State v. Collins ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DEJON NEAVELL COLLINS, Appellant.
No. 1 CA-CR 17-0329
FILED 6-19-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-120469-001 DT
The Honorable John Rea, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. COLLINS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.
C R U Z, Presiding Judge:
¶1 Dejon Neavell Collins challenges his conviction on the
grounds that, although he voluntarily chose to absent himself from the trial,
the court’s proceeding with the verdict and aggravation phase in his
absence was in violation of his right to be present at trial. For the following
reasons, we affirm Collins’ conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 On April 29, 2016, T.M. contacted police regarding a
disturbance at her apartment complex. T.M. reported seeing a man, later
identified as Collins, and a woman arguing and told police that the man
had retrieved a gun from his car. Officers arrived and discovered Collins
in the apartment parking lot. As they approached, officers witnessed
Collins reach under his car. Officers ordered Collins away from the car and
found a handgun underneath. Collins admitted he was on parole and was
not permitted to possess a firearm. The State indicted Collins on one count
of misconduct involving weapons as a prohibited possessor, a Class 4
felony.
¶3 In June and July 2016, the State alleged historical priors and
aggravating factors. In March 2017, Collins, released on bond, failed to
appear for the final trial management conference and a bench warrant was
issued. The court found Collins voluntarily absented himself and later
proceeded with trial in absentia. Collins was arrested mid-trial and
appeared before the court to waive his presence for the remaining trial
proceedings. Upon advisement of his rights, Collins waived his presence.
Trial continued in his absence and the jury convicted him of misconduct
involving weapons as a prohibited possessor.
¶4 The court then proceeded with the aggravation phase to
consider whether Collins possessed the firearm with the intent to promote,
further, or assist criminal conduct by a criminal street gang. After
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STATE v. COLLINS
Decision of the Court
testimony, the jury found the aggravating circumstance proven, and the
court sentenced Collins to a mitigated term of 13 years’ imprisonment.
¶5 Collins timely appealed his conviction and sentence. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and 13-
4033(A).
DISCUSSION
¶6 Collins argues that while he waived his presence for the guilt
phase of trial, the court erred in finding he had waived his presence during
aggravation and the reading of the verdict.
¶7 Collins failed to present this issue to the superior court, and
thus we review his claim for fundamental error. To prevail, the defendant
must show error, and establish that the nature of the error goes to the
foundation of the case, takes away a right essential to his defense, and is of
such magnitude that he could not have received a fair trial. State v. Dalton,
241 Ariz. 182, 185-86, ¶¶ 11-12 (2016).
¶8 In Arizona, a defendant has the right to be present at every
stage of trial, from the impaneling of the jury through the return of the
verdict. Ariz. R. Crim. P. 19.2. This right is protected under the Sixth
Amendment and Article 2, Section 24, of the Arizona Constitution, State v.
Schackart, 190 Ariz. 238, 255 (1997), as well as the due process clauses of the
Fifth and Fourteenth Amendments, State v. Levato, 186 Ariz. 441, 443 (1996).
The defendant’s right relates to the proceedings that bear a reasonably
substantial relation to the fullness of his defense. Schackart, 190 Ariz. at 255;
United States v. Gagnon, 470 U.S. 522, 526 (1985). However, a defendant may
voluntarily waive his right to be present. State v. Dann, 205 Ariz. 557, 571-
72, ¶¶ 53-56 (2003).
¶9 Collins argues he did not voluntarily waive his right to be
present because the court’s colloquy was inadequate and he was not fully
informed of his rights. We find this argument unpersuasive, as the record
reflects Collins’ clear intention to waive his presence.
¶10 After his initial arrest, Collins signed a release order advising
him that trial could proceed in his absence, entered a plea of not guilty,
secured his release through surety bond, and then absconded, thus
voluntarily waiving his presence at trial. See State v. Pena, 25 Ariz. App. 80,
80-81 (1975) (stating that, for the purpose of showing a voluntary waiver, a
statement in a release order signed by a defendant advising him as to his
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STATE v. COLLINS
Decision of the Court
right to be present and warning him trial will proceed in his absence is
sufficient). Upon his arrest mid-trial, Collins, through counsel, notified the
court that he did not wish to attend the remainder of trial. Upon the court’s
advisement of his constitutional right to be present and discussion with
counsel, Collins voluntarily and knowingly waived his right to be present
during his trial. Neither Collins nor his counsel asked for a qualified waiver
of his absence to allow him to be present during the aggravation phase or
the reading of the verdict. Further, Collins did not object to his absence at
trial during sentencing one month later, indicating he intended his waiver
to include all stages of trial.
¶11 Collins argues he only waived his presence for the guilt phase
of trial, not for the aggravation stage or reading the verdict, and that he was
never informed those portions of the trial could proceed in his absence.1
This argument is equally unpersuasive. First, Collins acknowledged
counsel advised him of his rights. Second, Collins had considerable
experience with the criminal justice system based on his two prior felony
convictions, and cannot contest on appeal that he was uninformed of the
potential for the jury to return a guilty verdict. See State v. Rigsby, 160 Ariz.
178, 182 (1989) (holding defendant’s considerable experience with the
criminal justice system supported the finding that his waiver was
voluntary). Third, the State alleged the aggravating circumstances in June
and July 2016, several months prior to trial, and Collins has not alleged that
his counsel failed to advise him of the aggravating circumstances and
possibility that the jury would find him guilty thereby proceeding to
aggravation.
¶12 Because we hold that Collins voluntarily waived his right to
be present at trial we find no error. We therefore do not need to address
whether prejudice resulted, but note that Collins’ counsel cross-examined
witnesses and advocated on his behalf during the aggravation phase at trial
and at sentencing, and further note that Collins has failed to show how his
1 Collins cites Blakely v. Washington, 542 U.S. 296, 313-14 (2004), and
State v. Ward, 211 Ariz. 158, 162, ¶ 13 (App. 2005), to support his claim the
court’s colloquy was inadequate and that he did not waive his presence for
the aggravation phase. Both cases cited discuss the invalid waiver of
defendant’s right to have a jury determine aggravating circumstances,
which is not at issue in this case. The court did not find Collins waived his
right to have a jury determine aggravating circumstances, rather just that
Collins waived his presence at the aggravation proceeding; a right bearing
less relation to the fullness of his defense.
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STATE v. COLLINS
Decision of the Court
absence from the aggravation phase and reading of the verdict deprived
him of a fair trial.
CONCLUSION
¶13 For the foregoing reasons, we affirm Collins’ conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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