Opinion
No. 1 CA-CR 10-0590
12-15-2011
STATE OF ARIZONA, Appellee, v. PAUL DOUGLAS WEGELE, 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 Attorney 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(Not for Publication -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. CR2008-162645-001 DT
The Honorable Glenn M. Davis, 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
Attorney for Appellant
Phoenix
DOWNIE, Judge
¶1 Paul Douglas Wegele timely appeals his convictions for first degree murder and burglary in the second degree. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asks that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Wegele did not file a supplemental brief in propria persona, though defense counsel has listed issues that Wegele would like reviewed. On appeal, we view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982).
FACTS AND PROCEDURAL HISTORY
¶2 Police officers responded to victim J.B.'s residence after a 911 call and saw Wegele in the home. When they knocked on the door and rang the doorbell, no one answered. They searched the perimeter and found a door to the house had been kicked in. An officer opened the door and saw blood and J.B.'s body in the kitchen. J.B. had been stabbed twice in the back, once through the hand, and once in the neck. Officers found Wegele in a bedroom. Wegele had blood on his hands and forehead. Officers searched J.B.'s home and found a backpack containing Wegele's personal items and a bloody knife behind the kitchen garbage can.
¶3 Wegele was indicted for first degree murder, a class 1 dangerous felony (count 1); and burglary in the second degree, a class 3 dangerous felony (count 2). Wegele moved for an evaluation pursuant to Rule 11, Arizona Rules of Criminal Procedure ("Rule"). Both evaluators deemed Wegele competent, and the court found that he understood the proceedings and was able to assist in his own defense.
¶4 A jury trial ensued. A.B., J.B.'s neighbor, testified that about a week before the incident, J.B. told her that Wegele would be staying with him. On the night of the incident, however, J.B. told Wegele to leave. Wegele left, but returned, kicked in the door, and confronted J.B. Investigators testified that the knife found at the scene was consistent with the type of instrument that caused J.B.'s death. They further testified that J.B.'s blood was on the knife blade and Wegele's forehead; Wegele's blood was on the knife handle. At the conclusion of the state's case-in-chief, Wegele moved for a judgment of acquittal pursuant to Rule 20. The motion was denied.
¶5 Wegele presented Dr. Johnson and Dr. Youngjohn to support his insanity defense. Both doctors testified that Wegele suffered from schizophrenia and that he was unable to know right from wrong at the time of the offense. Dr. Bayless testified for the State and opined that Wegele was malingering and that he knew what he was doing when he killed J.B.
¶6 The jury found Wegele guilty on both counts. Wegele was sentenced to life imprisonment with the possibility of parole after 25 years on count 1, and a concurrent term of 7.5 years on count 2, with 631 days of pre-sentence incarceration credit on both counts. Wegele timely appealed.
DISCUSSION
¶7 We have read and considered the briefs submitted by Wegele's counsel and have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentences imposed were within the statutory range. Wegele was present at all critical phases of the proceedings and was represented by counsel. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process.
I. Jury Instruction
¶8 According to Wegele, the jury should have been instructed that finding him guilty except insane would result in his hospitalization. In a criminal trial, though, the jury's exclusive function is to determine whether the defendant is guilty or not guilty. State v. Koch, 138 Ariz. 99, 105, 673 P.2d 297, 303 (1983). Jury instructions should not address the subject of punishment, except to advise the jury not to consider it. Id.
II. Ineffective Assistance of Counsel
¶9 Next, Wegele claims his counsel was ineffective because he should have challenged Dr. Bayless's opinion and because he "repeatedly told [Wegele] he would be going to a hospital." Ineffective assistance of counsel claims must be brought in proceedings pursuant to Rule 32. "Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of merit." State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
III. Other Matters
¶10 Defense counsel's brief lists, without elaboration, other issues which his client wishes to raise that we do not specifically address. For example, Wegele claims he is not competent for the "direct appeal process." He also claims that Magellan Health Services should have diagnosed him as seriously mentally ill, so he would have received Section 8 housing and would not have been in a position "where he was ill and felt pressured for sexual favors by the victim." These claims are undeveloped, lack legal authority, were not raised below, and would not constitute fundamental error in the trial proceedings. See State v. Cookus, 115 Ariz. 99, 104, 563 P.2d 898, 903 (1977) ("Fundamental error aside, general allegations without specific contentions or references to the record do not warrant consideration on appeal.") (citations omitted). To the extent we understand the additional issues listed, we have independently reviewed the record for any fundamental error relating to them, but we have found none.
CONCLUSION
¶11 We affirm Wegele's convictions and sentences. Counsel's obligations pertaining to Wegele's representation in this appeal have ended. Counsel need do nothing more than inform Wegele of the status of the appeal and his future options, unless counsel's review reveals 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). On the court's own motion, Wegele shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
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MARGARET H. DOWNIE,
Presiding Judge
CONCURRING:
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PETER B. SWANN, Judge
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DONN KESSLER, Judge