Opinion
No. 1 CA-CR 14-0380
07-28-2015
STATE OF ARIZONA, Appellee, v. TALVIN LAMAR GREEN, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-442945-001
The Honorable Dawn Bergin, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Talvin Lamar Green Jr. filed an Anders appeal from his conviction for possession of marijuana, a class six felony, redesignated to a class one misdemeanor before trial. See Anders v. California, 386 U.S. 738 (1967); State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). After reviewing the entire record, we conclude the evidence is sufficient to support the verdict and sentence and there is no fundamental error. Accordingly and for the following reasons, we affirm the conviction but correct the sentencing minute entry to reflect that Green did not waive his right to a jury trial.
FACTUAL AND PROCEDURAL HISTORY
¶2 Officers P and C of the Phoenix Police Department went to an apartment in south central Phoenix to follow-up on a lead on a missing juvenile. The officers encountered Green sitting in a chair outside of the apartment. Officer P asked him for his identification and Green identified himself. Officer P also asked Green if he knew anything about the missing juvenile, and Green indicated he did not. While talking to him, Officer P noticed "a bulge in the coin pocket of [Green's] pants." He asked Green if he had drugs in his pocket. Green said he had "just a little bit of weed." Officer P then reached into Green's pocket and removed a plastic bag containing a substance the officer believed to be marijuana. Officer P impounded the bag and its contents and Mirandized Green. Officer P then asked Green if he had a medical marijuana card, and Green indicated that he did not. Lab analysis determined that the bag contained 2.6 grams of marijuana.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶3 The State charged Green with illegal possession of marijuana, a class six felony. Green filed a motion to suppress the evidence of marijuana seized incident to his arrest arguing that there was no probable cause for an arrest because Officer P did not first determine if Green lawfully possessed the marijuana pursuant to Arizona's Medical Marijuana Act ("AMMA"), Arizona Revised Statutes ("A.R.S.") sections 36-2801 to - 2819 (2014). The trial court denied the motion, reasoning that the AMMA provides a defense or immunity to prosecution for medical marijuana cardholders, but officers need not ask if the suspect has a medical marijuana card to establish probable cause of illegal marijuana possession.
¶4 Pursuant to A.R.S. § 13-604(B) (2010), the State filed a motion to redesignate the charge from a class six felony to a class one misdemeanor and requested a bench trial. In a subsequent motion, Green's attorney stated that he did not object to the State's motion. In its sentencing minute entry, the court stated that Green "knowingly, intelligently and voluntarily waived the right to a trial by jury."
¶5 The trial court found Green guilty and sentenced him to one year of unsupervised probation beginning on May 21, 2014, assessed a $750 fine, and ordered eight hours of a drug education program and twenty-four hours of community restitution. The State asked that the conviction be designated a second strike under Proposition 200, and Green moved to have it designated as a first strike. See A.R.S. § 13-901.01(A), (F) (2010). Noting the lack of information in the record and absence of an admission of prior strikes by Green, the court declined to designate it either way.
The trial court's minute entry refers to community restitution, but in the transcript, the court refers to it as community service. In 2005, the legislature substituted "restitution" for "service" in sentencing statutes. See generally 2005 Ariz. Sess. Laws, ch. 187 (1st Reg. Sess.). See, e.g., State v. Lewis, 224 Ariz. 512, 516 n.8, ¶ 24, 233 P.3d 625, 629 n.8 (App. 2010) (Hall, J., dissenting) (using terms interchangeably).
¶6 Green timely appealed, but his "[c]ounsel has found no arguable question of law that is not frivolous" and asked us to review the record for fundamental error in accordance with Anders, 386 U.S. 738, and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Green was given the opportunity to but did not file a supplemental brief in propria persona.
DISCUSSION
¶7 In an Anders appeal, we review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). We will only reverse if there was fundamental error at trial that prejudiced the defendant. Id. at ¶ 20. On review, we view the facts in the light most favorable to sustaining the court's verdict and resolve all inferences against the appellant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
A. Green's Appeal is Not Moot Because the Collateral Consequences of His Conviction Continue Past the End of His Sentence
¶8 Our decision comes after Green's probation ended. We generally dismiss cases as moot when any action taken by this Court would have no effect on the parties. Bank of New York Mellon v. De Meo, 227 Ariz. 192, 193-94, ¶ 8, 254 P.3d 1138, 1139-40 (App. 2011). However, we will review criminal convictions even after the defendant's sentence is completed, because the collateral legal consequences accompanying a conviction do not cease at the end of the sentence. See State v. Cutler, 121 Ariz. 328, 330, 590 P.2d 444, 446 (1979); Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 9, 277 P.3d 811, 814 (App. 2012). We therefore proceed to address the merits of the case.
B. The Evidence of Marijuana Seized Incident to Arrest was Properly Admitted
¶9 Green moved to suppress the evidence of the marijuana seized incident to his arrest. He argued that Officer P did not have probable cause to arrest Green based solely on his statement that he had "a little bit of weed." He reasoned that after the passage of the AMMA, there are legal reasons to possess marijuana and, therefore, Officer P could not conclude that Green violated the law simply because Green admitted he possessed it. See A.R.S. § 36-2801 (defining AMMA cardholder as "a qualifying patient . . . who has been issued and possesses a valid registry identification card"); A.R.S. § 36-2811(A) ("There is a presumption that a qualifying patient . . . is engaged in the medical use of marijuana . . . if . . . [the patient possesses] a registry identification card" and an allowable amount of marijuana). The court denied the motion to suppress, interpreting the AMMA as providing a defense to or immunity from prosecution but determining that it did not change the probable cause standard for an arrest.
¶10 We find no fundamental error in the admission of marijuana evidence, because it was discovered incident to a valid arrest. Green's statement that he had marijuana in his pocket gave Officer P probable cause to arrest him for illegal possession of marijuana. See A.R.S. § 36-2811(H) ("The possession of . . . a registry identification card does not preclude the existence of probable cause if probable cause exists on other grounds."). Cf. A.R.S. § 36-2811 (B)(1) ("a registered qualifying patient . . . is not subject to arrest, prosecution or penalty . . . [f]or the registered qualifying patient's medical use of marijuana pursuant to . . . [the AMMA]." As we recently explained in State v. Cheatham, the AMMA does not decriminalize possession of marijuana for people who do not have medical marijuana cards or negate the plain smell test as an indication of criminal marijuana possession for non-AMMA card holders. 1 CA-CR 14-0072, 2015 WL 4497919, at *3, ¶ 11 (Ariz. App. July 23, 2015). For the purpose of probable cause, we find no meaningful distinction between an officer smelling marijuana and Green admitting to Officer P that he had marijuana in his pocket. See State v. Baggett, 232 Ariz. 424, 428, ¶¶ 17-21, 306 P.3d 81, 85 (App. 2013) (upholding an arrest for possession of marijuana after the officers smelled marijuana in the defendant's possession during a valid traffic stop). Both situations have sufficient indicia of illegal activity to create probable cause. Thus, the search here was incident to a valid arrest.
¶11 As the State argued at the evidentiary hearing, even if Officer P had to ask Green if he had a medical marijuana card before arresting him, the evidence was admissible under the inevitable discovery doctrine. "Illegally obtained physical evidence may be admitted if the State can demonstrate by a preponderance of the evidence that such evidence inevitably would have been discovered by lawful means." State v. Davolt, 207 Ariz. 191, 204, ¶ 35, 84 P.3d 456, 469 (2004). We will affirm the trial court if its ruling was correct for any reasons supported by the record. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986). Green did not have and never claimed to have a medical marijuana card. Whether the inquiry into Green's status under the AMMA was made before or after the arrest would not change the outcome. The evidence would have inevitably been discovered upon Green's arrest and, thus, was properly admitted.
C. The Minute Entry Erroneously Stated That Green Waived His Right to a Jury Trial, But He Was Not Entitled to a Jury Trial
¶12 Although the trial court stated in the sentencing minute entry on May 21, 2014 that Green "knowingly, intelligently and voluntarily waived the right to a trial by jury," our review of the record did not find that the court conducted the necessary colloquy with Green. See Ariz. R. Crim. P. 18.1(b)(1) ("Before accepting a waiver the court shall address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent."); State v. Baker, 217 Ariz. 118, 120, ¶ 8, 170 P.3d 727, 729 (App. 2007) ("We cannot presume a valid waiver of a jury right based on a silent record.").
Page two of the minute entry states: "Count(s) 1: WAIVER OF JURY TRIAL: The Defendant knowingly, intelligently and voluntarily waived the right to a trial by jury and was found guilty after a trial to the court."
¶13 Nevertheless, Green was not entitled to a jury trial after the State redesignated the possession of marijuana charge from a class six felony to a class one misdemeanor. See Stoudamire v. Simon, 213 Ariz. 296, 297-98, ¶¶ 1, 2, 6, 141 P.3d 776, 777-78 (App. 2006). Accordingly, the court's failure to conduct a colloquy before finding that Green voluntarily waived a jury trial was harmless error, but we modify the court's May 21, 2014 minute entry to omit reference to the waiver of a jury trial.
D. The Evidence Presented was Sufficient to Support Conviction
¶14 The State presented sufficient evidence to convict Green. A person shall not knowingly possess marijuana. A.R.S. § 13-3405(A)(1) (Supp. 2014).
We cite the current version of the applicable statute because no revisions material to this decision have since occurred. --------
¶15 Here Green admitted to Officer P that he had "a little bit of weed" in his pocket, and a criminologist confirmed that the substance Officer P removed from Green's pocket was marijuana. Although the trial court admitted Green's statement to Officer P without a voluntariness hearing, no hearing was necessary because the conversation with Officer P was consensual up until the point Green admitted to possessing marijuana at which point the officer considered him under arrest. See State v. Simoneau, 98 Ariz. 2, 7, 401 P.2d 404, 407-08 (1965) ("[W]here no question is presented to the court either by counsel or by the evidence at the trial suggesting that a confession is involuntary, there is no issue of fact to be determined by the court in the absence of the jury and no need for a specific ruling."). There is no evidence that Green was in custody when he made the statement or that the statement was involuntary; he was not restrained, prevented from leaving, or coerced into admitting that he possessed marijuana. The statement was therefore voluntary and the evidence sufficient for conviction.
E. Any Sentencing Issues Are Moot
¶16 The sentence of one year of probation was within that permitted by the statute; however, the conditions of that probation may not be in accord with the sentencing requirements for Green's offense. See A.R.S. §§ 13-707(A)(1) (2010), 13-901.01(A) (making persons convicted of drug possession for personal use eligible for probation). Sentencing requirements under Proposition 200 complement but do not displace other sentencing statutes. State v. Story, 206 Ariz. 47, 50, ¶ 11, 75 P.3d 137, 140 (App. 2003). Section 13-3405(H) requires eight hours of drug treatment or twenty-four hours of community restitution for anyone sentenced to probation for a conviction of misdemeanor drug possession for personal use. However, Proposition 200 limits the imposition of community restitution to second strike offenders. A.R.S. § 13-901.01(F) (giving the court discretion to add additional conditions including community restitution to probation for a second strike).
¶17 Though the statutes appear to conflict, we need not address the issue in this case. Because Green's probation ended on May 21, 2015, and the State has not appealed requesting a harsher sentence or sought to revoke his probation, any issue of possible erroneous probation conditions is moot and not subject to review on appeal. See Scheerer v. Munger, 230 Ariz. 137, 139-40, ¶ 8, 281 P.3d 491, 493-94 (App. 2012) (explaining State's right to appeal illegally lenient sentence not mooted by defendant's service of entire sentence); State v. Hartford, 145 Ariz. 403, 405, 701 P.2d 1211, 1213 (App. 1985) (explaining in appeal after remand for resentencing that defendant's service of entire sentence moots issues of validity of sentence because validity of conviction was not subject to attack on remand).
CONCLUSION
¶18 We have reviewed the record for fundamental error and have found none. The proceedings complied with the Arizona Rules of Criminal Procedure; Green and his attorney were present at all critical stages and Green was given an opportunity to speak at sentencing. The evidence supports the verdicts, and the sentences have already been completed.
¶19 For the reasons stated above, we affirm Green's conviction for possession of marijuana, but modify the sentencing minute entry to remove all reference to a voluntary waiver of a jury trial. Upon the filing of this decision, defense counsel shall inform Green of the status of the appeal and his future appellate options. Defense counsel has no further obligations 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, 684 P.2d 154, 156-57 (1984). Green has thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.