State v. Puccini ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GUIDO JESUS PUCCINI, Appellant.
No. 1 CA-CR 15-0238
FILED 12-24-2015
Appeal from the Superior Court in Maricopa County
No. CR 1992-092552
The Honorable Teresa A. Sanders, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
STATE v. PUCCINI
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
G O U L D, Judge:
¶1 Guido Jesus Puccini (“Defendant”) appeals from his
conviction and sentence for one count kidnapping and one count attempted
sexual conduct with a minor. Defendant’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), advising this Court that after a search of the entire
appellate record, no arguable ground exists for reversal. Defendant was
granted leave to file a supplemental brief in propria persona, and did not do
so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). 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), 13-4031 and 13-4033(A)(1) (West 2015).1 Finding no reversible
error, we affirm.
Facts and Procedural History2
¶3 In September, 1992, Defendant walked into the kitchen where
the nine-year-old Victim was washing dishes. After threatening to take her
to Argentina where she would never see her mother again, Defendant
removed her clothes, covered her mouth, and attempted to insert his penis
into her vagina. At that moment, Victim’s mother walked into the kitchen
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
2 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).
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STATE v. PUCCINI
Decision of the Court
and saw Defendant attempting to rape Victim. Mother confronted
Defendant. He left the home, and Mother called the police to report the
crime.
¶4 The officer investigating the crime interviewed both Victim’s
mother and her aunt. Mother described what she witnessed when she
walked into the kitchen and found Defendant with Victim. The aunt stated
that Victim had told her about the attempted rape the night after the
incident. The details Victim provided to her aunt fully corroborated
Mother’s statement to the police.
¶5 Victim was interviewed by Detective M., of the Mesa Police
Department, and Dr. DeHaven, a medical doctor who conducted her
examination. In both interviews, Victim disclosed that Defendant had
attempted to molest her and had been doing so for the last few months.
¶6 Detective M. also interviewed Defendant, and, after advising
him of his Miranda rights, Defendant confessed to both the attempted rape,
and other sexual conduct he had committed against Victim over the past
few months. Defendant was arrested and later released. Defendant’s
release order advised him he had the right to be present at his trial, and that
if he failed to appear at trial, the trial would proceed in his absence.
Defendant was present at his pretrial conference where the court affirmed
his December 16, 1992 trial date.
¶7 Defendant failed to appear for his December 16, 1992 trial,
and a bench warrant was issued for his arrest. The State requested, and was
granted, a trial in absentia. At the start of the trial, prior to jury selection,
the Court conducted a voluntariness hearing and concluded the statements
made by Defendant to the police were voluntary.
¶8 At the end of the State’s case, the Court granted defense
counsel’s motion for judgment of acquittal on count 4, child molestation.
The jury returned verdicts of guilty on count 1, kidnapping, and count 2,
attempted sexual conduct with a minor. Defendant was found not guilty
of count 3, child molestation.
¶9 Defendant remained on bench warrant status until he was
arrested in late 2014 in Florida. Defendant was taken into custody by the
Arizona authorities and booked into jail on January 14, 2015.
¶10 On March 23, 2015, the court sentenced Defendant to 12 years
in prison, the minimum term, for count 1, kidnapping, and awarded
Defendant 84 days’ credit for time served. As for count 2, attempted sexual
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STATE v. PUCCINI
Decision of the Court
conduct with a minor, the court sentenced Defendant to a term of lifetime
probation, to be served consecutively to his prison term on count 1.
Defendant filed a timely Notice of Appeal.
¶11 In May 2015, the court reporter responsible for transcribing
Defendant’s trial informed this court she had destroyed her notes of trial
proceedings held on February 3, February 4, February 8, and February 9,
1993. We ordered a stay of the appeal and remanded the case to the
superior court to reconstruct the record. The superior court complied, and
issued a minute entry reflecting its reconstruction of the record.
Discussion
¶12 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the finding of guilt. Defendant was represented by counsel at
all critical stages of the proceedings. At sentencing, Defendant and his
counsel were given an opportunity to speak and the court imposed a legal
sentence.
¶13 We find no error regarding Defendant’s trial in absentia. A
defendant has a due process right to be present at all criminal proceedings,
including trial; however, he may waive that right by voluntarily failing to
appear. State v. Holm, 195 Ariz. 42, 43 ¶ 2 (App. 1998); Ariz. R. Crim. P. 9.1.
A court may infer a defendant voluntarily waived his presence at trial if he
had personal notice of (1) the date and time of trial, (2) his right to be
present, and (3) a warning the trial will go forward in his absence should
he fail to appear. Ariz. R. Crim. P. 9.1; State v. Sainz, 186 Ariz. 470, 477-78
(App. 1996). For the purpose of showing a voluntary waiver, a statement
in a release order signed by a defendant advising him as to his right to be
present and warning him trial will proceed in his absence is sufficient. State
v. Pena, 25 Ariz. App. 80, 81 (1975).
¶14 Here, Defendant signed a release order advising him of his
right to be present at trial and warning him that should he fail to appear
trial would go forward in his absence. Defendant was advised in person
about his trial date. While the trial was later continued, there is no evidence
in the record available to us that Defendant tried to contact his attorney
about his trial date or that his absence from the state was involuntary. See
State ex rel. Romley v. Superior Court, 183 Ariz. 139, 144-45 (App. 1995)
(holding a defendant may voluntarily absent himself from trial even
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STATE v. PUCCINI
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without actual notice of a continued trial date). Indeed, the record reflects
that Defendant failed to appear at trial, absconded to Florida and remained
at large for over 20 years. Accordingly, Defendant waived his right to
attend his trial. State v. Davis, 108 Ariz. 335, 336 (1972).
¶15 Additionally, we note that the absence of the trial transcripts
in this case does not constitute reversible error. Defendant has not raised
claim of error in this case, and the record available to us, including the
minute entries of the trial, indicates the trial was properly conducted in
accordance with the law and the Rules of Criminal Procedure. Absent some
showing to the contrary, we will presume the missing portions of the record
support Defendant’s convictions and sentences. State v. Zuck, 134 Ariz. 509,
513 (1982). This is particularly the case when the lengthy period of time
between Defendant’s trial and appeal leading to the unavailability of the
trial transcript is the result of Defendant’s unlawfully absconding and
remaining a fugitive for over twenty years. See People v. Iacopelli, 367 N.W.2d
837, 838 (Mich.Ct.App. 1985) (holding defendant not entitled to new trial
where trial transcripts were lost and could not be reconstructed because he
was fugitive for nine years); Bellows v. State, 871 P.2d 340, 343 (Nev. 1994)
(“Because appellant’s absence led to the loss of his trial transcripts, he may
not benefit from his attempt to elude the law.”)
¶16 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 (1984). Defendant shall have 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.
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