State v. Rogers ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CARL DAVID ROGERS, Appellant.
No. 1 CA-CR 18-0869
FILED 9-22-2020
Appeal from the Superior Court in Maricopa County
No. CR2015-114429-001
The Honorable James R. Rummage, Judge Pro Tempore, Retired
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
Carl David Rogers, Eloy
Appellant
STATE v. ROGERS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Chief Judge Peter B. Swann 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 (1969). Counsel for defendant Carl David
Rogers advised the court that, after searching the entire record, he has
found no arguable question of law, and asks this court to conduct an Anders
review of the record. Rogers was given the opportunity to file a
supplemental brief and has done so. This court has reviewed the record and
has found no reversible error. Accordingly, Rogers’ convictions and
resulting sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Rogers was charged with various offenses related to a March
2015 burglary at a car repair shop in Mesa. While the case was pending,
Rogers absconded, and he was tried in absentia. In September 2016, the jury
found Rogers guilty of theft, a Class 3 felony (based on the value of the
property taken); unlawful use of means of transportation, a Class 5 felony;
and unlawful flight from a law enforcement vehicle, a Class 5 felony. The
jury found Rogers not guilty of robbery in the third degree and found
aggravating circumstances alleged by the State had not been proven, or the
jury could not reach a unanimous verdict on the allegation.
¶3 Over the next year and a half, Rogers was arrested, and then
released, absconded again, and was arrested again. At his attorney’s
request, Rogers then participated in competency proceedings. See Ariz. R.
Crim. P. 11 (2020).1 After being found not competent but restorable, he
participated in restoration services and, in October 2018, was found
competent.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
2
STATE v. ROGERS
Decision of the Court
¶4 At a November 2018 sentencing, the court found Rogers had
at least several historical felony convictions, tracing back to the early 1980s,
and sentenced him as a category three repetitive offender. The court
sentenced Rogers to concurrent, less-than-presumptive prison terms, the
longest of which was nine years, awarding him 468 days of presentence
incarceration credit. The court also imposed financial consequences. This
court has jurisdiction over Rogers’ timely appeal pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶5 The record shows that Rogers was represented by counsel at
all stages of the proceedings and counsel was present at all critical stages.
The record contains substantial evidence supporting the verdicts and
historical felony convictions found by the court. The prison sentences
imposed were within statutory limits.
¶6 It does not appear the superior court asked Rogers if he
wished to speak at sentencing. But cf. Ariz. R. Civ. P. 26.10(b)(1) (“When the
court pronounces sentence, it must . . . give the defendant an opportunity
to address the court.”). However, no request was made for Rogers to do so
and he does not claim error, meaning any issue regarding allocution does
not constitute reversible error. See State v. Hinchey, 181 Ariz. 307, 313 (1995)
(“[E]ven if a court forgets to invite the defendant to speak, there is no need
for resentencing unless the defendant can show that he would have added
something to the mitigating evidence already presented.”). In all other
respects, from the record presented, all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure.
¶7 Rogers supplemental self-represented brief raises various
issues. He first argues that the post-verdict finding, after he was
apprehended many months after trial, that he was not competent but
restorable suggests he was “unable to assist his own attorney in his defense
after trial was held.” However, proceedings were stayed from the time he
was found not competent but restorable until he was later found to have
been restored to competency. Only after the finding of competency did the
sentencing occur, including the evidentiary hearing on his historical felony
convictions. Accordingly, Rogers has shown no denial of due process.
3
STATE v. ROGERS
Decision of the Court
¶8 Given the substantial period between trial and when he was
found not competent but restorable, Rogers has not shown he was not
competent at the time of trial. Moreover, he was tried in absentia and he has
not shown how the finding, many months later, that he was not competent
but restorable means he should be granted “a new trial due to these points
in order to have a fair trial.”
¶9 Rogers next claims that he was denied due process because he
did not have a meaningful opportunity to participate with his appellate
counsel. Rogers has not supported such a claim factually. Moreover, any
ineffective assistance of counsel claim more properly should be addressed
after his appeal is resolved. See Ariz. R. Crim. P. 32.
¶10 Rogers claims that his “alleged priors were exaggerated and
the courts were misle[]d by the prosecutor.” Again, however, he does not
support the claim factually. Nor does he show how the court erred in
finding his historical felony convictions and sentencing him as a category
three repetitive offender. Similarly, Rogers does not support his bald claim
that he “was denied the opportunity to participate meaningfully at every
phase.”
¶11 Rogers’ expressed concerns regarding safety during his prior
incarceration would have been relevant, if at all, at sentencing, where he
did not raise the issue and where he received less than presumptive prison
terms. His claims regarding how he was apprehended and the bond
forfeiture hearing are not relevant to the issues of guilt and his resulting
sentences, which are the focus of this appeal. Similarly, statements made
during a post-sentencing restitution hearing are not relevant here.
¶12 To the extent Rogers’ supplemental brief argues the trial
evidence should have been construed differently, that was an issue for the
jury to resolve at trial, not this court on appeal. See, e.g., State v. Lee, 189 Ariz.
590, 603 (1997) (“When the evidence supporting a verdict is challenged on
appeal, an appellate court will not reweigh the evidence. The court must
view the evidence in the light most favorable to sustaining the conviction,
and all reasonable inferences will be resolved against a defendant.”) (citing
State v. Tison, 129 Ariz. 546, 552 (1981)). Similarly, although Rogers claims
his booking photo was used at trial, he has not shown that it was identified
as such to the jury. To the extent Rogers claims he needed more time to file
his supplemental brief, he did not file a request seeking more time and the
time to do so has long since passed. Ariz. R. Crim. P. 31.13.
4
STATE v. ROGERS
Decision of the Court
CONCLUSION
¶13 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; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Accordingly, Rogers’ convictions and resulting sentences are affirmed.
¶14 Upon the filing of this decision, counsel is directed to inform
Rogers of the status of the appeal and of his 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 (1984). Rogers shall have
30 days from the date of this decision to proceed, if he desires, with a pro
se motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
5