State v. Forte

• Decision Date: 31 August 2009
• Docket Number: No. 2 CA-CR 2008-0339.,2 CA-CR 2008-0339.
• Citation: 222 Ariz. 389,214 P.3d 1030
• Parties: The STATE of Arizona, Appellee, v. Jeremiah Marce FORTE, Appellant.
• Court: Arizona Court of Appeals

214 P.3d 1030

222 Ariz. 389

The STATE of Arizona, Appellee, v. Jeremiah Marce FORTE, Appellant.

No. 2 CA-CR 2008-0339.

Court of Appeals of Arizona, Division 2, Department B.

August 31, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By Kristine Maish, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 After appellant Jeremiah Forte pled guilty to aggravated assault with a deadly weapon or dangerous instrument, the trial court suspended the imposition of sentence and placed him on a five-year term of intensive probation. Forte later violated the terms of his probation and, at a disposition hearing at which Forte appeared only via an interactive audiovisual system, the court sentenced him to a mitigated term of 2.5 years' imprisonment. On appeal, Forte argues the court violated his rights to counsel and to be present at sentencing by conducting the hearing without Forte physically present in the courtroom with his attorney. Notwithstanding the procedural irregularities in this case, we affirm Forte's sentence for the reasons set forth below.

Factual and Procedural Background

¶ 2 On May 12, 2008, the state filed a petition to revoke Forte's probation on the grounds he had failed to report to the probation department as ordered and had failed to reside at an approved address, leaving his whereabouts unknown. Forte later appeared in custody at a probation revocation hearing on August 11, 2008, and the trial court found he had violated the terms of his probation as alleged by the state.

¶ 3 The first of three disposition hearings was held on September 5, 2008. Forte was not present at that hearing because he had not been "transported." The trial court reset the hearing for September 8, 2008, and ordered Forte to be transported to it. The next hearing took place a day later than originally scheduled, on September 9, 2008, although the record does not establish why the date was changed. The minute entry from this second disposition hearing reflects Forte was not present because he had "refused transport." After Forte's attorney moved for a continuance, the court ordered the disposition hearing reset to September 10, 2008. The court further ordered, "the Defendant must appear in person and is not allowed to refuse transport."

¶ 4 Forte was not physically present in the courtroom with his attorney during the September 10th hearing but he was present via "Video Court" from jail, meaning he could hear the proceedings and communicate with the judge through audiovisual devices. As the judge explained the situation to Forte, "[Your attorney] is here, you can't see him, but you'll be able to hear him." No attorney for the state appeared at the hearing, and the judge made no findings as to whether Forte had waived any right to be physically present in the courtroom. Nor did the judge set forth on the record why it decided to conduct the sentencing with Forte appearing via video. Instead, at the commencement of the proceeding, the judge asked Forte how he was doing and remarked, "I'm glad that you decided to cooperate because I didn't want [the jail officials] to have to hurt you or anything trying to get you over to the camera." Subsequent communication between defense counsel and Forte was audible in open court and transcribed on the record.

¶ 5 After allowing counsel and Forte to address the court, the judge revoked Forte's probation and sentenced him to a mitigated prison term of 2.5 years, giving him credit for 530 days' served. This appeal followed.

Discussion

¶ 6 Forte now contends that his remote attendance at the disposition hearing ran afoul of the requirements of the Arizona Rules of Criminal Procedure and that his physical absence from the courtroom and inability to communicate confidentially with his attorney violated both his state and federal constitutional rights. Because he raised no objection to the proceeding below, to be entitled to appellate relief Forte must demonstrate that the alleged error was both fundamental and prejudicial, see State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005), or that the alleged error was structural, in which case prejudice is presumed. See State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36 (2009). We first address whether the trial court erred when it conducted Forte's sentencing notwithstanding his physical absence from the courtroom.

Physical Presence at Sentencing

¶ 7 A criminal defendant has the right to be physically present at every critical stage of a trial, United States v. Gagnon, 470 U.S. 522, 525-26, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); State v. Dann, 205 Ariz. 557, ¶ 53, 74 P.3d 231, 245-46 (2003), including a sentencing hearing following the revocation of probation. State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978); State v. Stone, 111 Ariz. 62, 64, 523 P.2d 493, 495 (1974). This right is grounded in the Sixth and Fourteenth Amendments of the United States Constitution, Gagnon, 470 U.S. at 526, 105 S.Ct. 1482; Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.1994), as well as article II, § 24 of the Arizona Constitution. State v. Garcia-Contreras, 191 Ariz. 144, ¶ 8, 953 P.2d 536, 538 (1998). A defendant's physical attendance at sentencing is also required by Rule 26.9, Ariz. R.Crim. P., which states that "[t]he defendant ... shall be present at sentencing." Although the rules of criminal procedure expressly allow defendants to appear at certain hearings by way of interactive audiovisual devices, they do not permit such virtual presence at a sentencing hearing for a felony offense. Ariz. R.Crim. P. 1.6(a), (c)(3).

¶ 8 The state concedes the rules of criminal procedure generally require defendants to be in court physically when they are sentenced for felony crimes. Nevertheless, the state argues "the record strongly suggests ... [Forte] refused to attend in person" and, as a result of defying the judge's orders, he forfeited his right to be present.

¶ 9 A defendant may indeed forfeit his right to attend judicial proceedings if, after being warned by the court, he continues to behave in such a "disorderly, disruptive, and disrespectful" way that a proceeding cannot take place with the defendant present. Allen, 397 U.S. at 343, 90 S.Ct. 1057. Our supreme court has held that extraordinary circumstances—and only extraordinary circumstances—justify a departure from Rule 26.9 and permit sentencing a defendant in absentia. State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). However, we indulge every presumption against the forfeiture of a defendant's constitutional right to be present, Allen, 397 U.S. at 343, 90 S.Ct. 1057; Garcia-Contreras, 191 Ariz. 144, ¶ 14, 953 P.2d at 540, and this presumption does not permit the inference invited by the state on the record before us.

¶ 10 Admittedly, Forte was not an exemplary inmate. As the state points out, his presentence report describes him as engaging in "bizarre and hostile behavior toward the Court during his initial appearance." Yet disruptive behavior only justifies physically excluding a defendant until he signals he is willing to cooperate with the judicial process. See Allen, 397 U.S. at 343, 90 S.Ct. 1057 ("Once lost, the right to be present can ... be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings."). Even though Forte was disruptive at his initial appearance, his physical presence and behavior at the later violation hearing indicated he was willing to cooperate with the process. Thus, because he had demonstrated good behavior at an intervening hearing, his disruptive behavior at an earlier hearing was not, standing alone, a sufficient ground for excluding Forte from the disposition hearing.

¶ 11 The sentencing judge also ordered Forte to appear at the disposition hearing held September 10, 2008. His absence from court on that date, together with the minute entry showing he had "refused transport" to the second disposition hearing, suggests Forte might have intentionally defied the court in an attempt to obstruct the proceedings. We cannot conclude, however, that the mere refusal of transportation by a defendant in custody, in the absence of any further record, is an "extraordinary circumstance[ ]" justifying a departure from the procedure required by Rule 26.9. Fettis, 136 Ariz. at 59, 664 P.2d at 209. The trial court had the means and authority to compel Forte's appearance regardless of whether Forte chose to appear. Cf. State v. Henry, 189 Ariz. 542, 550, 944 P.2d 57, 65 (1997) (court has discretion to utilize measures necessary for orderly sentencing). Even a defendant's decision to willfully avoid a sentencing hearing by becoming a fugitive has not been regarded as an extraordinary circumstance sufficient to justify conducting a sentencing in absentia. State v. Zavala, 136 Ariz. 356, 358 n. 1, 666 P.2d 456, 458 n. 1 (1983); Fettis, 136 Ariz. at 59, 664 P.2d at 209. We therefore conclude that Forte's unexplained refusal to attend, standing alone, is not an extraordinary circumstance justifying a deviation from the normal procedural and presence requirements of Rule 26.9.

¶ 12 Furthermore, we cannot conclude Forte voluntarily waived his right to be physically present at the sentencing. As a matter of constitutional law, a defendant may generally give up his right to be present in court by consent. Allen, 397 U.S. at 342-43, 90 S.Ct. 1057; Garcia-Contreras, 191 Ariz. 144, ¶ 9, 953 P.2d at 539. Under Arizona's rules of criminal procedure, however, it is unclear whether a defendant may elect to attend a sentencing hearing through interactive media or if, instead, a defendant's physical presence in court is...