State v. Kummer
| Decision Date | 03 February 2015 |
| Docket Number | No. 1 CA-CR 13-0739,1 CA-CR 13-0739 |
| Parties | STATE OF ARIZONA, Appellee, v. JAMES BRIAN KUMMER, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Maricopa County Public Defender's Office, Phoenix
By Terry Reid
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
¶1 James Kummer appeals his convictions and sentences for burglary in the first degree, kidnapping, violent sexual assault, attempted sexual assault, and assault. Kummer's defense counsel has searched the record on appeal and asserts having found no arguable question of law that is not frivolous. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel asks this Court to search the record for fundamental error. Kummer was granted an opportunity to file a supplemental brief in propria persona, which he elected to do. After reviewing the record, and examining the issues raised by Kummer within his supplemental brief, we find no reversible error. Accordingly, Kummer's convictions and sentences are affirmed.
¶2 On June 23, 2007, at approximately 6:30 a.m., S.P.L. was alone in her apartment and getting ready for work. She was suddenly overcome by a feeling she was no longer alone, and stepped out of the bathroom to find a man standing in her living room. The man was wearing a black ski-mask that covered his entire face and attempting to put on gloves. Upon seeing S.P.L., the man dropped his gloves, picked up a gun he had placed on a sofa, gestured to S.P.L. to remain quiet, and told her "no hurt" in Spanish. He then grabbed her, tied her hands behind her back with plastic zip-ties, and wrapped masking tape over her eyes and mouth.
¶3 The man then led S.P.L. into an adjoining bedroom, where he closed and locked the door. Once in the room, the man tore her clothing and fondled her breasts. The man also attempted to remove S.P.L.'s pants, but she successfully resisted. After struggling for approximately 10 to 15 minutes, S.P.L. was able to remove the tape from her mouth and scream for help. In an attempt to silence S.P.L., the man shoved the tape into her mouth.
¶4 By that time, S.P.L.'s screaming had alerted her neighbor, who came to S.P.L.'s bedroom window to investigate. Apparently aware other people were present, the man struck S.P.L. on the forehead with his gun,which caused a laceration and rendered her unconscious, and left the apartment. After regaining consciousness, S.P.L. managed to escape her locked apartment with her hands still tied behind her back and went to her neighbor's apartment, where she called the police. Phoenix Police responded, eventually escorting S.P.L. back to her apartment to retrieve a shirt, at which time she noticed her purse, containing a bottle of water, her identification, and about $150, was missing.
¶5 In the course of the investigation, multiple items were taken into custody by Phoenix Police, including the gloves and zip-ties left at the apartment and the tape that had been wrapped around S.P.L.'s head. Subsequent testing showed DNA collected from the left glove matched Kummer, and DNA collected from the right glove and tape was consistent with Kummer's DNA profile. It was later discovered that Kummer's girlfriend at the time of the attack lived in the same apartment complex.
¶6 Kummer was ultimately indicted on one count of burglary in the first degree (Count 1), one count of kidnapping (Count 2), one count of violent sexual assault (Count 3), one count of attempted sexual assault (Count 4), one count of aggravated assault (Count 5), and one count of armed robbery (Count 6).
¶7 Prior to trial, the State sought to admit evidence of a 1992 sexual assault against L.R., to which Kummer pleaded guilty, toward demonstrating Kummer "had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c). Following oral argument,2 the trial court found the requirements of Rule 404(c) had been satisfied, and allowed the State to offer the evidence at trial.
¶8 Following a thirteen-day trial, a jury found Kummer guilty of Counts 1 through 4 as charged, and of the lesser included offense of assault on Count 5. The jury was unable to reach a verdict on Count 6, which was subsequently dismissed.
¶9 At sentencing, Kummer admitted to three prior felony convictions. The State also alleged three aggravating factors — emotional harm, physical harm and use of a deadly weapon. Kummer waived his right to have the aggravating factors tried to a jury, and the trial court foundthe State had proven the emotional harm factor beyond a reasonable doubt and concluded the jury's verdicts on Counts 1 through 3 necessarily showed Kummer used a gun in the commission of the crimes. Accordingly, Kummer was sentenced to a presumptive term of 15.75 years' imprisonment on Count 1, an aggravated term of 20 years' imprisonment on Count 2, the statutorily required imprisonment term of natural life without the possibility of parole for 25 years on Count 3, a presumptive term of 11.25 years' imprisonment on Count 4, and a presumptive term of six months on Count 5. The sentences were set to run consecutively, except for Count 4, which was set to run concurrently with Count 2, and Count 5, which was set to run concurrently with Count 1. The trial court awarded Kummer 1,077 days of presentence incarceration credit on Counts 1 and 5.
¶10 Although defense counsel asserted he found no arguable question of law that is not frivolous, the opening brief hints at possible error surrounding Kummer's waiver of his right to have the jury determine whether aggravating circumstances existed, and his admission of prior felony convictions. Given the purpose of Anders appeals, we address counsel's implicit concerns. See State v. Clark, 196 Ariz. 530, 535-36, ¶¶ 22-24, 2 P.3d 89, 94-95 (App. 1999) () (citing Penson v. Ohio, 488 U.S. 75, 81-83 (1988)). As Kummer did not object to these proceedings below, our review is for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 22, 115 P.3d 601, 608 (2005). Under this standard, any error must be fundamental and have caused Kummer prejudice. State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013) (quotations and citations omitted).
¶11 With regard to waiver, the opening brief states that "[o]ther than his right to a jury determination of the facts beyond a reasonable doubt, [Kummer] was not advised of his constitutional rights." A defendant has the constitutional right to have "any fact that increases the penalty for a crime beyond the prescribed statutory maximum," including allegations of aggravating circumstances, "'submitted to a jury, and proved beyond a reasonable doubt.'" See State v. Brown, 212 Ariz. 225, 229, ¶ 19, 129 P.3d 947, 951 (2006) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490(2000)). A defendant may choose to waive this right, but may only do so "with consent of the prosecution and the court." Ariz. R. Crim. P. 18.1(b); see also Ariz. Rev. Stat. (A.R.S.) § 13-3983;3 State v. Durham, 111 Ariz. 19, 20, 523 P.2d 47, 48 (1974). Prior to accepting a waiver, the trial court must "address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent." Ariz. R. Crim. P. 18.1(b)(1); State v. Baker, 217 Ariz. 118, 120, ¶ 8, 170 P.3d 727, 729 (App. 2007). "The pivotal consideration in determining the validity of a jury trial waiver is the requirement that the defendant understand that the facts of the case will be determined by a judge and not a jury." State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333 (1991) (citations omitted).
¶12 The record reflects Kummer was advised by the trial court of his right to have the alleged aggravating circumstances submitted to a jury, and that the allegations would have to be found beyond a reasonable doubt. Additionally, the court explained to Kummer the sentencing consequences that may result if the allegations were proven. After being advised, Kummer indicated he understood the ramifications, but wished for the court to make the decision. In response to further questioning by the court, Kummer denied: (1) taking any medicine, drugs, or alcohol within the preceding 24 hours, (2) being promised anything in exchange for his waiver, or (3) being threatened into waiving his right. Kummer also stated he had sufficiently discussed his decision with defense counsel. Given this colloquy, the court found Kummer's waiver was knowing, intelligent and voluntary.
¶13 Kummer was advised of his right to a jury trial, the burden of proof, and the sentencing consequences of an affirmative finding. The trial court also specifically explained that his waiver would enable the court to make the findings rather than requiring a consensus of the 12-person jury. On this record, we find no error, fundamental or otherwise, in the trial court's acceptance of Kummer's waiver of his right to a jury determination of the allegations of aggravating circumstances.
¶14 The opening brief also implies the trial court erred in accepting Kummer's admission of three prior felony convictions without...
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