                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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.

                   RICHARD JOHN CARRIER, Appellant.

                             No. 1 CA-CR 13-0467
                              FILED 11-04-2014


           Appeal from the Superior Court in Maricopa County
                          No. CR2012-005791
                 The Honorable Robert E. Miles, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Adams
Counsel for Appellant
                            STATE v. CARRIER
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Margaret H. Downie joined.


K E S S L E R, Judge:

¶1             Defendant-Appellant Richard John Carrier (“Carrier”) was
tried and convicted of two counts of theft of means of transportation and
one count of criminal trespass in the second degree. The superior court
sentenced him to 11.25 years’ imprisonment. Counsel for Carrier filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to
raise, counsel requests that this Court search the record for fundamental
error. Carrier has submitted a supplemental brief in propria persona, raising
the following issues: (1) that the evidence presented at trial is insufficient to
sustain the verdict, and (2) that the superior court and advisory counsel
violated Carrier’s Sixth Amendment right to self-representation by
conducting pre-trial proceedings in Carrier’s absence, without his consent.
For the reasons that follow, we affirm Carrier’s conviction and sentence.

               FACTUAL AND PROCEDURAL HISTORY

¶2            After noticing a commercial vehicle that appeared to have had
its commercial markings painted over with fresh paint, Phoenix Police
Officer R.C. (“Officer R.C.”) pulled his motorcycle in front of the
commercial vehicle. Officer R.C. dismounted his motorcycle, approached
the commercial vehicle, and instructed the driver to follow him to a nearby
street in order to conduct a commercial vehicle inspection. However,
Officer R.C. noticed the vehicle was not following, made a U-turn, and saw
the commercial vehicle travelling at a high rate of speed in a different
direction.

¶3            When Officer R.C. caught up with the commercial vehicle, it
was off the side of the road with the driver’s side door open. No one was
inside the vehicle. A witness told Officer R.C. that the driver had run north,
into a fenced commercial yard, equipped with surveillance cameras. After
running the DOT registration and contacting the owners, Officer R.C. and
another responding officer discovered that the commercial vehicle had
been stolen from Sedona Bottling Company. Shortly thereafter, a canine


                                       2
                            STATE v. CARRIER
                            Decision of the Court

unit arrived. The canine unit located Carrier in Roadrunner Towing’s
commercial yard and pulled him out from under a car, covered with a tarp.

¶4           Carrier was charged with two counts of theft of means of
transportation and one count of criminal trespass. Carrier waived his right
to an attorney and to a jury trial. The superior court appointed advisory
counsel for him and found both of these waivers to be made by Carrier
knowingly, intelligently, and voluntarily. After a four day bench trial, the
court convicted Carrier on all counts and sentenced him to 11.25 years’
imprisonment for each count of theft of means of transportation and four
months’ imprisonment for criminal trespass, to run concurrently. Carrier
was awarded 426 days of presentence incarceration credit.

¶5            Carrier’s appeal is timely. This Court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003) and 13-
4033(A)(1) (2010).

                                DISCUSSION

¶6              In an Anders appeal, this Court must review the entire record
for fundamental error. Error is fundamental when it affects the foundation
of the case, deprives the defendant of a right essential to his defense, or is
an error of such magnitude that the defendant could not possibly have had
a fair trial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607
(2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).

¶7            After reviewing the entire record, we find no meritorious
grounds for reversal of Carrier’s convictions or modification of the
sentences imposed. The record reflects Carrier had a fair trial and the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The evidence supports each of the convictions. A
reasonable trier of fact could conclude that Carrier was the driver of the
stolen commercial vehicle, and that Carrier was present in the Roadrunner
Towing’s commercial yard without permission. Finally, Carrier’s Sixth
Amendment and due process rights were not violated because no
proceedings of substance took place in his absence or without his consent.

I.     Sufficiency of Evidence

¶8            In reviewing the sufficiency of evidence at trial, “[w]e
construe the evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v. Greene,
192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “Reversible error based


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                            STATE v. CARRIER
                            Decision of the Court

on insufficiency of the evidence occurs only where there is a complete
absence of probative facts to support the conviction.” State v. Soto-Fong, 187
Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423,
424–25, 555 P.2d 1117, 1118–19 (1976)).

       A.     Theft of Means of Transportation

¶9            “A person commits theft of means of transportation if,
without lawful authority, the person knowingly . . . [c]ontrols another
person's means of transportation with the intent to permanently deprive
the person of the means of transportation.” A.R.S. § 13-1814(A)(1) (2010).
Carrier was charged with two counts of theft of means of transportation, as
the commercial vehicle consisted of both a truck and a trailer, which are
considered to be separate vehicles for purposes of A.R.S. § 13-1814. See
A.R.S. §§ 13-1801(A)(9) (2013), 28-101(55), (56) (2012).1

¶10           At trial, the State presented evidence that Carrier did not have
permission or authority to be operating the commercial vehicle. Officer
R.C. identified Carrier as the driver of the stolen commercial vehicle.
Further, Carrier was found under a car covered with a tarp in the
Roadrunner Towing lot to which the driver was likely to have fled.

¶11            Finally, “intent may be inferred from conduct where it is
plainly indicated as a matter of logical probability.” State v. Wilson, 120
Ariz. 72, 74, 584 P.2d 53, 55 (App. 1978). In this case, Carrier’s intent to
permanently deprive the owner of the vehicle can be inferred from the fact
that the identifying markings on the vehicle had recently been painted over.
See State v. Dixon, 216 Ariz. 18, 21, ¶ 10, 162 P.3d 657, 660 (App. 2007) (noting
that the circumstances under which the defendant had come to possess the
truck, drive it, and attempt to change its color were all subject to scrutiny
for weight and credibility). The finder of fact could also reasonably infer
that Carrier knew that the vehicle was stolen, as he identified himself as
working for the vehicle’s owner, Sedona Bottling Company, when stopped
by the police.

¶12           The above evidence is sufficient to support Carrier’s
conviction of the theft counts.




1 We cite to the current versions of statutes when no changes material to
this decision have since occurred.


                                       4
                            STATE v. CARRIER
                            Decision of the Court

       B.     Criminal Trespass

¶13           “A person commits criminal trespass in the second degree by
knowingly entering or remaining unlawfully in or on any nonresidential
structure or in any fenced commercial yard.” A.R.S. § 13-1503(A) (2010).
The owner of Roadrunner Towing testified that Carrier did not have
permission to be in his fenced commercial yard. Surveillance video showed
that Carrier had been in the yard. Further, Carrier was found in the yard
by police, under a car covered with a tarp.

¶14           The above evidence is sufficient to support Carrier’s
conviction of criminal trespass in the second degree.

II.    Acting Without Defendant’s Consent or Presence in Violation of
       Sixth Amendment

¶15          Carrier has alleged that the superior court and advisory
counsel violated his Sixth Amendment right to self-representation by
conducting proceedings in Carrier’s absence without his consent. We
disagree.

¶16            The Sixth and Fourteenth Amendments to the United States
Constitution provide for: (1) the right to effective representation by counsel,
and (2) the right to self-representation. Faretta v. California, 422 U.S. 806,
818, 821 (1975) (stating self-representation is “part of the ‘due process of
law’ that is guaranteed by the Fourteenth Amendment” and the Sixth
Amendment “implies a right of self-representation”); see also State v. Lamar,
205 Ariz. 431, 435–36, ¶ 22, 72 P.3d 831, 835–36 (2003). The right to self-
representation is also explicitly guaranteed in Article 2, Section 24, of the
Arizona Constitution. State v. Cornell, 179 Ariz. 314, 324, 878 P.2d 1352, 1362
(1994); State v. Martin, 102 Ariz. 142, 144, 426 P.2d 639, 641 (1967) (stating
that the Arizona Constitution “vest[s] in a defendant the ‘explicit’ right to
defend himself”).

¶17            The Sixth Amendment guarantees the accused the right to be
present at all stages of trial where his or her absence might frustrate the
fairness of the proceedings. Faretta, 422 U.S. at 819 n.15; see also State v.
Fitzgerald, 232 Ariz. 208, 214, ¶ 31, 303 P.3d 519, 525 (2013) (holding that,
under the Sixth and Fourteenth Amendments and Article 2, Section 24 of
the Arizona Constitution, a defendant has a constitutional right to be
present at every stage of a trial when his presence has a reasonably
substantial relationship to his opportunity to defend against the charge).
Furthermore, the Arizona Supreme Court has held that the Sixth
Amendment specifically provides for a defendant’s right to attend pretrial


                                      5
                           STATE v. CARRIER
                           Decision of the Court

proceedings critical to the outcome of the criminal proceeding whenever
the defendant's presence would contribute to the fairness of the procedure.
State v. Forde, 233 Ariz. 543, 560, ¶ 52, 315 P.3d 1200, 1217 (2014). Other
courts have found, however, that pro se defendants’ due process rights are
not violated when proceedings dealing with mere procedural issues take
place in the defendant’s absence. See People v. Purcelle, 966 N.Y.S.2d 608,
609 (App. Div. 2013).

¶18           On the first day of trial, Carrier was not transported to court,
and scheduling matters were discussed before Carrier arrived, including
the postponement of the beginning of the trial until the next day. The
parties present included the superior court judge, Carrier’s advisory
counsel, and the prosecutor for the State. The court discussed where
Carrier was and how to get him to court quickly. The State offered to
proceed in absentia, which the court refused. The court then discussed
whether to release the witnesses for the day, and when to restart the
proceedings the following day. After a brief recess, the court reconvened
with Carrier present. A review of the record revealed no other instances in
which Carrier was not present.

¶19            Here, the superior court simply discussed scheduling
conflicts and whether it was possible to transport Carrier to court in time to
proceed. The portion of the proceeding for which Carrier was not present
cannot reasonably be described as critical to the outcome, and Carrier’s
presence would not have contributed to the fairness of that proceeding.
Rather, his presence would merely have rendered the scheduling
discussion moot, and the trial would have begun. Therefore, we find that
the failure to transport Carrier and the proceedings that took place in his
absence did not constitute a violation of Carrier’s Sixth Amendment right
to self-representation.

III.   Sentencing

¶20           Carrier was sentenced to concurrent presumptive terms for
each offense. For Counts 1 and 2, theft of means of transportation, a class
three non-dangerous repetitive felony, the superior court sentenced Carrier
to 11.25 years’ imprisonment. For Count 3, criminal trespass in the second
degree, a class two non-dangerous non-repetitive misdemeanor, the
superior court sentenced Carrier to four months’ imprisonment. Carrier
received 426 days of presentence incarceration credit.

¶21         Because Carrier was sentenced to the presumptive sentence
for a category three repetitive offender, an explicit analysis of the



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                           STATE v. CARRIER
                           Decision of the Court

aggravating and mitigating factors was not necessary. It is only when
aggravating or mitigating circumstances are relied upon to vary from the
presumptive sentence that the superior court must articulate at sentencing
the factual findings and the reasons in support of the findings. State v.
Winans, 124 Ariz. 502, 505, 605 P.2d 904, 907 (App. 1979). There is no
requirement that judges specifically state information that will not be used
in the sentencing decision. Id.

¶22          After careful review, we find Carrier’s sentence to be
supported by the record, as the sentences imposed were within the
sentencing range for Carrier’s offenses.

                              CONCLUSION

¶23           After careful review of the record, we find no meritorious
grounds for reversal of Carrier’s convictions or modification of the
sentences imposed. The evidence supports the verdict, Carrier’s Sixth
Amendment right to self-representation was not violated, and the sentences
imposed were within the sentencing limits. Accordingly, we affirm
Carrier’s convictions and sentences.

¶24            Upon the filing of this decision, counsel shall inform Carrier
of the status of the appeal and his options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Carrier shall
have thirty days from the date of this decision to proceed, if he so desires,
with a pro per motion for reconsideration or petition for review.




                                    :gsh




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