State v. West

• Decision Date: 21 May 1992
• Docket Number: No. 1,CA-CR,1
• Citation: 173 Ariz. 602,845 P.2d 1097
• Parties: STATE of Arizona, Appellee, v. William David WEST, Appellant. 89-1242.
• Court: Arizona Court of Appeals

Page 1097

845 P.2d 1097

173 Ariz. 602

STATE of Arizona, Appellee, v. William David WEST, Appellant.

No. 1 CA-CR 89-1242.

Court of Appeals of Arizona,

Division 1, Department B.

May 21, 1992.

Review Denied March 2, 1993.

[173 Ariz. 604] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Div., and Diana P. Stabler, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Paul C. Klapper, Deputy Public Defender, Phoenix, for appellant.

OPINION

JACOBSON, Judge.

This appeal was originally filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and defendant filed a pro per supplemental brief. After reviewing the record, this court sua sponte noted numerous discrepancies in the verdict and sentencing transcripts and minute entries. We issued an order suspending the appeal and revesting jurisdiction in the trial court to hold hearings for the purpose of clarifying and correcting the record, and then allowing rebriefing. After hearings and entry of an order clarifying the record, defense counsel again filed an Anders brief, defendant filed another pro per supplemental brief, and the state responded. At this procedural juncture, we address the issues raised by defendant in both sets of supplemental briefs, and search the record for fundamental error pursuant to A.R.S. § 13-4035. Although we find no error that would require reversal of defendant's convictions, we find inconsistencies in the record that require this matter to be remanded once more for a redetermination of the amount of restitution. As to other inconsistencies that appear in the record, we resolve those by modification of several counts of defendant's convictions.

Facts and Procedural Background

Defendant was charged by indictment with one count of fraudulent schemes and artifices, a class 2 felony, thirty counts of theft, class 3 felonies, and one count of theft, a class 4 felony. The state alleged that most of these counts were repetitive pursuant to A.R.S. § 13-604 and State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980).

Most of the charges arose out of defendant's sales in 1986 and 1987 of the Houston Eight Tracker, an electronic device that allegedly allowed owners of television satellite dishes to unscramble cable station video broadcasts. Through his sole proprietorship, Weststar, defendant promoted the sale of this device to elderly residents of Sun City to whom he had previously sold satellite dishes in 1984 and 1985. Most of the counts involved customers who had paid defendant for the device and had never received it.

Defendant apparently ran a successful business selling satellite dishes until early 1986, when the cable industry began scrambling its transmissions. In 1986, defendant began offering his customers an upgrade of their existing systems, to include the installation of the Houston Eight Tracker. Many of the customers paid between $1,500.00 and $2,500.00 for the system, which defendant never delivered. Defendant also experienced financial problems in his business due to difficulties with the Internal Revenue Service, and eventually went out of business. He was discharged in bankruptcy in 1988. Many of the victims in this criminal prosecution were listed as creditors whose debts were discharged.

Defendant entered into a stipulation with the state to waive a jury trial in exchange for the state's agreement to dismiss the allegations of Hannah priors. Defendant executed a waiver of trial by jury, and the trial court, after addressing defendant in open court, found the waiver was knowing, voluntary, and intelligent. See Rule 18.1(b), Arizona Rules of Criminal Procedure.

Prior to trial, the parties entered into a stipulation regarding the elements of certain counts of the indictment, including victims' names, dates and amounts paid, and an admission that those victims never received the merchandise paid for. Prior to trial, the state moved to dismiss counts 8, 10, and 16, for the reason that they could not find the victims or they were deceased. The trial court dismissed those counts with prejudice on June 26, 1989.

At trial, witnesses testified as to defendant's business practices, and other evidence was admitted, including evidence of defendant's gambling expenditures during the time that he was receiving funds from the victims.

At the close of evidence, and after denying defendant's Rule 20 motion, the trial court orally announced its "verdict" on July 5, 1989. The court found defendant "not guilty" of counts 8, 10, and 16 (the three counts that had previously been dismissed). The court also amended count 23 by reducing the amount of the theft from $2,120.00 to $2,000.00, to reflect the stipulated evidence regarding that count. The transcript of that hearing, however, did not reflect that the court found defendant guilty of any of the remaining counts, although the minute entry from that date indicates that the court found defendant guilty of 28 counts, but not including count 15. The court issued a nunc pro tunc order on July 12, 1989, to include count 15 in the previous minute entry.

At a hearing on August 8, 1989, the court denied defendant's post-trial motion for a judgment of acquittal or new trial, and also denied defendant's motion for findings of fact and conclusions of law, ruling as follows:

I don't think I have any notes any more that I made during the course of trial so I really need to go back now and try to recapture everything that I did when I was deciding the case. I know I took the exhibits, if I remember the case correctly, home over the week end and reviewed them and made notes and threw those notes away when I returned. I am, I believe, unable in this situation to make a finding of fact and conclusion since it is not a civil case. For that reason I deny your motion.

At sentencing, the transcript indicates that the court entered its judgment of guilt on counts 2 through 8, 9, 11 through 15, 17 through 23, 26, 27, and 32, omitting counts 24, 25, 28, 29, 30, and 31, and erroneously entering judgment on count 8, which had been dismissed. The minute entry, however, contains no sentence for counts 8 or 11, but includes sentences for the counts omitted from the transcript. The court suspended imposition of sentence and place defendant on seven years probation on the class 2 felony, five years probation on the class 3 felonies, and four years probation on the class 4 felony, to be served concurrently. The transcript indicated that the court also ordered defendant to pay restitution in the amount of $64,682.85 to the victims, while the minute entry ordered defendant to pay $64,782.85, although the individual amounts itemized on the minute entry do not total either of these amounts, and count 23 includes $375.00 more than the stipulated loss and amended count regarding that victim. The court also ordered that defendant pay $100.00 per count to the victim's compensation fund, although the transcript indicates a total amount of $700.00 to this fund and the minute entry orders a total of $2,900.00 to the fund.

Based on these discrepancies, this court ordered a remand for clarification. Subsequently, the trial court held two hearings for that purpose on October 24 and 29, 1990, at which the court took testimony from the court reporter who had transcribed the proceedings, and counsel made avowals to the court regarding their recollections of the events at the verdict and sentencing hearings. At the first hearing, the prosecutor was not present because he had not received a minute entry regarding the hearing, and the court telephonically contacted him. The prosecutor indicated that his sentencing notes indicated that defendant was convicted on all counts except 8, 10, and 16, which were dismissed. However, the prosecutor's recollection of the date of the court's verdict differed from the date in the court file and the court reporter's notes. Defendant's appellate counsel stated that, although he was "not too comfortable with what [he] did in the appeal," he had contacted the court reporter prior to filing the appeal and notified her that the transcripts were not correct. The defense counsel who was present at the verdict stated that he did not make any notes in the public defender's case file regarding on which counts defendant was convicted. Other defense counsel, who was present at sentencing, stated that he had not reviewed the transcript of the verdict prior to sentencing, and just "assumed" that defendant was found guilty of the counts that had not been dismissed. The court reporter testified that she used several scopists in transcribing her notes, and did not do the final proofreading of the transcripts so that errors slipped through. She apparently transcribed the court's word "through" as a numerical "three" when reporting the counts.

After these hearings, the court made the following findings:

The record in this case, both minute entries and transcripts, are atrocious. It appears that all concerned were faulty in tracking and making a proper record. The exception was the Deputy Maricopa County Attorney, Mr. Larry Morehouse.

Trial counsel for the defendant, Mr. Harrington and Mr. Walz, stated that they made no record at all of the counts on which their client was convicted or acquitted. Mr. Walz explained that this was one of the problems of having "coverage" attorneys. Even though he was not the trial counsel, he appeared for Mr. West at the time of Sentencing.

The clerk in this case made several errors on the minute entry which compounded other errors made.

This Court by failing to diligently review minute entries also contributed to and compounded the error and discrepancies.

The court reporter by failing to properly proofread and/or accurately transcribe or report proceedings also contributed to and caused numerous errors in the record.

The court then concluded that the corrected record...