State v. Vasquez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
REYNALDO SANCHEZ VASQUEZ, Appellant.
No. 1 CA-CR 14-0804
FILED 12-31-15
Appeal from the Superior Court in Maricopa County
No. CR2009-007777-001
The Honorable Sherry K. Stephens, Judge
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
Reynaldo Sanchez Vasquez, Winslow
Appellant
STATE v. VASQUEZ
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
N O R R I S, Judge:
¶1 Reynaldo Sanchez Vasquez timely appeals from his
convictions and sentences for three counts of money laundering in the
second degree (“money laundering”), class 3 felonies, and five counts of use
of wire communication or electronic communication in drug related
transactions (“use of wire communication”), class 4 felonies. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Vasquez’s counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow
Vasquez to file a supplemental brief in propria persona, and he did so. We
reject the arguments raised in Vasquez’s supplemental brief and, after
reviewing the entire record, find no fundamental error. Therefore, we
affirm Vasquez’s convictions and sentences as corrected.
FACTS AND PROCEDURAL BACKGROUND1
¶2 In October 2007, Phoenix police began investigating the
Castro drug organization. A confidential informant agreed to provide
information to police about a man he knew as “Tony.” Detective J.B. led
the investigation and set up five controlled buys of heroin between Tony
and the informant. The informant also provided police with two of Tony’s
telephone numbers which he used to conduct his drug trafficking business.
¶3 After receiving judicial authorization, J.B. obtained call detail
reports, a pen register, and, on March 11, 2008, a signed court order
authorizing police to intercept five different cellular telephone lines—two
belonging to Tony and three belonging to his drug “runners.” The State
played several telephone calls for the jury, and established Tony was
receiving frequent telephone calls from two individuals who were buying
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Vasquez. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. VASQUEZ
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drugs from Tony. J.B. testified Tony would receive up to 700 telephone calls
per day and estimated he had over 100 “customers.”
¶4 Vasquez became a subject of the investigation when police
intercepted several telephone calls between Vasquez and Tony. Vasquez
owned a cellular telephone store, and based on their investigation, police
confirmed Vasquez provided Tony and his runners with cellular
telephones and service. At trial, the State presented substantial evidence—
principally based on numerous intercepted cellular telephone calls between
Vasquez and Tony, and Vasquez’s bank records—Vasquez knew Tony was
selling drugs2 and was knowingly “laundering” money for Tony.3
¶5 After the jury retired to begin deliberations, the superior court
informed Mr. Vasquez, who had been released pending trial, as follows:
Mr. Vasquez, you have an absolute right to be
present when the jury returns with their verdict.
Once I am notified that we have a verdict, we
will alert your lawyer to that effect. If you have
not returned back to the courtroom within an
hour, I’m going to assume that you don’t want
to be present, and we will take the verdict
without you.
Vasquez acknowledged he understood what the court had told him.
¶6 Nevertheless, after the jury notified the court it had reached a
verdict, Vasquez failed to appear. The court waited the promised hour and
then the jury announced its verdict on each count, as summarized above.
See supra ¶ 1. The court issued a bench warrant for Vasquez’s arrest.
¶7 Police apprehended Vasquez on April 30, 2014. The superior
court conducted a “prior’s trial” on June 20, 2014, finding the State proved
2During
his taped interview with police, Vasquez admitted he
knew Tony was a drug dealer.
3In CR2008-127334-030, the State charged Vasquez with illegal
control of an enterprise and conspiracy to commit possession of narcotic
drugs for sale. The superior court consolidated that case with this case,
CR2009-007777-001, for trial purposes. The jury convicted Vasquez on the
charges in Cause CR2008-127334-030. That case is not included within this
appeal.
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beyond a reasonable doubt that Vasquez had been convicted of a non-
historical class 6 felony, theft, on July 16, 2001.
¶8 At the sentencing hearing, pursuant to the sentencing statutes
in effect during the dates of Vasquez’s offenses, the superior court imposed
the presumptive sentence on all counts—3.5 years’ imprisonment on count
1 (money laundering), a class 3 felony; 2.5 years’ imprisonment on count 2
(use of wire communication), a class 4 felony; 2.5 years’ imprisonment on
count 3 (use of wire communication), a class 4 felony; 4.5 years’
imprisonment on count 4 (use of wire communication), a class 4 felony; 6.5
years’ imprisonment on count 5 (money laundering); 4.5 years’
imprisonment on count 6 (use of wire communication), a class 4 felony; 6.5
years’ imprisonment on count 7 (money laundering), a class 3 felony; and
4.5 years’ imprisonment on count 8 (use of wire communication), a class 4
felony.4 The court sentenced Vasquez as a “Non Dangerous—Repetitive
Category 2” offender (see infra ¶ 15) beginning with count 4 because he had
been convicted of multiple offenses which were not committed on the same
occasion.5 The court ordered all sentences to run concurrently except the
sentence on count 2, which the court ordered to run consecutive to the
sentences on the other counts. The court thus sentenced Vasquez to a total
of 9 years’ imprisonment—6.5 years’ plus 2.5 years’ imprisonment—with
121 days’ presentence incarceration credit on all counts except count 2. See
State v. Cuen, 158 Ariz. 86, 87, 761 P.2d 160, 161 (App. 1988) (when
4Arizona Revised Statutes (“A.R.S.”) section 13-701(C) (West
2008) governed the presumptive sentence for a “first [felony] offense” and
provided for 3.5 years’ imprisonment for a class 3 felony, and 2.5 years’
imprisonment for a class 4 felony—counts 1 and 2 against Vasquez,
committed on the same occasion. For the “second or subsequent offense,”
A.R.S. § 13-702.02 (West 2008) governed the sentencing ranges. On count 3,
the superior court sentenced Vasquez to 2.5 years’ imprisonment consistent
with the presumptive term in A.R.S. § 13-702.02(B)(3). And on counts 4
through 8, the court sentenced Vasquez consistent with the presumptive
terms in A.R.S. § 13-702.02(B)(4).
5For repetitive sentencing purposes, counts 1 and 2, both
committed on or about March 12, 2008, constituted a single offense, count
3, committed on or about April 1, 2008 was a single offense, count 4,
committed on or about April 14, 2008 was a single offense, counts 5 and 6,
committed on or about April 24, 2008, constituted a single offense, and
counts 7 and 8, committed on or about May 1, 2008, constituted a single
offense. See A.R.S. § 13-702(A) (West 2008).
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consecutive sentences are imposed, court may not give double credit for
presentence time served).
DISCUSSION
I. Supplemental Brief
¶9 Restated and reorganized for clarity, Vasquez argues in his
supplemental brief that his trial counsel was ineffective because he did not
have him testify at trial, did not “fight” for him, did not speak to Tony, did
not play his entire recorded interview with police to the jury, “rarely
objected,” only spoke for him twice during the trial, and advised him not to
take a plea offer. These arguments are not properly before us. See State ex
rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007)
(“[D]efendant may bring ineffective assistance of counsel claims only in a
Rule 32 post-conviction proceeding—not before trial, at trial, or on direct
review.”).
¶10 Vasquez also argues appellate counsel was ineffective
because he did not consult with him before filing an Anders brief. This
argument is also not properly before us. To raise an ineffective assistance
of appellate counsel claim, Vasquez must pursue a Rule 32 post-conviction
proceeding. See State v. Bennett, 213 Ariz. 562, 566, ¶ 16, 146 P.3d 63, 67
(2006) (defendant may raise appellate counsel’s ineffectiveness in
subsequent Rule 32 petition).
¶11 Vasquez next argues the State did not prove his guilt on the
charges beyond a reasonable doubt because “no drugs [were] found in [his]
store, [he] was never pulled over . . . to see if [he] was dealing drugs with
Tony, no search warrants [were] executed [at his] residences,” and the State
essentially fabricated his relationship with Tony, played only those
portions of his recorded interview with police that portrayed him in a poor
light, demeaned his character at trial, and “never had to prove anything.”
We reject this argument. See State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d
192, 198 (2010) (appellate court reviews sufficiency of evidence by
determining whether jury’s findings are supported by substantial evidence;
that is, evidence adequate to support a reasonable person’s conclusion of
defendant’s guilt beyond a reasonable doubt). At trial, the State played
numerous incriminating cellular telephone calls between Vasquez and
Tony demonstrating Vasquez knew Tony was a drug dealer,6 and further,
6As
noted, during his taped interview with police, Vasquez
admitted he knew Tony was a drug dealer. In his supplemental brief,
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based on those calls and bank records, knowingly “laundered” money for
Tony.
¶12 Finally, Vasquez argues he never gave advice on how “cricket
phones can’t be intercepted by police.” We reject this argument. During
trial, the State played an intercepted cellular telephone call in which Tony
told one of his runners that Vasquez reassured him of the difficulty in
intercepting calls on Cricket devices. The intercepted phone call was
properly admitted as a statement of Vasquez’s coconspirator. See State v.
Tucker, 231 Ariz. 125, 144, ¶ 49, 290 P.3d 1248, 1267 (App. 2012) (declarations
of coconspirator admissible “and there is no requirement that a
coconspirator’s statement satisfy the Confrontation Clause”).
II. Anders Review
¶13 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Vasquez received a
fair trial. He was represented by counsel at all stages of the proceedings
and was present at all critical stages except when the jury returned its
verdicts. See supra ¶ 6. On the record before us, we conclude Vasquez
waived his right to be present for this portion of the trial. See Ariz. R. Crim.
P. 9.1 (court may infer voluntary absence if defendant had notice of
proceeding, right to be present, and warning that proceeding would go
forward should he fail to appear).
¶14 As discussed, the evidence presented at trial was substantial
and supports the verdicts. The jury was properly comprised of 12 members
and the court properly instructed the jury on the elements of the charges,
Vasquez’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. The superior court received and
considered a presentence report, Vasquez was given an opportunity to
speak at sentencing and did so, and his sentences were within the range of
acceptable sentences for his offenses.7
Vasquez argues the police failed to advise him of his “rights” when they
interviewed him. The recording reflects, however, that a police detective
informed Vasquez of his Miranda rights at the beginning of the interview
and asked if he understood them. Vasquez said “yes.”
7Though the sentencing court found an aggravating factor not
explicitly alleged by the State, it imposed the presumptive term on all
counts. Thus, even assuming the court improperly found an additional,
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¶15 We do, however, correct the sentencing minute entry to
remove all references to “Category 2” from counts 4, 5, 6, 7, and 8. The
sentencing statutes in effect at the time Vasquez committed the offenses did
not provide for a “Category 2” classification.
CONCLUSION
¶16 We decline to order briefing and affirm Vasquez’s convictions
and sentences as corrected.
¶17 After the filing of this decision, defense counsel’s obligations
pertaining to Vasquez’s representation in this appeal have ended. Defense
counsel need do no more than inform Vasquez 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶18 Vasquez has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Vasquez 30 days from the date of this decision
to file an in propria persona motion for reconsideration.
:jt
unalleged aggravating circumstance, we hold the court committed no error.
See State v. Johnson, 210 Ariz. 438, 442, ¶ 13, 111 P.3d 1038, 1042 (App. 2005)
(no error when court imposes presumptive term after consideration of
aggravating circumstance not found by jury).
7