Opinion
No. 1 CA-CR 10-0891
05-29-2012
STATE OF ARIZONA, Appellee, v. AUGUSTINE VASQUEZ, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-005821-001 DT
The Honorable Joseph C. Welty, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Eleanor S. Terpstra, Deputy Public Defender
Attorneys for Appellant
Phoenix SWANN, Judge
¶1 Augustine Vasquez ("Defendant") timely appeals from his conviction on the charge of sale or transfer of dangerous drugs. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) (in banc), defense counsel advises us that a thorough search of the record has revealed no arguable question of law and requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona on or before January 3, 2012. He has not done so.
¶2 Finding no fundamental error after a thorough review of the record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 On December 4, 2009, Glendale Police Officer Richard Wood was operating undercover in a neighborhood-wide drug investigation. While riding his bicycle along the street, Wood saw an unidentified white male standing outside of a house. Wood approached the man and asked him if anybody was home. The man told Wood that "Augy was inside" and "motioned towards the door that was on the south side of the house." The door led to a "kind of a converted tool shed . . . that was connected to the house."
¶4 Wood knocked on the door, and Defendant answered it. Defendant asked Wood who he was and what he needed. Wood gave Defendant his "street name" and told Defendant that he "was looking for a 20." Another man, Michael DeLeon, was in the room with Defendant. DeLeon asked Wood, "Oh, are you the same person that was here last night with Salina?" Wood replied: "Yes." DeLeon told Defendant, "Oh, he's cool." DeLeon then told Wood that he would try to "hook [him] up."
¶5 DeLeon, who was confined to a wheelchair and whose mobility was severely limited, used a speakerphone to make a call. (Wood testified that DeLeon only seemed to be able to move his hands and needed a control knob to move the wheelchair.) Wood could hear the phone ring, but no one answered it. DeLeon told Wood to give his money to Defendant. Wood handed Defendant a $20 bill. Defendant left the converted tool shed and went into the main house through its front door.
¶6 After two or three minutes, Defendant returned to the converted tool shed. Wood had stepped outside it, and DeLeon remained within; the unidentified white male entered the shed along with Defendant. From where he stood outside the doorway, Wood could see the unidentified white male, DeLeon, and Defendant "huddled" together talking about something. The white male came out and handed Wood a small Ziploc baggy. Later, a criminalist at the Arizona Department of Public Safety found that the baggy contained .22 grams of methamphetamine (a finding to which Defendant stipulated at trial).
¶7 On March 4, 2010, Defendant was charged by indictment with the sale or transportation of dangerous drugs in connection with the December 4, 2009 transaction. The state alleged aggravating circumstances as well as prior historical felony convictions. On August 5, 2010, a twelve-member jury found Defendant guilty of the charged crime. On November 5, 2010, the court found that the state had proven that Defendant had five historical prior felony convictions. It sentenced Defendant to a mitigated sentence of 10.5 years, with presentence incarceration credit of 227 days. Defendant timely appealed. We have jurisdiction under A.R.S. § 12-120.21 and § 13-4033.
DISCUSSION
¶8 We have reviewed the entire record, and we have read the brief written by counsel. Leon, 104 Ariz. at 300, 451 P.2d at 881. In that brief, counsel advises us that there are four issues Defendant thinks should be raised.
¶9 First, Defendant claims that there was insufficient evidence to support a guilty verdict. We will set aside a jury verdict for insufficient evidence only if it is clear from the record "that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).
¶10 Here, there is a hypothesis that supports the jury's verdict. A person may not transport for sale, sell, or transfer "a dangerous drug," a category which includes methamphetamine. A.R.S. §§ 13-3407, -3401(6)(b)(xvii). A person can be guilty of that offense as an accomplice if he aids another in committing the offense or provides another with the means or opportunity to commit it. A.R.S. §§ 13-301, -303(A)(3). The evidence in this case allows one to reasonably hypothesize that the methamphetamine that made its way into Wood's hand was brought from the house by Defendant, and that he was therefore an accomplice in the sale.
¶11 Defendant, though, challenges his culpability as an accomplice by arguing that "if the unidentified male gave Wood drugs, the evidence was insufficient to conclude [Defendant] had knowledge of that fact." We disagree. Defendant's role in the sale began when Wood told him he "was looking for a 20." That phrase, as Wood testified, has a specific meaning "generally understood on the street": a request "for a 20" is a request "for $20 worth of an illicit drug." Wood also testified that Defendant expressed no confusion as to his meaning and showed no bewilderment at being handed a $20 bill. The jury could have reasonably concluded that Defendant knew what Wood was asking for and that he cooperated in making the drug sale happen.
¶12 Second, Defendant argues that his attorney advised against calling DeLeon as a witness, even though the attorney had never spoken to DeLeon. This is essentially a claim of ineffective assistance of counsel. This court does not consider ineffective assistance of counsel claims on direct appeal, regardless of merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be raised in a petition for postconviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. Id.
¶13 Third, Defendant argues that he wanted to take a plea agreement that was offered, but his attorney dissuaded him. A defendant can establish that his lawyer's performance was deficient during plea negotiations by showing that "the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea." State v. Donald, 198 Ariz. 406, 413, ¶ 16, 10 P.3d 1193, 1200 (App. 2000). Here, Defendant has filed no supplementary brief of his own, and counsel's brief only tells us that Defendant claims to have turned down the plea offer "based on assurances from his attorney that he was going to win at trial."
¶14 Even if Defendant's lawyer did express confidence that Defendant would succeed at trial, the record shows that Defendant knew what would happen if he lost. At the Donald hearing, the court established that the five-year plea offer was less than the presumptive sentence Defendant would receive if the jury found him guilty. And the court advised Defendant that the decision to accept or reject the offer was ultimately his. The record reflects that Defendant made the decision to proceed to trial knowing what would happen following a conviction.
¶15 Finally, Defendant complains that his sentence was excessive "in light of the fact that his co-defendant DeLeon received probation." DeLeon's record is not before us; Defendant's record is; and that record shows that Defendant had multiple prior historical felony convictions. Because he had more than two prior historical felony convictions and the court found mitigating circumstances, Defendant was properly convicted for 10.5 years. A.R.S. § 13-703(C), (J); State v. Diaz, 224 Ariz. 322, 325, ¶ 16, 230 P.3d 705, 708 (2010) (holding that despite the methamphetamine-specific sentencing provisions in A.R.S. § 13-3407, "the State may pursue enhanced penalties against a repetitive offender under A.R.S. § 13-703").
CONCLUSION
¶16 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All proceedings were conducted according to the Arizona Rules of Criminal Procedure, the evidence presented at trial supports the verdict, and Defendant was sentenced within the parameters of the law. Accordingly, we affirm Defendant's conviction and sentence. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.
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PETER B. SWANN, Presiding Judge
CONCURRING:
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MICHAEL J. BROWN, Judge
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JON W. THOMPSON, Judge