State v. Chiappetta, 2 CA-CR 2001-0433.

CourtCourt of Appeals of Arizona
Citation107 P.3d 366,210 Ariz. 40
Docket NumberNo. 2 CA-CR 2001-0433.,2 CA-CR 2001-0433.
PartiesThe STATE of Arizona, Appellee, v. Joseph Louis CHIAPPETTA, Appellant.
Decision Date28 February 2005

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Diane M. Acosta, Tucson, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, By Lisa M. Hise, Tucson, for Appellant.



¶ 1 A jury found appellant Joseph Chiappetta guilty of fraudulent scheme and artifice, a class two felony; taking the identity of another, a class five felony; two counts of forgery, class four felonies; and trafficking in stolen property, a class two felony. After the state proved Chiappetta had twelve prior felony convictions, the trial court sentenced him to concurrent, substantially aggravated prison terms, the two longest of which were thirty-five years. On appeal, Chiappetta argues that he was denied his right to a fair and impartial judge and challenges the trial court's denial of his motion for mistrial and his counsel's motion to withdraw from the representation. He also contends the trial court erred by denying his request for a mitigation hearing and that his aggravated sentences must be vacated in light of the United States Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm.

Factual and Procedural Background

¶ 2 While in Florida, Chiappetta met the victim, K., after he responded to Chiappetta's classified advertisement for office equipment and gave Chiappetta his business card. Between March and May of 2000, Chiappetta obtained K.'s social security number, and date of birth, acquired an Arizona driver's license featuring his own photograph and K.'s biographical information, and rented an apartment under K.'s name. Chiappetta also opened several different bank accounts and charge accounts and applied for a car loan using K.'s identity. Chiappetta ultimately made thousands of dollars in purchases using the fraudulent accounts. He was apprehended a few months later after an employee at a jewelry store where he had attempted to purchase some merchandise suspected fraud and telephoned K.'s wife.

¶ 3 Although Chiappetta appeared in the courthouse on the morning of the first day of trial, he left before his attorney arrived and before the proceedings were scheduled to begin. His counsel, with whom he had been in sporadic contact that day, reported to the court that Chiappetta had visited two hospitals, allegedly seeking treatment for "[i]ntense pain in his head," and eventually had gone to "a friend's trailer [to] recuperat[e]." He did not thereafter reappear for the trial.

¶ 4 The trial judge found that Chiappetta had voluntarily absented himself and, throughout the trial, the judge repeatedly asked defense counsel about Chiappetta's whereabouts and ordered counsel to try to contact him. The judge also rejected counsel's offer to stipulate to Chiappetta's identity. Ultimately, the judge ordered defense counsel to telephone Chiappetta and ask him where he was and to tell him he was required to report to the court. Defense counsel objected on the ground that disclosing his client's whereabouts would force him to violate the attorney-client privilege. The court disagreed and again ordered counsel to contact his client to learn his whereabouts.1 Despite repeated attempts throughout the course of the trial, defense counsel advised the court he was unable to locate Chiappetta and the trial concluded without him. ¶ 5 The jury found Chiappetta guilty of all charges. At sentencing, the trial court found as aggravating factors Chiappetta's twelve prior felony convictions; his eleven previous imprisonments and probationary terms; the failure of previous rehabilitative efforts; the financial harm caused to multiple victims over a lengthy time period; and the emotional harm to K. Several potential mitigators were discussed but it appears the trial court did not actually find any. This appeal followed.

Fair and Impartial Judge

¶ 6 Chiappetta first argues that the trial judge was biased against him, which deprived him of a fair trial and negatively affected his sentence. "A party challenging a trial judge's impartiality must overcome a strong presumption that trial judges are "`free of bias and prejudice.'" " State v. Cropper, 205 Ariz. 181, ¶ 22, 68 P.3d 407, 411 (2003), quoting State v. Medina, 193 Ariz. 504,

¶ 11, 975 P.2d 94, 100 (1999), quoting State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, 1225 (1987). "Overcoming this burden means proving `a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants.'" Cropper, 205 Ariz. 181, ¶ 22, 68 P.3d at 411, quoting In re Guardianship of Styer, 24 Ariz.App. 148, 151, 536 P.2d 717, 720 (1975). Moreover,

"[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible."

State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1997), quoting Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474, 491 (1994)


¶ 7 Chiappetta argues that the trial judge's imposition of substantially aggravated prison terms is illustrative of the fact that the judge was prejudiced against him. He insists the judge was looking for "any excuse" to impose those terms, pointing to a number of tense and often heated colloquies with defense counsel throughout the trial. He also notes that, before the sentencing hearing, the judge had commented that he was inclined to impose an aggravated sentence.

¶ 8 We find no merit to Chiappetta's argument. His extensive criminal record amply justified the maximum prison terms and the judge emphasized that factor at sentencing. Moreover, the judge's statement about the sentence it was inclined to impose did not reflect bias; rather, it gave Chiappetta and his counsel notice of the probable outcome in view of the multiple offenses and Chiappetta's significant criminal history. Indeed, in that regard, A.R.S. § 13-702.01(I) provides that, "[t]he court shall inform all of the parties before sentencing occurs of its intent to increase or decrease a sentence pursuant to this section."

¶ 9 Moreover, we cannot say the trial judge demonstrated outright "hostil [ity]" or a "spirit of ill-will" against Chiappetta. Cropper, 205 Ariz. 181, ¶ 22, 68 P.3d at 411, quoting Styer, 24 Ariz.App. at 151, 536 P.2d at 720. Although the judge plainly was frustrated and annoyed with Chiappetta's absence from the trial and with his counsel's recalcitrance, the record does not demonstrate that Chiappetta was denied any of his due process rights to a fair trial and impartial sentencing. See Liteky, 510 U.S. at 555-56,

114 S.Ct. at 1157,

127 L.Ed.2d at 491. ("Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women ... sometimes display.").

Motion for Mistrial and Motion to Withdraw

¶ 10 In a related argument, Chiappetta maintains that the trial court improperly denied his motion for mistrial and his attorney's motion to withdraw as his counsel, both of which were based on the court's alleged interference in the attorney-client relationship. "The trial court has broad discretion in ruling on a motion for mistrial, and failure to grant the motion is error only if it was a clear abuse of discretion." State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995). "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will [otherwise] be thwarted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). We also review a trial court's denial of a motion to withdraw as counsel for an abuse of discretion. See State v. Jones, 185 Ariz. 471, 917 P.2d 200 (1996)


¶ 11 Chiappetta contends a mistrial was required because the court created "an irreconcilable conflict between [Chiappetta] and his counsel by ... constantly placing defense counsel in a position to be at odds with [Chiappetta] and continuously ordering counsel to call [him] ... so that he could be arrested."2 In denying the motion, the trial court reasoned that any deterioration in the attorney-client relationship had no effect on defense counsel's ability to effectively represent his client. The record supports that determination. Counsel thoroughly cross-examined the state's witnesses, argued to the jury that K. had willingly participated in Chiappetta's fraudulent scheme, and effectively challenged the sufficiency of the state's evidence. Indeed, the jury acquitted Chiappetta on one count. We note that all of the exchanges between the trial court and defense counsel occurred either outside of the jury's presence or privately at sidebar. Cf. State v. Armstrong, 208 Ariz. 345, 93 P.3d 1061 (2004)

(reversal not required where rancorous exchanges between counsel were conducted in jury's absence). Because the record does not show that Chiappetta was prejudiced by any friction between court and counsel, we necessarily find that Chiappetta's motion for mistrial on that basis was properly denied.

¶ 12 Likewise, the trial court did not err by denying counsel's motion to withdraw because, again, nothing in the record establishes that counsel's representation of Chiappetta had been compromised. See State v. Henry, 176 Ariz. 569, 863 P.2d 861 (1993)

. Chiappetta has failed to point to anything concrete suggesting that the court's demands affected his representation, beyond the amorphous suggestion that the relationship was thereby "chilled." That Chiappetta reportedly stopped telephoning defense counsel after the trial judge left a message for Chiappetta...

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