State v. Suniga
| Citation | 701 P.2d 1197,145 Ariz. 389 |
| Decision Date | 05 February 1985 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Parties | STATE of Arizona, Appellee, v. Arthur John SUNIGA aka Arthur J. Suniga, Appellant. 5798, 1 5799. |
| Court | Court of Appeals of Arizona |
Appellant filed this appeal from his convictions on two counts of aggravated assault, Class 3 dangerous felonies, with two prior convictions, and his concurrent sentences of 11.5 years on each count. He presents three issues on appeal: (1) whether the trial court erred in proceeding with jury selection without first finding that appellant had voluntarily absented himself from trial; (2) whether the trial court abused its discretion in finding that appellant voluntarily absented himself from trial; (3) whether the trial court erred in modifying appellant's sentences.
The evidence presented at trial, taken in a light most favorable to sustaining the verdict, established that the appellant stabbed one Gary Ladd and assaulted one John Shearer with a knife. The jury found the appellant guilty of two counts of aggravated assault. The jury also found the allegation that appellant had twice previously been convicted of felonies to be true. Appellant, who had been tried in absentia, was arrested on a bench warrant, and was present for sentencing. At sentencing, the trial court found several aggravating circumstances including the use of a deadly weapon, the injuries sustained by the victim, and appellant's criminal record. The trial court sentenced appellant to mitigated concurrent terms of 10.5 years imprisonment. The presumptive sentence for a Class 3 dangerous felony with two prior convictions was 11.25 years. The prosecutor informed the trial court that the presumptive term was 11.25 years, and that the sentence imposed was less that the presumptive term. The trial court then found mitigating factors as follows: Appellant had previously been represented by ineffective counsel, and appellant had some involvement with drugs. The trial court refused to change the sentence which it had imposed.
On December 1, 1981, the state filed a motion to modify the sentences pursuant to Rule 24.3, Arizona Rules of Criminal Procedure, on the ground that the sentences imposed were unlawful. Appellant filed a notice of appeal on December 3, 1981. On January 15, 1981, the trial court vacated the sentences which had been imposed and granted the state's motion to modify the sentences. The court found the existence of one aggravating circumstance, appellant's prior criminal record, and sentenced appellant to serve aggravated concurrent terms of 11.5 years imprisonment. The court found no mitigating circumstances.
For his first argument on appeal, appellant contends that the trial court erred in selecting the jury without first making a finding that he had voluntarily absented himself from trial. Rule 9.1, Arizona Rules of Criminal Procedure, establishes an inference that an absence from a proceeding "is voluntary if the defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear." The rule creates an inference and does not require the trial court to make a finding that a defendant has voluntarily absented himself before proceeding. In State v. Fristoe, 135 Ariz. 25, 658 P.2d 825 (App.1982), we held that the trial court did not abuse its discretion in failing to hold a hearing and make a formal finding that the defendant had voluntarily absented himself from trial prior to trying him in absentia. We find that the trial court did not abuse its discretion in this case in refusing to find that appellant's absence was voluntary prior to empaneling the jurors.
Appellant also contends that the trial court abused its discretion in making an inference, pursuant to Rule 9.1, that appellant's absence from trial was voluntary prior to the presentation of any evidence. The record reveals that appellant received and signed a release order indicating that he had a right to be present at his trial, and that if he did not appear, the trial would proceed in his absence. On July 14, 1981, defense counsel informed the court that he had mailed a letter to appellant on July 8, 1981. Appellant acknowledged to defense counsel that he had received the letter. The letter indicated that if the defendant failed to appear for trial, the trial would proceed in his absence, a bench warrant would be issued, and he could be convicted in his absence. Defense counsel spoke to appellant on Friday, July 10, 1981, and informed appellant personally that the trial date had been changed from July 13, 1981 to Tuesday, July 14, 1981. At that time, appellant informed counsel that he would be present. Appellant was not present for trial on July 14, 1981. Defense counsel informed the court that he did not have an explanation for appellant's absence. Although appellant asserts that he was informed merely that the trial date was "Tuesday", and that he had no actual notice that the trial would begin July 14, 1981, the record is clear that defense counsel actually informed appellant that his trial would commence on July 14, 1981. Counsel for appellant had no explanation for appellant's absence. Based on the foregoing, the trial court inferred, pursuant to Rule 9.1, that appellant's absence from trial was voluntary.
Where the record indicates that a defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence, "the trial court may presume the absence is voluntary and the burden is on the defendant to demonstrate otherwise." State v. Fristoe, 135 Ariz. at 34, 658 P.2d at 834; State v. Bohn, 116 Ariz. 500, 503, 570 P.2d 187, 190 (1977). In this case, defense counsel offered no evidence to suggest that appellant's absence was anything but voluntary, and affirmatively stated on the record that he had no explanation for appellant's absence. Under these circumstances, we find that the trial judge was entitled to infer that appellant's absence from trial was voluntary. That conclusion is bolstered by the fact that when the appellant was arrested on the bench warrant and brought to Arizona for sentencing, he admitted that he had gone to California on the advice of his friends and family, and because he had a conflict with his attorney. See State v. Fristoe, supra.
For his final issue on appeal, appellant contends that the trial court did not have jurisdiction on January 15, 1982, to modify the sentences it had imposed on him on November 20, 1981. Alternatively, he argues that if the trial court did have jurisdiction to modify the sentences, it abused its discretion in so doing. We agree that it was improper for the court to reimpose and increase the sentence because the trial court was without authority to do so.
The trial court sentenced appellant on November 20, 1981, to serve concurrent terms of 10.5 years imprisonment. The state filed a motion to modify the sentences pursuant to Rule 24.3, Arizona Rules of Criminal Procedure, on December 1, 1981, and alleged that the sentences imposed were unlawful on the grounds that the trial court allegedly did not set forth on the record any mitigating circumstances which it found to be true, nor did the trial court make a finding that the mitigating circumstances outweighed the aggravating circumstances, as required by A.R.S. § 13-702(C) and (D). The state also argued that the circumstances presented to the trial court by defense counsel (refusal of the state to plea bargain) could not reasonably be considered to be mitigating circumstances. On December 3, 1981, appellant filed his notice of appeal. On January 5, 1982, the record on appeal was filed in this court. On January 15, 1982, the trial court granted the state's motion and resentenced appellant to aggravated concurrent terms of 11.5 years on each count.
The threshold question presented is whether the perfection of the appeal prior to the trial court's modification of sentence divested the trial court of jurisdiction to rule on the previously filed motion for modification of sentence. Rule 24.3 provides:
The court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant's appeal, if any, is filed.
The Comment to the rule provides in pertinent part:
This rule allows the court to correct an unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and pronouncement of sentence, but before the perfection of the defendant's appeal, whichever is sooner. [Emphasis added.]
Rule 31.11, referring to perfection of the appeal provides:
No new matter, other than a petition for post-conviction relief not precluded under Rule 32.2, may be filed in the trial court by any party to an appeal later than 15 days after the record on appeal has been filed.
The Comment to Rule 31.11 provides, in pertinent part:
Perfection, under this section, merely designates to what court new matters relating to the appeal must be addressed. It does not remove the trial court's jurisdiction to decide motions filed before the cut-off date, or petitions for post-conviction relief based upon issues which are not raisable on appeal and were not raised in a post-trial motion. See Rules 24.2; 24.3; 32.1; 32.2. Thus a Rule 24 motion which was filed before perfection may be decided by the trial court after perfection whether or not the appeal has been stayed under Rule 31.4(a). [Emphasis added.]
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State v. Walker
...The court thus was able to consider whether the reasons for Defendant's absence constituted an excuse. See State v. Suniga, 145 Ariz. 389, 392, 701 P.2d 1197, 1200 (App.1985) (insufficiency of defendant's proffered excuses supported finding of voluntary absence). Defendant's availability to......
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