State v. Harvey ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSHUA MILES HARVEY, Appellant.
No. 1 CA-CR 18-0207
FILED 6-11-2019
Appeal from the Superior Court in Maricopa County
No. CR 2017-001759-001
The Honorable Annielaurie Van Wie, Judge Pro Tem
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. HARVEY
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 Joshua Harvey 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 convictions and resolving all reasonable inferences against Harvey,
State v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 Early one morning, Officer Frazier and Detective Lopez were
working undercover at a strip club, investigating a complaint about
narcotics in the area. The pair exited the club to find a man in the parking
lot repeatedly yelling out “got that powder,” “got that white,” or “got that
soft”—common slang for cocaine. Frazier approached the man and
exchanged $60 for approximately one gram of white powder. The man
gave Frazier his phone number, told Frazier to call him “Quality,” and
instructed Frazier to contact him if he needed more. Via Facebook, Frazier
used this information to identify the seller as Harvey. Frazier contacted
Harvey later that night and purchased another gram for $40. Several days
later, Frazier and Lopez returned to the strip club and purchased a third
gram from Harvey for $40. Subsequent testing confirmed that the powder
Harvey had sold the officers was cocaine.
¶3 The State charged Harvey with three counts of sale or
transportation of narcotic drugs and one count of manufacture or
distribution, or possession with an intent to distribute an imitation
controlled substance as cocaine, which was later dismissed at trial. A jury
found Harvey guilty. On each count, the jury also found that Harvey
committed the crime for pecuniary gain and while on release for a felony.
Following a trial on Harvey’s historical priors, the superior court found that
the State had proved he was a category 3 offender. The court imposed
slightly aggravated terms of 19.75 years on count three, 18.75 years on count
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STATE v. HARVEY
Decision of the Court
two, and 17.75 years on count one, with presentence incarceration credit of
295 days. Harvey timely appealed.
¶4 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Harvey either waived
his right to be present, was present and representing himself with the
assistance of advisory counsel or was present and represented by counsel
at all critical stages of the proceedings against him. 1 The evidence
presented supports the convictions, and the sentences imposed fall within
the range permitted by law. As far as the record reveals, these proceedings
were conducted in compliance with the Arizona Rules of Criminal
Procedure and Harvey’s constitutional and statutory rights. Therefore, we
affirm Harvey’s convictions and sentences.
¶5 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Harvey of the outcome of this appeal and his
future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Harvey has
30 days 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
1 The superior court accepted Harvey’s waiver of counsel only after a
thorough colloquy. Prompted by his subsequent disruptive conduct,
however, the court attempted to again discuss the matter with Harvey
before finding he had withdrawn his waiver; prior counsel was therefore
reappointed. See Ariz. R. Crim. P. 6.1(e) (“A defendant may withdraw a
waiver of the right to counsel at any time.”). Before trial, and after
reviewing the matter with Harvey, the court found that he knowingly,
intelligently, and voluntarily waived his right to be present. See Ariz. R.
Crim. P. 9.1 (“[A] defendant’s voluntary absence waives the right to be
present at any proceeding.”).
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