State v. Singleton ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CORY A. SINGLETON, Appellant.
No. 1 CA-CR 19-0061
FILED 9-12-2019
Appeal from the Superior Court in Maricopa County
No. CR 2018-001983-001
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
Cory A. Singleton
Appellant
STATE V. SINGLETON
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.
P E R K I N S, Judge:
¶1 Cory A. Singleton timely filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969),
following his convictions for possession of a dangerous drug, a class 4
felony; and possession of drug paraphernalia, a class 6 felony. Singleton’s
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999).
¶2 The court permitted Singleton to file a supplemental brief. He
responded with a “Notice to Adject Motion to Strike Anders Brief,” [sic]
which this court, through a judge pro tempore, construed as a motion for
new counsel and as a motion to strike defense counsel’s Anders brief. Both
motions were properly denied. While we note that Singleton did not then
file a supplemental brief titled as such, he did raise two legal issues in his
motion that we will review out of an abundance of caution as part of our
review of the entire record.
¶3 Singleton claims that the superior court’s decision allowing
him to waive his Sixth Amendment right to self-representation was error.
Singleton also claims that the state law library resources to which he had
access were so insufficient as to deprive him of his ability to assist in his
own defense. Finally, counsel asks this court to search the record for
fundamental error. After reviewing the entire record, we affirm Singleton’s
convictions and resulting sentences.
FACTUAL AND PROCEDURAL HISTORY
¶4 On December 9, 2016, around 9:15 am, Officer McNeal
engaged in a community contact with Cory Singleton. During that contact,
Officer McNeal took “a small folding knife” from Singleton’s person. Upon
completing the contact, Officer McNeal returned possession of the knife to
Singleton by placing it in Singleton’s backpack. Fifteen minutes later,
Officer McNeal responded to a 9-1-1 call concerning a man with a knife at
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STATE V. SINGLETON
Decision of the Court
a gas station. After hearing the call over the radio, Officer McNeal
recognized Singleton’s description and went to the gas station. Another
responding officer, Officer Weigler, detained Singleton while Officer
McNeal searched his person for weapons. During his search, Officer
McNeal observed Singleton’s unzipped bag, and observed the previously
found knife visible inside. Officers McNeal and Weigler placed Singleton
under arrest, and, after speaking with witnesses at the gas station, Officer
McNeal searched Singleton’s bag. Inside the bag, Officer McNeal found the
knife, as well as a “meth pipe with a white residue inside it.” The Phoenix
Police Crime Laboratory revealed through testing that the residue consisted
of a usable quantity of methamphetamine.
¶5 The State charged Singleton with one count of aggravated
assault, one count of possession of dangerous drugs, and one count of
possession of drug paraphernalia. Singleton waived his Sixth Amendment
right to counsel on May 23, 2018, and represented himself pro se until
October 22, 2018. Just prior to opening statements, Singleton waived his
right to represent himself and allowed his advisory counsel to represent
him. The jury found Singleton not guilty of aggravated assault, and guilty
of possession of dangerous drugs and possession of drug paraphernalia.
DISCUSSION
¶6 The record reveals sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Singleton is guilty of
possession of dangerous drugs and possession of drug paraphernalia. The
record reflects that all proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. See State v. Gomez, 27 Ariz. App. 248,
251 (App. 1976) (citing Ariz. R. Crim. P. 1.2). Singleton knowingly,
intelligently, and voluntarily waived his right to counsel and exercised his
right to represent himself during the preliminary stages of this matter. See
Iowa v. Tovar, 541 U.S. 77, 88 (2004). Following his explicit waiver of his right
to self-representation, Singleton was represented by counsel at all
subsequent stages of the proceeding. See, e.g., Buhl v. Cooksey, 233 F.3d 783,
800 (3d Cir. 2000); Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000). At
sentencing, Singleton spoke on his own behalf and the court stated on the
record the factors it considered in imposing the sentence. See Ariz. R. Crim.
P. 26.9, 26.10. The sentence imposed was within the statutory limits. See
A.R.S. §§ 13-701 to 13-709.
¶7 Singleton’s first argument is without merit. Nothing about
Singleton’s waiver of his right to self-representation, or as Singleton put it
“defendant[’s] attempt to withdraw waiver of his right to counsel,” was
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STATE V. SINGLETON
Decision of the Court
error. It is well established that “[p]articipation by counsel with a pro se
defendant’s express approval is, of course, constitutionally
unobjectionable.” McKaskle v. Wiggins, 465 U.S. 168, 182 (1984); see also State
v. Boggs, 218 Ariz. 325, 338, ¶ 60 (2008) (citing id.) (“A defendant who
exercises the right to self-representation can subsequently waive that right
either explicitly or implicitly.”). The court acknowledged the waiver and
allowed advisory counsel to proceed only after the court inquired into the
knowingness, voluntariness, and intelligence of the action. This explicit
exchange is more than sufficient to constitute a waiver, and therefore the
court did not err in accepting the waiver.
¶8 Singleton’s second argument is also without merit. Pro se
defendants do have a constitutional right of access to the courts that
requires prison authorities to “assist inmates in preparation and filing of
meaningful legal papers.” Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting
Bounds v. Smith, 430 U.S. 817, 828 (1977) (abrogated on other grounds by
Lewis, 518 U.S. at 354)). Defendants do not have “an abstract, freestanding
right to a law library or legal assistance.” Id. at 351. Accordingly, an inmate
must establish an actual injury to his ability to have meaningful access to
the courts resulting from the alleged inadequate assistance to prevail on
such a claim. Id. A defendant cannot merely allege some theoretical defect
in the library or assistance program. Id. Here, Singleton has not alleged any
facts that would suggest even a theoretical deficiency. Consequently, his
argument is meritless.
CONCLUSION
¶9 We have reviewed the entire record for arguable issues of law
and find none, and therefore affirm Singleton’s two convictions and
resulting sentences. Leon, 104 Ariz. at 300–01.
¶10 Defense counsel’s obligations pertaining to Singleton’s
representation in this appeal have ended. Counsel need do no more than
inform Singleton 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 (1984). On the court’s own motion, Singleton has thirty
days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration. Additionally, Singleton has thirty days from the
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Decision of the Court
date of this decision to proceed, if he wishes, with a pro per petition for
review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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