                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 CHRISTOPHER JUSTIN KIRBY, Appellant.

                             No. 1 CA-CR 14-0762
                              FILED 5-26-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-444399-001
               The Honorable Joseph C. Kreamer, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                            STATE v. KIRBY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Andrew W. Gould joined.


J O H N S E N, Judge:

¶1            Christopher Justin Kirby appeals from his convictions and
resulting sentences for aggravated assault, escape, and threatening and
intimidating. For reasons that follow, we affirm the three convictions and
the sentences imposed on the convictions for escape and threatening and
intimidating, but vacate and remand the sentence imposed on the
conviction for aggravated assault.

                 FACTS AND PROCEDURAL HISTORY

¶2             While being booked into jail on another offense, Kirby slipped
out of his handcuffs and used them to attack the arresting detective.1 As a
result of the handcuff incident, Kirby was charged with aggravated assault
on a peace officer, a Class 2 dangerous felony; escape in the first degree, a
Class 4 dangerous felony; and threatening or intimidating by a criminal
street gang member, a Class 6 dangerous felony. For sentencing purposes,
the State alleged five historical prior felony convictions and multiple
aggravating circumstances.

¶3             Before trial, the superior court granted defense counsel's
request for a competency evaluation of Kirby pursuant to Arizona Rule of
Criminal Procedure ("Rule") 11.2. The case was transferred to the Rule 11
Commissioner's Court and, based on reports from doctors who examined
Kirby, that court found him incompetent to stand trial and ordered him
confined for treatment. Two months later, another evaluation concluded
that Kirby was "blatantly malingering" and exaggerating cognitive
impairment and symptoms of mental illness and that he was competent to
stand trial. This report also included findings that Kirby was "well aware
of his situation and potential consequences and is attempting to deceive the
court" and that his "treatment providers have never seen any credible


1      On review, we view the facts in the light most favorable to sustaining
the convictions and resolve all inferences against Kirby. State v. Fontes, 195
Ariz. 229, 230, ¶ 2 (App. 1998).


                                      2
                             STATE v. KIRBY
                            Decision of the Court

evidence of psychosis or mental illness other than Antisocial Personality
Disorder." The Commissioner's Court accepted the parties' stipulation to
this report, found Kirby competent to stand trial, and transferred the case
back to the superior court.

¶4            A jury found Kirby guilty as charged on all three counts. It
further found the aggravated assault and threatening and intimidating
offenses were dangerous offenses and that the State had proven an
aggravating circumstance for all three offenses. Before sentencing, the
superior court held a hearing and found Kirby had five historical prior
felony convictions. The superior court thereafter sentenced Kirby as a
repetitive offender to concurrent aggravated prison terms of 28 years for
aggravated assault, 12 years for escape and 5.5 years for threatening and
intimidating, with credit for 404 days of presentence incarceration.

¶5            Kirby timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016) and
-4033(A)(1) (2016).2

                               DISCUSSION

A.     Competency to Stand Trial.

¶6            Kirby argues his convictions must be reversed because he was
not competent to stand trial. We will not disturb a competency
determination absent an abuse of discretion, nor will we reweigh the
evidence. State v. Lewis, 236 Ariz. 336, 340, ¶ 8 (App. 2014). We consider
only whether "reasonable evidence supports the trial court's finding that
the defendant was competent, considering the facts in the light most
favorable to sustaining the trial court's findings." Id. (quoting State v.
Glassel, 211 Ariz. 33, 44, ¶ 27 (2005)).

¶7            Convicting a defendant who is legally incompetent violates
due process. Pate v. Robinson, 383 U.S. 375, 378 (1966). Legal competency,
however, is an "extremely narrow issue," and the "fact that a defendant
suffers from a mental illness, defect, or disability is not, by itself, grounds
for finding the defendant incompetent." Lewis, 236 Ariz. at 340, ¶ 9
(quotation omitted). Rather, such illness, defect, or disability must render
the defendant "unable to understand the nature and object of the


2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                      3
                             STATE v. KIRBY
                            Decision of the Court

proceeding or to assist in the defendant's defense." A.R.S. § 13–4501(2)
(2016).

¶8             Kirby does not challenge the commissioner's determination
that he was competent to stand trial following his referral for evaluation
and treatment. Instead, noting that determination was made five months
before trial, Kirby argues the superior court erred by not sua sponte
conducting another inquiry into his competency at the beginning of trial.
Specifically, Kirby asserts that his counsel's in-court comments just before
trial about the need for him to wear a spit mask and mitts to protect the
jailers and the fact that he was being held at the jail's mental health unit
because of self-harming actions such as overdosing on medication and
swallowing objects were sufficient to raise a good-faith doubt as to his
competency that required further inquiry.

¶9             A court must order a competency evaluation if it determines
"reasonable grounds" for such an examination exist. Ariz. R. Crim. P.
11.3(a). "Reasonable grounds exist when there is sufficient evidence to
indicate that the defendant is not able to understand the nature of the
proceeding against him and to assist in his defense." State v. Amaya–Ruiz,
166 Ariz. 152, 162 (1990) (quotation omitted). The superior court has broad
discretion to determine whether reasonable grounds exist for a competency
examination, and we will reverse its ruling only if it manifestly abused that
discretion. Id.

¶10             After reviewing the record, we cannot say that the superior
court abused its discretion. Given his reported behavior, Kirby may, in fact,
suffer from mental illness. As stated, however, mental illness, defect, or
disability does not, by itself, establish legal incompetency. Lewis, 236 Ariz.
at 340, ¶ 9. Rather, such illness, defect, or disability must render the
defendant "unable to understand the nature and object of the proceeding or
to assist in the defendant's defense." A.R.S. § 13–4501(2) (emphasis added).

¶11            Although defense counsel described various issues Kirby had
while being held in jail, at no time after the initial Rule 11 determination of
competency did defense counsel indicate she thought Kirby was
incompetent to stand trial. Furthermore, the superior court had the
opportunity to observe and speak with Kirby on the first day of trial
testimony, when Kirby confirmed his decision to forego his attendance at
trial. Nothing in the record suggests his conduct in court that morning
raised any question about his ability to understand the proceedings or to
assist in his defense. Absent any indication that Kirby's claimed mental
illness or other psychological problems might prevent him from


                                      4
                             STATE v. KIRBY
                            Decision of the Court

understanding the proceedings or aiding in his defense, the superior court
did not abuse its discretion in not ordering a second Rule 11 examination.

B.     Waiver of Presence at Trial.

¶12            During a pretrial hearing, defense counsel informed the
superior court that Kirby did not wish to appear at his trial. When asked
why he did not want to be present, Kirby stated it was because he would
"stick[] out" because of the spit mask and mitts he was required to wear.
His counsel further informed the court that she had discussed the matter
with Kirby and that they had decided to waive his presence for "strategic
and tactical purposes." The superior court engaged in a colloquy with
Kirby, during which the court advised him of the rights he would be
waiving by not attending the trial. At the conclusion of the colloquy, Kirby
told the court he understood his rights and that he wanted to waive them.
Later, out of the presence of the jury during trial, Kirby reaffirmed his
waiver of the right to be present and testify and confirmed that his waiver
also applied to any post-trial hearings concerning the allegations of
aggravating factors and prior felony convictions.

¶13            On appeal, Kirby argues he was involuntarily deprived of his
right to be present at trial. He contends he could not have appeared before
the jury wearing a spit mask and mitts, yet the court neither offered to
remove the mask and mitts nor offered him an alternative means of being
present at trial. Kirby did not raise this issue in the superior court; nor did
he object to having to wear a mask and mitts. Therefore, we review only
for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
"Fundamental error is error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial."
State v. Ruggiero, 211 Ariz. 262, 268, ¶ 25 (App. 2005) (quotation omitted).
The defendant bears the burden of establishing fundamental error.
Henderson, 210 Ariz. at 568, ¶¶ 23-24.

¶14            The federal and Arizona constitutions guarantee an accused
the right to be present at trial. U.S. Const. amend. VI; Ariz. Const. art. 2,
§ 24; State v. Levato, 186 Ariz. 441, 443 (1996). This right, however, is not
absolute, and a defendant may voluntarily waive the right to attend trial.
State v. Garcia–Contreras, 191 Ariz. 144, 147, ¶ 9 (1998).

¶15           Kirby's reliance on Garcia-Contreras is misplaced. In that case,
the defendant's civilian clothes were not available at the start of trial, and
the superior court denied a motion for a short continuance until the clothes


                                      5
                            STATE v. KIRBY
                           Decision of the Court

could be brought to the court. Id. at 146, ¶¶ 4-6. Rather than wear jail garb
to court, the defendant elected to waive his presence at trial. Id. at ¶ 7. On
appeal, our supreme court reversed, holding the superior court erred in
denying the motion for continuance because it forced the defendant to
choose between waiving his right to be present at trial and the right not to
appear in jail garb. Id. at 149, ¶ 22.

¶16           Unlike the defendant in Garcia-Contreras, nothing in the
record indicates that Kirby wanted to be present at trial. Although Kirby
claims his waiver was involuntary because he "was presented with the
Hobson's choice of appearing in a spit mask and mitts or relinquishing his
presence rights," he did not object to having to wear the spit mask and mitts,
nor did he suggest any alternative under which he could attend trial or
would be willing to do so. To the contrary, his counsel informed the
superior court that the spit mask and mitts were necessary because "he
often spits and scratches the guards" and that the decision to waive his
presence was both tactical and strategic.

¶17           Further, the record reflects that Kirby likewise elected to
waive his right to be present during pretrial proceedings and trial in two
other criminal matters.        His decision to forego attending pretrial
proceedings in those other cases, even though no jurors would be present,
demonstrates that the mask and mitts did not render his absence
involuntary. Viewed in its entirety, the record in this case shows a
defendant who did not want to participate in any part of the criminal justice
process. On this record, Kirby has failed to meet his burden of establishing
that his waiver of the right to be present at trial was not voluntary.

¶18           In advancing this argument, Kirby challenges certain acts by
his counsel bearing on the waiver of his presence at trial. These allegations
that his counsel was ineffective may not be brought on appeal, but only in
post-conviction relief proceedings. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9
(2002).

C.     Lesser-Included Offense Instruction.

¶19            Kirby also contends the superior court erred by failing to
instruct the jury on the lesser-included offense of misdemeanor threatening
and intimidating, arguing that the jury could have concluded that the
evidence did not establish beyond a reasonable doubt that Kirby was a
member of a criminal street gang. Because Kirby failed to object to the
instructions given and did not request a lesser-included offense instruction,
we review this argument for fundamental, prejudicial error. Ariz. R. Crim.



                                      6
                              STATE v. KIRBY
                             Decision of the Court

P. 21.3(c) ("No party may assign as error on appeal the court's giving or
failing to give any instruction . . . unless the party objects thereto before the
jury retires to consider its verdict[.]"); State v. Dickens, 187 Ariz. 1, 22–23
(1996), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 242-43
(2012).

¶20             In a noncapital case, the superior court has a duty to provide
a lesser-included offense instruction sua sponte only when the absence of
such an instruction "would fundamentally violate [the] defendant's right to
a fair trial." State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other
grounds by State v. Ives, 187 Ariz. 102, 106-08 (1996); accord State v. Whittle,
156 Ariz. 405, 407 (1988). Our supreme court has described this inquiry as
whether the lack of an instruction "interferes with [the] defendant's ability
to conduct his defense." Lucas, 146 Ariz. at 604.

¶21            The difference between threatening and intimidating as a
Class 1 misdemeanor in violation of A.R.S. § 13–1202(A)(1), (B) (2016) and
the Class 4 felony version of the offense in violation of A.R.S. § 13-
1202(A)(3), (B) is that the felony offense includes an additional element that
the defendant be a criminal street gang member. Here, the State presented
evidence that Kirby was a member of the Peckerwoods, a white supremacist
criminal street gang. Kirby did not dispute the evidence of his gang
affiliation at trial. Instead, Kirby's defense to the threatening and
intimidation charge was that his statements to the victim were "kind of a
general taunting, not a threat," and that the victim did not know he was a
member of a criminal street gang until after the assault. Because the court's
failure to instruct the jury on the lesser-included offense did not interfere
with Kirby's ability to present his defense, no fundamental error occurred.

D.     Sentencing as Repetitive Offender.

¶22            Kirby also argues the superior court erred in sentencing him
as a repetitive offender. Because Kirby did not object to his sentence on this
ground, we review this argument only for fundamental error. State v. Thues,
203 Ariz. 339, 340, ¶ 4 (App. 2002).

¶23           Before trial, the State filed timely allegations of five historical
prior felony convictions for enhancement and aggravation purposes. The
State intended to prove the prior convictions through a certified copy of
Kirby's "pen pack," a packet of information assembled by the Arizona
Department of Corrections that detailed Kirby's history of criminal
convictions and incarceration and included his personal information, his
photograph and fingerprints. During the hearing at trial at which Kirby



                                         7
                             STATE v. KIRBY
                            Decision of the Court

reaffirmed his waiver of his right to be present at trial, Kirby admitted that
the certified pen pack related to him.

¶24            Following return of the guilty verdicts, the court held a
hearing on the State's allegation of prior felony convictions. After the State
offered the certified pen pack and other supporting documents in evidence
on the prior convictions, the superior court asked Kirby's counsel if he
wanted to present any information about the alleged prior felony
convictions. Defense counsel responded in the negative, stating, "My client
has admitted that he does have those priors before the trial, so we're not
contesting them." The superior court then made the finding that Kirby had
the five historical prior felony convictions reflected in the pen pack and
sentenced him to enhanced aggravated sentences as a category three
repetitive offender.

¶25            Kirby argues the superior court erred in accepting his
admission to the pen pack and his counsel's stipulation to the allegations of
prior convictions without conducting a Rule 17.6 colloquy. He also argues
the record is insufficient to show the existence of the historical prior felony
convictions found by the superior court.

¶26           The superior court may impose an enhanced sentence if the
State alleges and the court finds the defendant has one or more historical
prior felony convictions. A.R.S. § 13-703 (2016); State v. Morales, 215 Ariz.
59, 61, ¶¶ 6-7 (2007). Prior convictions may be proven at an evidentiary
hearing or admitted by the defendant. Id. Rule 17.6 requires the court to
conduct a plea-type colloquy when it accepts a defendant's admission to a
prior conviction during a sentencing proceeding. Id. at 61, ¶ 7; State v.
Gonzales, 233 Ariz. 455, 457, ¶ 8 (App. 2013). Failure to conduct a Rule 17.6
colloquy may be fundamental error, but a defendant is not entitled to
resentencing in the absence of prejudice. See Morales, 215 Ariz. at 61-62, ¶¶
10–11; Gonzales, 233 Ariz. at 458, ¶ 9. Here, the absence of the Rule 17.6
colloquy was harmless because Kirby cannot show prejudice.

¶27           A category three repetitive offender sentence enhancement
requires a finding of two or more historical prior felony convictions. A.R.S.
§ 13-703(C). The certified pen pack entered in evidence at the sentencing
hearing establishes that Kirby had five prior felony convictions for offenses
committed between June 2001 and June 2008. Kirby argues that none of the
convictions qualifies as an historical prior felony conviction because they
were not committed within the time limitations of A.R.S. § 13-105(22)(b) or
(c) (2016). That argument, however, ignores subsection (d) of the statute,
under which "[a]ny felony conviction that is a third or more prior felony


                                      8
                            STATE v. KIRBY
                           Decision of the Court

conviction" qualifies as an "historical felony conviction" regardless of when
it was committed. A.R.S. § 13-105(22)(d). Thus, the certified pen pack
establishes that Kirby had three prior felony convictions that qualify as
historical prior felony convictions for sentencing enhancement purposes.
Accordingly, no remand is required for the lack of a Rule 17.6 colloquy. See
Gonzales, 233 Ariz. at 458, ¶ 11 (unobjected-to presentence report to which
the defendant stipulated without the benefit of a Rule 17.6 colloquy
conclusively precludes a finding of prejudice).

E.    Sentencing on Aggravated Assault Conviction.

¶28           Kirby also contends the superior court erred by sentencing
him on the aggravated assault conviction pursuant to A.R.S. § 13-1204(C)
(2016). This statute provides:

             A person who is convicted of intentionally or
      knowingly committing aggravated assault on a peace officer
      while the officer is engaged in the execution of any official
      duties pursuant to subsection A, paragraph 1 or 2 of this
      section shall be sentenced to imprisonment for not less than
      the presumptive sentence . . . and is not eligible for suspension
      of sentence, commutation or release on any basis until the
      sentence imposed is served.

¶29           Kirby argues he should not have been sentenced pursuant to
this statute because the jury verdict failed to establish that the aggravated
assault was committed intentionally or knowingly. We agree.

¶30            Kirby was charged with aggravated assault on the detective
in violation of A.R.S. §§ 13-1203(A)(1) (2016) and 13-1204(A)(2) (2016). A
person commits assault in violation of A.R.S. § 13-1203(A)(1) by
"[i]ntentionally, knowingly or recklessly causing any physical injury to
another person[.]" The jury was instructed on all three possible culpable
mental states for the offense, but the verdict form did not require the jury
to designate whether the jurors found the offense to have been committed
intentionally or knowingly.

¶31          Absent a specific finding by the jury beyond a reasonable
doubt that Kirby committed the assault intentionally or knowingly as
opposed to recklessly, the superior court erred in sentencing Kirby
pursuant to A.R.S. § 13-1204(C). "Imposition of an illegal sentence
constitutes fundamental error." Thues, 203 Ariz. at 340, ¶ 4. On
fundamental error review, the defendant must show that the error caused
him prejudice. Henderson, 210 Ariz. at 567, ¶ 20. Because we cannot say


                                     9
                            STATE v. KIRBY
                           Decision of the Court

that no reasonable juror could have failed to find Kirby acted intentionally
or knowingly as opposed to recklessly in assaulting the officer, we vacate
the sentence imposed on the conviction for aggravated assault on a peace
officer and remand for resentencing on this conviction.

                             CONCLUSION

¶32          For the foregoing reasons, we affirm Kirby's three convictions
and the sentences imposed on the convictions for escape and threatening
and intimidating, but vacate the sentence imposed on the conviction for
aggravated assault and remand for resentencing on that conviction.




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