of his attempts to reach Ashmeade
and, thus, the privilege does not apply. See Granger v. Wisner, 134 Ariz. 377,
379-80, 656 P.2d 1238, 1240-41 (1982) (privilege “does not extend to facts
which are not part of the communication” such as dates and number of
contacts between attorney and client).
¶21 Ashmeade also argues the trial court violated his right to his
“attorney of choice” when it allowed an attorney, other than the one
Ashmeade had retained, to appear on his behalf. The record reflects that
on January 31, 1997, an attorney from the same law firm as the original
attorney retained by Ashmeade appeared on Ashmeade’s behalf and then
represented him through trial. Although a defendant is entitled to the
retained counsel of his choosing, that right is not absolute. See State v.
Coghill, 216 Ariz. 578, 588, 169 P.3d 942, 952 (App. 2007). Courts are given
“wide latitude in balancing the right to counsel of choice against the needs
of the criminal justice system to fairness, court efficiency, and high ethical
standards.” Id. (internal quotation marks omitted). The record before us
reflects that substitute counsel actively litigated the matter, filed
appropriate motions challenging the admission of evidence, and fully
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STATE v. ASHMEADE
Decision of the Court
participated at trial. The record reflects no prejudice to Ashmeade caused
by the substitution of counsel.
¶22 Ashmeade also argues the sentencing court at the evidentiary
hearing violated his right to confront and cross-examine the State’s
witnesses—his retained and substitute trial counsel—when it allowed the
State to introduce defense counsel’s February 14, 1997 affidavit describing
his pretrial attempts to contact Ashmeade, see supra ¶ 4, without affording
Ashmeade the opportunity to cross-examine him. See State v. Parker, 231
Ariz. 391, 402, ¶ 38, 296 P.3d 54, 65 (2013) (Confrontation Clause “bars
admission of out of court testimonial evidence,” such as affidavits, “unless
the defendant has had an opportunity to cross-examine the declarant.”).
¶23 First, it is not clear to us whether the sentencing court
admitted the February 14, 1997 affidavit into evidence. The evidentiary
hearing minute entry reflects that the affidavit was admitted into evidence,
however, neither the exhibit list nor the actual affidavit exhibit show that it
was. Nevertheless, the colloquy between the court and defense counsel
suggests counsel had no objection to the admission of the affidavit:
Court: Any objection to [the affidavit],
[counsel]?
Counsel: No. [It’s] admissible. I mean, there’s
proper foundation. It’s just that there hasn’t—I
mean [it’s] part of the file.
¶24 Second, even if we assume the sentencing court improperly
admitted the affidavit, given the lack of any objection to its admission, we
review only for fundamental error. See State v. Henderson, 210 Ariz. 561,
567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005) (“To prevail under this
standard of review, a defendant must establish both that fundamental error
exists and that the error in his case caused him prejudice.”). The sentencing
court’s ruling does not reflect that it considered the affidavit when it found
Ashmeade’s absence voluntary. See supra ¶ 12. Therefore, Ashmeade has
not established either fundamental error or prejudice.
¶25 Ashmeade also argues the trial court should have granted the
State’s 2008 motion requesting the court dismiss the proceeding without
prejudice. We review the trial court’s denial of the State’s motion to dismiss
for an abuse of discretion. See State v. Huffman, 222 Ariz. 416, 419, ¶ 5, 215
P.3d 390, 393 (2009). The trial court denied the motion, finding “no good
cause appearing.” Given that the jury had convicted Ashmeade years
earlier, the trial court did not abuse its discretion in denying the motion.
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STATE v. ASHMEADE
Decision of the Court
¶26 Finally, Ashmeade argues the sentencing court should have
awarded him presentence incarceration credit for the time he spent in
custody on charges filed against him in Texas. As a matter of law,
Ashmeade was not entitled to any credit for that time. See State v.
Bridgeforth, 156 Ariz. 58, 59, 750 P.2d 1, 2 (App. 1986) (“Credit may only be
awarded for time actually spent in custody pursuant to the offense.”).
II. Anders Review
¶27 We have reviewed the entire available record for reversible
error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Ashmeade
received a fair trial. He was represented by counsel at all stages of the
proceedings, and was present during the evidentiary hearing and
sentencing, after having voluntarily absented himself from trial.
¶28 The available record reflects the evidence presented at trial
was substantial and supports the verdicts. The jury was properly
comprised of 12 members, and the trial court properly instructed the jury
on the elements of the charges, Ashmeade’s presumption of innocence, the
State’s burden of proof, and the necessity of a unanimous verdict. The
sentencing court received and considered a presentence report and gave
Ashmeade an opportunity to speak at sentencing, and he did so, and his
sentences were within the range of acceptable sentences for his offenses.
¶29 We note, however, a discrepancy between the sentencing
court’s minute entry and its oral pronouncement of sentence. Before the
sentencing hearing, the State submitted its sentencing memorandum to the
court, see supra ¶ 10, and argued Ashmeade “must be sentenced pursuant
to A.R.S. § 13-3419(A)(4)” because the first eight counts constituted four
separate offenses. At the sentencing hearing, the State reiterated its
argument that A.R.S. § 13-3419(A)(4) (1996) governed Ashmeade’s
sentencing beginning with the “third date of offense”—count five. The
sentencing court responded, “[t]hat’s my understanding as well.”4 The
4Although the sentencing court imposed sentences on counts
three, four, and nine pursuant to A.R.S. § 13-701, we note that section
3419(A)(4) was the appropriate sentencing statute for those counts. See State
v. Dominguez, 192 Ariz. 461, 464, ¶ 8, 967 P.2d 136, 139 (App. 1998) (A.R.S. §
13-3419 is “the exclusive sentencing provision for multiple drug offenses
not committed on the same occasion but consolidated for trial.”). The
“presumptive term” under A.R.S. § 13-3419(A)(4) was seven years’
imprisonment for counts three and four, and three years’ imprisonment for
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STATE v. ASHMEADE
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sentencing minute entry, however, fails to reference A.R.S. § 13-3419(A)(4).
Thus, we correct the sentencing minute entry to eliminate references to
A.R.S. §§ 13-701 and -702 for counts three through nine and replace those
references with A.R.S. § 13-3419(A)(4).
CONCLUSION
¶30 We decline to order briefing and affirm Ashmeade’s
convictions and sentences as corrected.
¶31 After the filing of this decision, defense counsel’s obligations
pertaining to Ashmeade’s representation in this appeal have ended.
Defense counsel need do no more than inform Ashmeade of the outcome of
this appeal and his future options, unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984).
¶32 Ashmeade has 30 days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant Ashmeade 30 days from the date of this
decision to file an in propria persona motion for reconsideration.
:ama
count nine. We will not, however, “correct sentencing errors that benefit a
defendant, in the context of his own appeal, absent a proper appeal or cross-
appeal by the state.” State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848
(1990).
11