State v. Morales ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARTY JOSEPH MORALES, Appellant.
No. 1 CA-CR 19-0347
FILED 8-13-2020
Appeal from the Superior Court in Maricopa County
No. CR2018-144542-001 DT
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz, Michael O’Toole
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. MORALES
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.
P E R K I N S, Judge:
¶1 Marty Joseph Morales, Jr. filed a timely appeal in accordance
with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297
(1969), following his conviction for aggravated assault, a class 5 felony.
Morales’ counsel has searched the record 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). Our obligation is to review the entire record
for reversible error, id., viewing the evidence in the light most favorable to
sustaining the convictions and resolving all reasonable inferences against
Morales, State v. Guerra, 161 Ariz. 289, 293 (1989). Having reviewed the
record, we find no reversible error and affirm.
¶2 On September 9, 2018, three Maricopa County detention
officers were walking through a pod of inmates in a common area. One
officer told inmate Mark Torres to step out of his cell for a random search.
Another officer told Torres he was going to be restrained and taken to
restrictive housing. Torres then punched an officer multiple times before
being restrained. Torres called for help, and Morales approached the
altercation and pushed one officer into a cell door. Morales was
subsequently charged with aggravated assault, a class 5 felony.
¶3 At trial, the state called the three officers involved and the jail
crimes detective for the Maricopa County Sheriff’s Office; each of the
officers testified that Morales shoved one officer. The defense called no
witnesses and Morales did not testify. The jury found Morales guilty of
aggravated assault.
¶4 Before sentencing, Morales agreed to five prior felony
convictions in a plea agreement for a separate charge. The trial court
allowed Morales to speak at sentencing and he did so. The court then
sentenced Morales to the presumptive term of five years as a category three
repetitive offender with credit for 277 days of presentence incarceration.
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STATE v. MORALES
Decision of the Court
¶5 Morales filed a supplemental brief raising several issues,
including claims for ineffective assistance of counsel. Post-conviction relief
proceedings—not this Anders appeal—are the proper venue to raise
ineffective assistance of counsel claims. See State v. Chavez, 243 Ariz. 313,
318, ¶ 15 (App. 2017); see also id. at 319, ¶ 21 n.7 (Cattani, J. concurring) (“The
Opinion notes—and I agree—that Anders-type review of ineffective
assistance of counsel claims is not feasible given that such claims generally
rely on an investigation beyond the judicial record.”).
¶6 Morales also claims prosecutorial misconduct through use of
false testimony, fabricated evidence, and false witnesses. A defendant must
show that the prosecutor’s alleged misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” State
v. Hughes, 193 Ariz. 1184, 1191 (1988) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). Morales points to no evidence in the record to
substantiate these claims and we find none.
¶7 Finally, Morales makes numerous claims of error. He
contends the trial judge failed to instruct the jury not to consider his custody
status in deciding the case; the indictment failed to include the exact
language of the violated statute; the grand jury did not return an
indictment; defense counsel, not the jury foreperson signed the verdict; and
there was an insufficient number of jurors. These claims are meritless. First,
the trial judge instructed the jury not to consider the possibility of past
crimes. Second, the indictment contained the exact language from the
statute, and any insufficiencies with the first grand jury were cured by a a
supervening grand jury indictment. Finally, the record does not reflect
defense counsel signed the jury verdict, and the jury included the minimum
number of eight jurors with one alternate. See A.R.S. § 21-102(A)–(B).
¶8 The record reflects all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. See State v.
Gomez, 27 Ariz. App. 248, 251 (App. 1976). Morales was present for all stages
of the proceeding. He was represented by counsel at all stages of the
proceeding except for the time that he voluntarily waived his right to
counsel and represented himself. The record contains sufficient evidence
for which the jury could find, beyond a reasonable doubt, that Morales is
guilty of aggravated assault upon a detention officer. At sentencing Morales
was allowed to speak, did so, and the court stated on the record that it was
a non-dangerous, repetitive offense as well as other factors considered in
determining the sentence. See Ariz. R. Crim. P. 26.9, 26.10. The trial court
delivered a sentence within the statutory limits. See A.R.S. §§ 13-701 to -709.
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STATE v. MORALES
Decision of the Court
¶9 We deny Morales’ pending pro per motions to file an
additional brief and to obtain video of trial proceedings.
¶10 We have reviewed the entire record for arguable issues of law
and find none, and therefore affirm Morales’ conviction and resulting
sentence. Leon, 104 Ariz. at 300–01.
¶11 Defense counsel’s obligations pertaining to Morales’
representation in this appeal have ended. Counsel must only inform
Morales 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).
AMY M. WOOD • Clerk of the Court
FILED: AA
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