State v. Vela ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JONATHAN DAVID VELA, Appellant.
No. 1 CA-CR 20-0258
FILED 4-15-2021
Appeal from the Superior Court in Maricopa County
No. CR2016-002390-001
The Honorable Gregory Como, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
The Susser Law Firm PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
STATE v. VELA
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Jonathan Vela appeals his jury conviction and sentence for
one count of burglary in the third degree, a class 4 non-dangerous but
repetitive felony. His counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
advising this Court that he found no arguable questions of law and asking
us to search the record for fundamental error. Vela has filed a supplemental
brief in propria persona, which the Court has considered. After reviewing
the record, we affirm Vela’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Vela. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). A woman heard her dog barking
in her enclosed backyard on April 28, 2015. The woman checked on the dog
and saw a man with long hair and tattoos standing between two sheds and
rummaging through a burlap sack that belonged to her. She told the man
he should not be there, turned away toward her house, and told her
daughter to call 911. When the woman turned back, the man was gone. The
woman searched the alley and found the man adjusting his clothes and hair
by a bicycle.
¶3 Sergeant Trantor first responded to the 911 call and found a
man in the alleyway adjusting his clothes. Sergeant Trantor immediately
detained the man, whom the woman later identified as the man in her
backyard. Based on this incident and a previous incident, a grand jury
indicted Vela on five felony offenses, which included burglary in the third
degree, a class 4 felony, and possession of marijuana. The State further
alleged that Vela had two prior felony convictions and committed the
burglary while released from confinement and under aggravating
circumstances.
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STATE v. VELA
Decision of the Court
¶4 In December 2016, Vela participated in a settlement
conference. The court informed Vela of the charges and the State’s case. The
court told Vela that if he was convicted on all counts in the indictment, he
could serve anywhere from 14.5 years to 62 years’ imprisonment, including
the time he was currently serving for convictions in unrelated cases. The
court then explained the State’s plea offer, to which Vela said “I don’t take
seven [years] for something I didn’t do.” The court suggested that Vela
discuss the matter with counsel, but Vela responded “[i]t’s my life” and
declined the plea.
¶5 On Vela’s motion, the court severed the burglary count from
all other counts. At trial, the victim identified Vela as the man in her
backyard rummaging through her belongings and testified that he was not
supposed to be there. Detective Peckins testified to his involvement
responding to the call, including his interview with the victim and the
victim’s fenced-in backyard. Sergeant Trantor testified that he was the first
responding officer to the scene and that he apprehended Vela in the
alleyway. He detained Vela until the victim identified Vela as the burglar.
The State rested and Vela elected not to testify in his defense.
¶6 Vela moved for a judgment of acquittal which was denied.
Trial resumed the next day and the defense rested. The court properly
instructed the jury on the burdens of proof, presumption of innocence, and
the elements of the offense. After argument and deliberation, the jury found
Vela guilty. The State provided two additional witnesses for its aggravation
allegations and the jury was instructed on aggravation. The jury found that
the State proved that the burglary was committed while Vela was on
probation and committed in expectation of pecuniary gain.
¶7 About a week later, Vela entered a plea agreement in which
he pled guilty to felony possession of marijuana, a class six felony, in
exchange for the dismissal of the remaining charges and sentencing
allegation of committing the offense while on release. Vela stated that he
had read and “under[stood] the terms of the plea agreement.” The court
discussed Vela’s prior felony convictions and the sentencing range of the
plea, which Vela said he understood.
¶8 After the trial and change of plea but before sentencing, Vela
moved to change counsel and requested oral argument. He further claimed
that “he did have trouble thinking, consintrating [sic], and extreme anxiety
that affected the outcome of his trial.” At the oral argument, Vela orally
moved for a Rule 11 evaluation. The court granted both the motion for new
counsel and the oral motion for Rule 11 evaluation and reset Vela’s sentence
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STATE v. VELA
Decision of the Court
pending the evaluation. Three doctors evaluated Vela. Two found Vela
incompetent and the other found Vela competent and that he was “grossly
exaggerated and disingenuous” at the competency examination.
¶9 The court found Vela “unable to understand the nature of the
proceedings and/or is unable to assist counsel in [his] defense” and was
therefore incompetent under A.R.S. § 13-4510. The court ordered treatment
and a subsequent written status report to be submitted to the court and set
a non-evidentiary status hearing. At the ensuing hearing, the court found
Vela competent for sentencing as recommended by the status report. The
court sentenced Vela to the presumptive term of ten years’ imprisonment
for the burglary conviction and three years’ imprisonment for possession of
marijuana. The sentences were concurrent to each other but consecutive to
Vela’s current sentences on two unrelated convictions.
¶10 Vela did not appeal the sentence. A year and a half after later,
however, he filed a notice of post-conviction relief asserting ineffective
assistance of counsel for failing to file an appeal, stating he could not reach
his appellate attorney. Despite the late notice of post-conviction relief, the
court granted relief by extending the time Vela could file a delayed notice
of appeal in view of the manifest injustice, citing Rule 32.1(f) of the Arizona
Rules of Criminal Procedure. Vela timely filed his delayed notice of appeal.
DISCUSSION
¶11 Vela’s counsel has advised this Court that after a diligent
search of the entire record, he has found no arguable question of law. In his
supplemental brief, Vela argues that he was incompetent during his trial
and therefore requests a new trial. He asserts that because he has a history
of mental illness and had been declared incompetent in a previous
proceeding, he was incompetent to stand trial in this proceeding and that if
not incompetent, he would likely have accepted the initial plea agreement.
We review Vela’s convictions and sentences for fundamental error. See State
v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011). To prevail under this standard
of review, a defendant must establish that (1) error exists, (2) the error is
fundamental, and (3) the error caused him prejudice. State v. Smith, 219
Ariz. 132, 136 ¶ 21 (2008).
¶12 We find no error. At any time after a defendant is indicted,
“the court may, on motion or on its own, order a defendant's examination
to determine whether the defendant is competent to stand trial.” Ariz. R.
Crim. P. Rule 11.2(a). Trial courts are under a continuing duty to inquire
into a defendant’s competency, and to order a Rule 11 examination sua
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STATE v. VELA
Decision of the Court
sponte if reasonable grounds exist. Ariz. R. Crim. P. Rule 11.2(a); State v.
Amaya-Ruiz, 166 Ariz. 152, 162 (1990). Reasonable grounds exist if sufficient
evidence indicates that the defendant is “unable to understand the nature
and objective of the proceedings or to assist in his or her defense because of
a mental illness, defect, or disability.” Ariz. R. Crim. P. Rule 11.1(a)(2); State
v. Salazar, 128 Ariz. 461, 462 (1981). A defendant is not incompetent to stand
trial merely because the defendant has been diagnosed with a mental
illness, defect, or disability. Ariz. R. Crim. P. Rule 11.1(b).
¶13 The record before the trial court did not provide reasonable
grounds for it to have sua sponte ordered a Rule 11 examination. Nothing
showed that Vela had been declared incompetent before the settlement
conference or trial. At the settlement conference, the trial court explained
the terms of the plea agreement and the State explained the evidence it
would present at trial, and Vela replied that he would not serve time for
something he did not do. Contrary to his assertions, Vela appeared aware
of the State’s evidence and the consequences of rejecting the guilty plea.
¶14 No evidence showed that he did not know the roles of his
defense attorney, the prosecutor, the witnesses, or the judge, or that he was
incompetent to assist his attorney. A previous determination of
incompetency in an unassociated proceeding, especially one not before the
court, does not compel a trial court to sua sponte order a competency
evaluation. See Ariz. R. Crim. P. 11.1(a)(2); see also Salazar, 128 Ariz. at 462.
The trial court did not err in proceeding to trial.
¶15 Vela further alleges, however, that he told his attorney that he
was incompetent and requested she move for a competency evaluation. The
record shows no such request, however. To the extent that he is claiming
that his attorney’s failure to request an evaluation constitutes ineffective
assistance of counsel, he must raise this claim in a petition for post-
conviction relief under Arizona Rule of Criminal Procedure 32. State v.
Spreitz, 202 Ariz. 1, 3 ¶ 9 (2002).
¶16 We have further reviewed the record for reversible error, see
Leon, 104 Ariz. at 300, and find none. All the proceedings were conducted
in compliance with the Arizona Rules of Criminal Procedure. Vela was
represented by counsel through trial and sentencing. The sentence imposed
was within the statutory guidelines. We decline to order further briefing
and affirm Vela’s conviction and sentence. Upon the filing of this decision,
defense counsel shall inform Vela of the status of the appeal and of his
future options. Counsel has no further obligations unless, upon review,
counsel finds an issue appropriate for submission to the Arizona Supreme
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STATE v. VELA
Decision of the Court
Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85
(1984). Vela shall have 30 days from the date of this decision to proceed, if
he desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶17 For the foregoing reasons, we affirm Vela’s conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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