State v. Finck
| Decision Date | 05 December 2013 |
| Docket Number | No. 2 CA-CR 2012-0186,2 CA-CR 2012-0186 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MICHAEL EDWARD FINCK, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Appeal from the Superior Court in Pima County
The Honorable Jose Robles, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Joseph L. Parkhurst, Assistant Attorney General, Tucson
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
¶1 After a jury trial, appellant Michael Finck was convicted of four counts of third-degree burglary and one count each of possession of burglary tools, criminal damage, and attempted theft by control. The trial court found Finck had two or more historical prior felony convictions, denied Finck's motion for a new trial, and sentenced him to enhanced, maximum, concurrent prison terms, the longest of which is twelve years. Finck appeals from his convictions and sentences and from the court's subsequent denial of his motion to vacate judgment.
¶2 Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), avowing she has reviewed the record and found no arguable issues to raise on appeal and asking this court to search the record for error. In compliance with State v. Clark, she has also provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." 196 Ariz. 530, ¶ 32, 2 P.3d at 97.
¶3 In a pro se, supplemental brief, Finck argues (1) the trial court erred or abused its discretion in denying his pretrial motions for discovery and in failing to obtain a valid waiver of his right to counsel before granting his motion for self-representation, in violation of Faretta v. California, 422 U.S. 806 (1975); (2) the prosecutor engaged in misconduct by failing to disclose exculpatory material, in violation of Brady v. Maryland, 373 U.S. 83 (1963), by violating other disclosure rules, and by making false statements to the court about evidence in the case; and (3) his court-appointed advisory counsel provided ineffective assistance, in violation "of his right to due process and of his other rights guaranteed by theArizona and United States Constitutions." Because we could not say Finck's Faretta claim was "wholly frivolous," Anders, 386 U.S. at 744, we asked counsel to file supplemental briefs addressing this claim. See Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (). For the following reasons, we vacate the court's criminal restition order but otherwise affirm Finck's convictions and sentences.
¶4 On the night of October 24, 2010, the general manager of Daniel's Moving & Storage reported a possible burglary after finding a huge hole in the wall that had separated Daniel's from a business that occupied an adjacent space in the warehouse. while waiting for police to arrive, the manager noticed an older model pickup truck drive by the front of the warehouse twice; the same vehicle was seen by Pima County Sheriff's Deputy B. Hill, who, along with his canine partner Randy, was first to arrive on the scene.
¶5 After other units had arrived, Hill and Randy searched the interior of the warehouse, and Randy alerted to an area containing stacks of large wooden crates in one of the adjacent businesses. Law enforcement personnel eventually discovered three men hiding in crates in the warehouse; Randall Gray was found in one crate, along with a flashlight and box-cutter, and wesley Wallace and Finck were found in another, along with a flashlight and two pairs of gloves. A third flashlight, a handgun, and a tire iron were also photographed near the crates. All three men were charged with multiple counts. Finck's case was later severed for trial; Gray and Wallace were tried in September 2011, and Finck was tried separately in late February and early March 2012.
¶6 Finck represented himself at trial, assisted by advisory counsel Lawrence Rosenthal. Before resting its case, the state played excerpts of telephone calls Finck had made from the Pima County Jail shortly after his arrest. During the calls, Finck told his girlfriend that he had been with Gray and Wallace and that the police had "caught [him] red-handed."
¶7 After the state rested, Finck testified that he had gone to the warehouse to look at a couch Wallace had proposed to give him in lieu of money he owed Finck. He said he had been accompanied by his friend P.H., who had parked Finck's truck and sometime later had left the scene. Finck said he had entered the warehouse, believing Gray was employed there, and was looking at the couch when Gray said the police were there, and Wallace began brandishing a handgun. He said he had then gone with Wallace and Gray to one of the other businesses in the warehouse complex, where he hid in a crate with Wallace until discovered by police. Finck also admitted having five prior felony convictions.
¶8 In his supplemental pro se brief, Finck raises claims of errors committed by the trial court, misconduct by the prosecutor, and ineffective assistance from his advisory counsel. We address these claims in the context of their subject matter.
¶9 Finck argues he He contends his "waiver of his right to counsel was not valid" because the court failed to advise him of (1) the nature of the charges against him; (2) the possible penalties he faced, "including the correct maximum penalty"; and (3) the "dangers and disadvantages of self-representation."
¶10 He also argues the trial court "did not make a definitive ruling" on his motion to waive counsel and proceed pro se, but he acknowledges "all parties proceed[ed] as if" the court had granted his motion on August 26, 2011. Finally, he maintains there was a ten-day period—between January 27 and February 6, 2012—during which he was neither represented by counsel nor permitted torepresent himself. After thorough review, we agree with the state that the record "supports a finding that Finck knowingly, intelligently and voluntarily chose to represent himself at trial."
¶11 We review for an abuse of discretion a trial court's determination that a defendant has validly waived the right to counsel. State v. Gunches, 225 Ariz. 22, ¶ 8, 234 P.3d 590, 592 (2010). A criminal defendant has a fundamental constitutional right to represent himself. Faretta, 422 U.S. at 817-19; State v. Martin, 102 Ariz. 142, 144, 426 P.2d 639, 641 (1967). A valid waiver of the right to counsel "'must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" State v. Dann, 220 Ariz. 351, ¶ 16, 207 P.3d 604, 612 (2009), quoting Edwards v. Arizona, 451 U.S. 477, 482 (1981).
¶12 Although a defendant "need not himself have the skill and experience of a lawyer" to intelligently choose self-representation, "he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942). Consistent with Faretta, Rule 6.1(c) provides that "[a] defendant may waive his or her rights to counsel . . . in writing, after the court has ascertained that he or she knowingly, intelligently and voluntarily desires to forego them."
¶13 But the Supreme Court has not "prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel"; rather, "[t]he information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88 (2004). "'[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in thecircumstances—even though the defendant may not know the specific detailed consequences of invoking it.'" Id. at 92, quoting United States v. Ruiz, 536 U.S. 622, 629 (2002) (alteration in Tovar); see also United States v. Lopez-Osuna, 242 F.3d 1191, 1199 (9th Cir. 2000) ().
¶14 Similarly, our supreme court has "reject[ed] any suggestion that a specific litany of questions be asked or warnings given in determining whether a waiver of counsel is knowing or intelligent." In re Maricopa Cnty. Juv. Action No. JV-108721 & F-327521, 165 Ariz. 226, 229, 798 P.2d 364, 367 (1990). Thus, "[f]ailing to engage in a particular colloquy with a defendant, failing to warn a defendant of 'every possible strategic consideration' of proceeding pro se, or failing to...
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