                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

                  THOMAS GLENN MORGAN, Appellant.

                              No. 1 CA-CR 13-0241
                               FILED 3-6-2014


          Appeal from the Superior Court in Maricopa County
             Nos. CR2010-161928-001, CR2008-129836-001
        The Honorable Christine E. Mulleneaux, Judge Pro Tempore

CONVICTION AFFIRMED; SENTENCES AFFIRMED AS MODIFIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra

Counsel for Appellee

Maricopa County Public Denfender’s Office, Phoenix
By Jeffrey L. Force

Counsel for Appellant
                   STATE OF ARIZONA v. MORGAN
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


WINTHROP, Judge:

¶1             Thomas Glenn Morgan (“Appellant”) appeals his conviction
and sentence for one count of theft in Maricopa County Superior Court
Cause No. CR2010-161928-001 (“the 2010 case”), as well as his sentence in
Maricopa County Superior Court Cause No. CR2008-129836-001 (“the
2008 case”). Appellant argues that, in the 2010 case, the trial court (1)
abused its discretion by denying his motion to represent himself at trial
without holding a Faretta 1 hearing; (2) failed to fully credit him for
presentence incarceration; and (3) erroneously ordered him to pay for
DNA testing. For the reasons set forth below, we affirm Appellant’s
conviction in the 2010 case, affirm his presentence incarceration credit of
248 days in that case, modify his sentence in that case by vacating the
order that he pay for DNA testing, and modify his sentence in the 2008
case to reflect 132 days of presentence incarceration credit.

                FACTS AND PROCEDURAL HISTORY 2

¶2            In October and November 2010, Appellant was employed as
a runner by K.O.,3 a sole practitioner Phoenix attorney. Sometime around
Halloween, K.O., who was out of town, instructed Appellant to pick up a
check in the amount of $1330 from an individual in Chandler, Arizona,
and deliver it to a client in Phoenix. The check represented the third and
final payment in a collection case K.O. had resolved on the client’s behalf,
and was to be made out directly to the client. Instead, Appellant

1     See Faretta v. California, 422 U.S. 806 (1975).

2       We view the facts in the light most favorable to sustaining the
jury’s verdict and resolve all reasonable inferences against Appellant. See
State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).

3     We use initials to protect the victim’s privacy. See State v.
Maldonado, 206 Ariz. 339, 341 n.1, ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).



                                       2
                   STATE OF ARIZONA v. MORGAN
                        Decision of the Court

requested that the issuer make the check out to him (as “Thomas Morgan
PC”), and he cashed the check that same day.

¶3            Later that day, Appellant telephoned K.O. and said, “Don’t
worry, everything is going to be all right.” When K.O. asked what he
meant, Appellant explained the check had been “lost,” but he would have
it “reissued,” and “[n]obody is going to get in any trouble.” After this
cryptic conversation, K.O. never heard from Appellant again. When K.O.
returned to Phoenix, she learned what had happened from the issuer of
the check. She also confirmed her client had never received a check for
the final payment and immediately covered the money due him from her
own funds.

¶4            The State charged Appellant with one count of theft of a
value of $1000 or more but less than $2000, a class 6 felony. A trial in
absentia was held, and the jury found Appellant guilty as charged. At
sentencing on March 27, 2013, Appellant stipulated he had six prior felony
convictions. The trial court sentenced Appellant to the presumptive term
of 3.75 years’ incarceration in the Arizona Department of Corrections
(“ADOC”), with credit for 248 days of presentence incarceration.
Immediately after sentencing Appellant in the 2010 case, the trial court
found Appellant in automatic violation of the conditions of his probation
in the 2008 case, revoked his probation, and sentenced him to a
consecutive, presumptive term of 2.5 years’ incarceration in ADOC, with
no credit for presentence incarceration.

¶5           We have jurisdiction over Appellant’s timely appeal
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (West 2014), 4 13-4031,
and 13-4033.

                               ANALYSIS

             I.     Denial of Motion to Represent Self

¶6           On June 12, 2012, a few minutes before trial began and
before the court reporter had set up, Appellant made oral motions to
represent himself and continue the trial date. The only direct record
provided on appeal as to what transpired is contained in the trial court’s
June 12 minute entry, which states in pertinent part:

4     We cite the current version of the applicable statutes unless
changes material to our decision have since occurred.



                                     3
                    STATE OF ARIZONA v. MORGAN
                         Decision of the Court

             Argument is heard on [Appell]ant’s oral Motion to
       Represent Self and Motion to Continue Trial Date.
       [Appell]ant was instructed on 5/17/2012 by Judge Flores to
       put such motions in writing, which [Appell]ant failed to do.

             IT IS ORDERED denying [Appell]ant’s Motion to
       Represent Self and Motion to Continue Trial Date.

According to the minute entry, Appellant informed the court he was
dissatisfied and intended to leave. The court warned Appellant the trial
would proceed in absentia should he choose to leave, and his absence
would be considered voluntary. The court then took a brief recess, and
Appellant left the courtroom.

¶7            When the trial court reconvened with the court reporter
present a few minutes later, Appellant was absent. Defense counsel
advised the court that, during the recess, Appellant had called to see if the
State might still offer him a plea deal, but when the prosecutor declined to
reinstate the previous plea offer, Appellant declared he was “going to the
hospital.” The court also memorialized what had transpired earlier,
stating for the record that Appellant had made “an oral motion to the
Court to represent himself, which the Court denied.”

¶8             On appeal, Appellant argues the trial court abused its
discretion by failing to conduct a Faretta hearing on his oral motion to
represent himself at trial. Having reviewed the record available, we find
no abuse of the trial court’s discretion. See State v. McLemore, 230 Ariz.
571, 575, ¶ 15, 288 P.3d 775, 779 (App. 2012) (stating that this court reviews
for an abuse of discretion the trial court’s finding that a defendant has
waived his right to counsel and the court’s decision denying a defendant
the right to proceed pro se).

¶9             It is well established that a defendant has a constitutional
right to be represented by counsel at trial or to represent himself if he so
chooses. State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985)
(citing Faretta, 422 U.S. at 806; Ariz. Const. art. 2, § 24). A defendant’s
right to waive counsel is subject to a finding that the waiver was
voluntarily and knowingly made and the request was made in a timely
fashion. Id. Normally, a motion to proceed without counsel is timely if it
is made before the jury is empanelled, although some courts have
indicated the motion must be made somewhat in advance of trial. Id. at
412-13, 694 P.2d at 242-43 (citing State v. Sheppard, 310 S.E.2d 173, 189 (W.
Va. 1983) (finding no abuse of discretion in denying a request to exercise



                                      4
                    STATE OF ARIZONA v. MORGAN
                         Decision of the Court

the right of self-representation made on the morning trial was to begin)).
Furthermore, although a defendant’s competence to waive the
constitutional right to counsel is the primary concern when restricting the
free exercise of self-representation, under certain circumstances, concerns
about trial delay and disruption may allow a trial court to limit the
assertion and exercise of the right. McLemore, 230 Ariz. at 576, ¶ 17, 288
P.3d at 780.

¶10             As the party seeking relief, the appellant bears the duty to
prepare the record in such a manner as to allow this court to decide the
questions raised on appeal. State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d
939, 941 (App. 1995). If no report of the evidence or proceedings at trial
was made, an appellant may prepare a statement of the evidence from the
best means available, including the appellant’s recollection, and file it with
the trial court. Ariz. R. Crim. P. 31.8(f). We will not speculate about
matters not in the appellate record; instead, we presume that any missing
portions of the record support the action of the trial court. State v. Zuck,
134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). We will affirm the trial court’s
ruling if it is legally correct for any reason. State v. Perez, 141 Ariz. 459,
464, 687 P.2d 1214, 1219 (1984).

¶11           Appellant does not present us with any record of the
discussion of his oral motion other than the minute entry and the trial
court’s summary as cited above. He did not ask to make a record of the
pretrial discussion before the prospective jury panel was called and trial
began that afternoon, and did not attempt to provide us with his
recollection of that discussion as provided by the rules. We therefore
presume that what transpired during that discussion supports the trial
court’s decision to deny his motion. See id.

¶12           Moreover, the portions of the record we have support an
inference that the trial court denied the motion because it believed
Appellant’s request was made simply in an effort to delay the trial. The
record shows Appellant had requested no fewer than eight previous
continuances, two of them due to his failure to appear on the previously
scheduled first day of trial.

¶13          Initially, trial had been set for May 21, 2012. On May 17,
Appellant made an oral motion to change counsel, arguing that he wished
to hire private counsel experienced in cases involving mental health
issues. The court informed Appellant that he needed to submit a written
motion for substitution of counsel and determine if the attorney would be
ready to go to trial on May 21 because the court would not agree to a


                                      5
                    STATE OF ARIZONA v. MORGAN
                         Decision of the Court

substitution unless new counsel could “certify to the court that she would
be ready for trial on the 21st.” Appellant never submitted a written
motion to substitute counsel. Instead, on May 21 and May 22, Appellant
failed to appear for trial, claiming health issues were responsible.

¶14           A new firm trial date was set for Tuesday, June 12, 2012. On
that date, Appellant made his oral motion to represent himself. After the
trial court denied his motion, Appellant left and failed to appear for the
remaining afternoon proceedings, which included jury voir dire and
preliminary instructions.

¶15          The following day, June 13, Appellant was again not present.
Defense counsel informed the court he had received a fax, ostensibly from
one of Appellant’s physicians, indicating Appellant required “further
testing and medical care” before he could be released from the hospital.
Defense counsel requested a continuance because Appellant had changed
his mind and indicated “he would want to testify in this trial.” The trial
court affirmed Appellant’s absence the day before “was voluntary,” but
stated “[t]oday I’m not so sure,” and asked defense counsel to contact
Appellant’s physician to ascertain how many days Appellant would likely
remain hospitalized. After a brief recess, defense counsel reported he had
spoken with Appellant, who informed counsel he had “learned from the
staff” he would likely remain hospitalized “up to two days.” Believing
Appellant’s health had deteriorated and he was no longer voluntarily
absent from trial, the court continued the trial to the afternoon of Monday,
June 18. However, the court also asked for documentation concerning
Appellant’s asserted health and medical issues, and expressed concern
that Appellant might be “fishing for different doctors at this point.”

¶16           On the morning of June 18, Appellant appeared with
counsel. Appellant presented the court with a card stating he was
scheduled for a medical procedure on June 22, 2012, and he requested a
further continuance of the trial. Noting that “[c]learly the doctor feels that
you can stay out on your own until June 22nd,” the trial court denied the
continuance. Appellant voiced his displeasure with the court’s ruling and
did not appear when trial reconvened in the afternoon.

¶17           After trial resumed that afternoon, the trial court received
faxes, ostensibly from one of Appellant’s physicians. One fax stated in
part: “The stress of trail [sic] duties would be too much [for Appellant] to
bear at this time.” During a recess, the court spoke with the physician,
who declined to discuss Appellant’s medical condition but avowed that
no fax had been sent from his office. The physician affirmed the fax


                                      6
                    STATE OF ARIZONA v. MORGAN
                         Decision of the Court

received by the court was “a falsified note,” and Appellant had “[t]ried to
get our secretaries to fax it from our office.” The remainder of the trial
proceeded in Appellant’s absence.

¶18           The trial court made several statements on the record
indicating the court found Appellant’s various requests were aimed at
delaying the trial. On June 13, the day after the court denied Appellant’s
motions to represent himself and continue the trial, the court noted it
appeared the absent Appellant had been “dragging his feet on trial” and
that when “[h]e was asking for new counsel at the last minute, he was
grasping at straws,” which is why the court had warned him on June 12
that trial would proceed in his absence if he did not appear. Similarly, on
the afternoon of June 18, when Appellant failed to appear after the court
denied his request for a continuance that morning based on his medical
excuse, the court noted, “[I]t’s clear to this Court that he’s trying to delay
his trial.” Given the record before us, we conclude the trial court’s denial
of Appellant’s motion to represent himself on the first day of trial, coupled
with his motion to continue, was based on the court’s concern regarding
the further disruption and delay of the trial that would result if the motion
was granted. Under these circumstances, the trial court’s denial of the
motion was not an abuse of discretion. See McLemore, 230 Ariz. at 576-77,
¶ 17, 288 P.3d at 780-81.

              II.    Presentence Incarceration Credit

¶19            The trial court credited Appellant for 248 days of
presentence incarceration in the 2010 theft case. On appeal, Appellant
argues he is owed 132 additional days of credit, and the trial court erred in
not apportioning the additional credit to his sentence in the 2010 case. The
State concedes Appellant is owed 132 days’ credit, but maintains the
credit is due him in the 2008 case and that we lack jurisdiction over that
case in this appeal.

¶20           Appellant admits he failed to raise this issue before the trial
court and recognizes we are limited to fundamental error review on
appeal. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607
(2005).    Generally, however, “[i]mposition of an illegal sentence
constitutes fundamental error.” State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54
P.3d 368, 369 (App. 2002) (citation omitted).

¶21         A person is entitled to credit for “[a]ll time actually spent in
custody pursuant to an offense until the prisoner is sentenced to
imprisonment for such offense.” A.R.S. § 13-712(B) (emphasis added). As



                                      7
                     STATE OF ARIZONA v. MORGAN
                          Decision of the Court

Appellant acknowledges, the 132 days of credit was due him “for time
previously served on his probation violation” in the 2008 case, a case
unrelated to his 2010 theft case. Therefore, the trial court committed no
error, let alone fundamental error, by not crediting the 132 days to
Appellant’s sentence in the 2010 case.

¶22           Nevertheless, contrary to the State’s argument, we have
jurisdiction over Appellant’s sentencing in the 2008 case because
Appellant’s own timely notice of appeal references both cause numbers. 5
In accord with this court’s authority to correct and reduce an illegal
sentence pursuant to A.R.S. § 13-4037(A), we modify the trial court’s
March 27, 2013 minute entry order in the 2008 case (Maricopa County
Superior Court Cause No. CR2008-129836-001) to reflect that Appellant is
credited for 132 days of presentence incarceration credit in that case.

              III.   Cost of DNA Testing

¶23           As part of Appellant’s sentence for his theft conviction, the
trial court ordered Appellant to submit to DNA testing and “pay the
applicable fee for the cost of that testing in accordance with A.R.S. § 13-
610.” Appellant argues that, although the trial court was required by law
to order him to submit to DNA testing, “there was no legal basis” for its
further order that he pay for that testing. The State concedes that, based
on State v. Reyes, 232 Ariz. 468, 307 P.3d 35 (App. 2013), the trial court
erred in ordering Appellant to pay the cost of DNA testing. We agree.

¶24           In Reyes, we found that “because § 13-610 does not require a
convicted defendant to be assessed the cost of his DNA testing,” the trial
court had no legal basis for doing so under the statute. Id. at 472, ¶ 14, 307
P.3d at 39. That reasoning applies in this case as well. Pursuant to A.R.S.
§ 13-4037(A), we modify Appellant’s sentence in the 2010 case (Maricopa
County Superior Court Cause No. CR2010-161928-001) by vacating the
portion of the sentence requiring Appellant to pay for his DNA testing.

                              CONCLUSION

¶25           For the foregoing reasons, we affirm Appellant’s conviction
in the 2010 case, affirm his presentence incarceration credit of 248 days in

5      We also note the cases appear to have been consolidated at the trial
level and Appellant was sentenced in both cases on the same date in the
same hearing. This court has amended the caption in this case to include
both the 2010 case and sentencing in the 2008 case.



                                      8
                   STATE OF ARIZONA v. MORGAN
                        Decision of the Court

the 2010 case, modify his sentence in the 2010 case by vacating the order
that he pay for DNA testing, and modify the trial court’s March 27, 2013
minute entry order in the 2008 case (Maricopa County Superior Court
Cause No. CR2008-129836-001) to reflect that Appellant is credited for 132
days of presentence incarceration in that case.




                                    :mjt




                                    9
