State v. Buckley ( 2014 )

NOTICE: NOT FOR PUBLICATION.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.
JACQUELIN QUIN BUCKLEY, Appellant.
No. 1 CA-CR 13-0642
FILED 08-19-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-162079-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Kimerer & Derrick, P.C., Phoenix
By Clark L. Derrick, Rhonda Elaine Neff
Counsel for Appellant
STATE v. BUCKLEY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Randall M. Howe joined.
T H U M M A, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Jacquelin Quin Buckley has advised the court that, after searching the entire
record, they found no arguable question of law and ask this court to
conduct an Anders review of the record. Buckley was given the opportunity
to file a pro se supplemental brief, but has not done so. This court has
reviewed the record and has found no reversible error. Accordingly,
Buckley’s convictions and resulting sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 In December 2011, A.R.2 saw Buckley attempting to break into
a residence in a retirement community in Glendale. A.R., who worked for
the retirement community, notified her supervisor J.C. and residence
manager C.S., who called 911. J.C. and retirement community security
officer W.F. approached Buckley and told her to stop. When Buckley
refused to do so, W.F. began chasing Buckley and yelling at her to stop;
Buckley, however, did not stop and attempted to run away. W.F. grabbed
Buckley by the arm and took her to the ground. Buckley continued to try to
get away, including yelling at W.F. to get off of her, grabbing him in the
genitals and wielding a screwdriver toward him. W.F. continued to hold
Buckley until police officers arrived, who then handcuffed Buckley and
took her into custody.
1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation
omitted).
2Initials are used to protect the identity of victims and witnesses. See State v.
Maldonado, 206 Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).
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STATE v. BUCKLEY
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¶3 After taking Buckley into custody, the police located a
screwdriver next to a tree where W.F. had been holding Buckley. The police
also located a pair of gloves that they believed belonged to Buckley. They
also identified what appeared to be a pry mark on the door of the residence
where A.R. had seen Buckley trying to break in. M.C. testified that the
screen door to the residence was broken.
¶4 The State charged Buckley with four Counts: (1) attempt to
commit burglary in the second degree, a Class 4 felony; (2) possession of
burglary tools (alleged to be “a screwdriver and/or gloves and/or a
bandana”), a Class 6 felony; (3) aggravated assault, a Class 3 dangerous
felony and (4) assault, a Class 3 misdemeanor. The State timely alleged
Buckley had prior felony convictions on various dates, including for
burglary and theft, and alleged aggravating circumstances other than prior
felony convictions. The State requested a hearing pursuant to Arizona Rule
of Evidence 609 regarding impeachment of Buckley with her prior
convictions if she elected to testify at trial. The superior court ruled the State
could use a sanitized version of Buckley’s prior felony convictions for
impeachment if Buckley testified and made appropriate findings under
Rule 609. Buckley was fully informed of the penalties if convicted and of a
plea agreement offered to her pursuant to State v. Donald, 198 Ariz. 406, 10
P.3d 1193 (App. 2000), and she rejected the plea offer.
¶5 Trial was held in July 2013 and lasted parts of four days.
During trial, the State offered testimony from A.R., C.S., W.F. and the owner
of the residence as well as an investigating police officer. After the State
rested, Buckley moved for a judgment of acquittal pursuant to Arizona Rule
of Criminal Procedure 20 on Counts 1, 3 and 4. Based on the testimony
provided, the superior court granted the motion as to the bandana
allegation for Count 2 and denied the motion in all other respects. Buckley
did not testify at trial, as is her right, and she called no trial witnesses.
¶6 After the jury was instructed on the law, and heard arguments
of counsel, they deliberated and found Buckley guilty of Counts 1, 2 and 4
and not guilty of Count 3. The jury was polled and each juror answered
individually that these were their true verdicts. Following an aggravation
phase, the jury found the State had proven three statutory aggravating
factors. The jury was polled and each juror answered individually that
these were their true verdicts. Buckley was then taken into custody pending
sentencing.
¶7 After an evidentiary hearing on Buckley’s prior felony
convictions, the superior court found that the State proved Buckley had
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STATE v. BUCKLEY
Decision of the Court
three prior felony convictions, one of which was historical for purposes of
sentencing. See Arizona Revised Statute (A.R.S.) section 13-105(22)(d)
(2014).3 After considering the record and argument, the superior court
sentenced Buckley to concurrent, presumptive prison terms of 4.5 years on
Count 1 and 1.75 years on Count 2, with appropriate presentence
incarceration credit, and credit for time served on Count 4. Buckley timely
appealed her convictions and sentences. This court has jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶8 This court has reviewed and considered counsel’s brief and
has searched the entire record for reversible error. See State v. Clark, 196
Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999). Searching the record and brief
reveals no reversible error. The record shows that Buckley was represented
by counsel at all stages of the proceedings and counsel was present at all
critical stages. The record also indicates that Buckley knowingly,
voluntarily and intelligently rejected the State’s plea offer and proceeded to
trial fully aware of the consequences (including possible sentences) she
could receive if found guilty. The evidence admitted at trial constitutes
substantial evidence supporting Buckley’s convictions. From the record, all
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure, and the sentences imposed were within statutory
limits and permissible ranges.
¶9 Buckley’s counsel lists ten potential issues that “were
explored and researched by counsel in a futile search for arguable questions
of law.” Addressing those issues in turn, the record supports the superior
court’s denial of Buckley’s motion for judgment of acquittal. See Ariz. R.
Crim. P. 20(a). “[T]he proper number of priors” discussed during plea
negotiations and a settlement conference is unclear. The record, however,
indicates Buckley had more than three felony convictions, and if four were
proven, those convictions would have meant Buckley could have been
sentenced as having at least two historical prior felony convictions. See
A.R.S. §§ 13-105(22)(d), -703. Because Buckley did not testify, any concerns
about her being impeached by prior convictions under Arizona Rule of
Evidence 609 is not properly before this court. Cf. State v. Duran, 233 Ariz.
310, 312 P.3d 109 (2013) (noting, in different context, where defendant must
testify before challenging an adverse pretrial ruling, but chooses not to
3 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.
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STATE v. BUCKLEY
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testify, defendant fails to preserve claim of error and waives appellate
review). Similarly, Buckley has not supported her claim that A.R.’s
testimony was impermissibly speculative when A.R. testified that the
damage to the door “looks like the opening of a screwdriver, a flathead
screwdriver wedged in there.” Moreover, Buckley has not shown error in
the superior court’s sustaining one objection by the State to a question asked
on recross of A.R. as being outside the scope of redirect. See State v. Jones,
110 Ariz. 546, 521 P.2d 978 (1974) (discussing, in dicta, discretionary recross
authorized under Arizona Rule of Evidence 611), overruled on other grounds
by State v. Conn, 137 Ariz. 148, 669 P.2d 581 (1983).
¶10 The reference to “[p]otential admission of self-serving
hearsay” by Buckley at trial is not supported by the Arizona Rules of
Evidence, which define an opposing party’s statement as “not hearsay” and
otherwise admissible. See Ariz. R. Evid. 801(d)(2). The flight or concealment
jury instruction given by the superior court is a Recommended Arizona
Jury Instruction (RAJI) and was supported by the evidence. See RAJI Stand.
Crim. 9 (2013). Similarly, the justification of self-defense jury instructions
given is a RAJI, modified to tailor it to the facts of the case, and was
supported by the evidence. See RAJI Statutory Crim. 4.04 (2013). The
superior court properly found that criminal trespass is not a lesser included
offense of attempted burglary given that, among other things, attempted
trespass is not a lesser-included offense of attempted burglary and trespass
is not a lesser-included offense of burglary. See State v. Starr, 119 Ariz. 472,
476-77, 581 P.2d 706, 710-11 (App. 1978). Finally, the record fully supports
the superior court’s finding, made after an evidentiary hearing, that
Buckley had three prior felony convictions, making one a prior “historical
prior felony conviction” for sentencing purposes. See A.R.S. §§ 13-
105(22)(d), -703.
CONCLUSION
¶11 This court has read and considered counsel’s brief and has
searched the record provided for reversible error and has found none. Leon,
104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537 ¶ 30, 2 P.3d at 96.
Accordingly, Buckley’s convictions and resulting sentences are affirmed.
¶12 Upon the filing of this decision, defense counsel is directed to
inform Buckley of the status of her appeal and of her future options.
Defense counsel has no further obligations unless, upon review, counsel
identifies 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). Buckley shall have thirty days from the date of the
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STATE v. BUCKLEY
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decision to proceed, if she desires, with a pro per motion for reconsideration
or petition for review.
:gsh
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