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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ROCKNEY W. MARTINEAU, Appellant.

                             No. 1 CA-CR 17-0687
                               FILED 3-26-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-001315-002
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

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

Brown & Little, PLC, Chandler
By Matthew O. Brown
Counsel for Appellant
                           STATE v. MARTINEAU
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1              Rockney W. Martineau timely filed this appeal in accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of attempted fraudulent schemes and
artifices, illegally conducting an enterprise, and forgery. Martineau’s
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259, 284 (2000);
Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 (App. 1999).
Martineau filed a supplemental brief. Counsel now asks this court to search
the record for fundamental error. After reviewing the entire record, we
affirm Martineau’s convictions and sentences.

                  FACTS AND PROCEDURAL HISTORY

¶2           On February 22, 2016, Martineau was charged with count 1,
attempted fraudulent schemes and artifices, a class three felony in violation
of Arizona Revised Statutes (“A.R.S.”) section 13-2310; count 2, illegally
conducting an enterprise, a class three felony in violation of A.R.S. § 13-
2312; and count 3, forgery, a class four felony in violation of A.R.S. § 13-
2002.

¶3            Martineau’s jury trial commenced on April 25, 2017. The
evidence presented at trial, viewed in the light most favorable to sustaining
the convictions, see State v. Kiper, 181 Ariz. 62, 64 (App. 1994), is as follows:
Martineau attempted to record with the Maricopa County Recorder a
fraudulent quitclaim deed to real property located at 2228 East Jaeger,
Mesa, Arizona.

¶4           On approximately December 10, 2015, Martineau filed a
fraudulent quitclaim deed with the Maricopa County Recorder. The deed
indicated that a property owned by Richard Shroyer, located at 2228 East
Jaeger, Mesa, Arizona, was quitclaimed to Jason Bullard. Attached to the
deed was a check from Martineau’s personal bank account for filing fees.
Recorder’s Office employees were alerted by the deed because it was



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                          STATE v. MARTINEAU
                           Decision of the Court

unusual; it contained unordinary punctuation, listed witnesses and
personal property, the signature was not notarized, and the deed appeared
to have been written in pencil. A Recorder’s Office employee, LeeAnn
Wade, contacted the Arizona Attorney General’s Office and Mesa Police
Department after she saw the deed. Wade was aware of prior fraudulent
conduct by Martineau. Afterwards, Martineau filed a notice of claim
against Wade, contending that Wade made a false police report and did not
know Arizona law. A Mesa detective investigated and interviewed the
actual owner of the property, Marilyn Stromsness, who purchased her
home in 2012 and had not quitclaimed her home to anyone; nor had she
heard of Martineau.

¶5            Martineau coordinated with Jason Bullard, who was
incarcerated in Maricopa County Jail. Mesa Police reviewed recorded jail
phone calls between Bullard and Martineau, in which they discussed filing
the quitclaim deed.

¶6            The State moved to admit evidence of Martineau’s prior acts
under Arizona Rule of Evidence (“Rule”) 404(b). The State argued that
Martineau was involved in numerous similar scams wherein Martineau
allegedly worked with Bullard to file fraudulent deeds and lawsuits while
Bullard was in prison. The State argued the prior acts were relevant to
prove motive, intent, preparation, plan, and absence of mistake. Martineau
objected, arguing the evidence of prior acts would be unduly prejudicial
and the evidence was insufficient to show a common plan. The superior
court granted the State’s motion, allowing evidence related to dealings with
two other residences. In that prior case, Martineau pled no contest to
attempted fraudulent schemes and artifices, and fraudulent schemes and
artifices, where the factual bases included that the quitclaim deeds were
fraudulent.

¶7              Before trial, Martineau filed numerous pro per pleadings, even
though he was represented by an attorney. He also filed multiple pleadings
requesting to represent himself. The superior court struck his filings
because Martineau was “not authorized to file them, and . . . they [were]
not meritorious.” The superior court denied Martineau’s further requests
to represent himself because his requests were equivocal. On one such
occasion, in October 2016, Martineau unsuccessfully requested to represent
himself, and the court advised the parties that the court would not delay
the start of trial even if Martineau eventually successfully waived his right
to counsel.




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                         STATE v. MARTINEAU
                          Decision of the Court

¶8             A few months later, Martineau successfully completed his
waiver of counsel after a colloquy with the superior court. On the first day
of trial, Martineau asked the court for a time extension, claiming to “have
about eight witnesses and several documents that are very important for
. . . my exoneration.” The court denied Martineau’s motion to continue,
finding he failed to show good cause for failing to obtain or disclose
documents or witnesses sooner. Finally, Martineau gave up the right to
represent himself and was represented by counsel throughout the trial.

¶9             The jury found Martineau guilty of the three charges
identified above, and the jury found as aggravating factors that Martineau
committed all three counts while on probation for a felony offense, that he
committed the offenses as consideration for, in receipt of, or in the
expectation of the receipt of anything of pecuniary value, the offense
involved the presence of an accomplice, and the victim was 65 years of age
or older, or disabled. The court sentenced Martineau to the Department of
Corrections for thirteen years for counts 1 and 2, and eleven years for count
3, to run concurrently with one another.

¶10           Martineau timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

                              DISCUSSION

I.    Issues Raised by Martineau

¶11            Martineau argues the superior court erred by allowing the
State to admit evidence showing Martineau allegedly filed fraudulent
deeds as to two other residences and lawsuits in coordination with Bullard.
We disagree. The superior court allowed the admission of these prior acts
under Rule 404(b). The court explained that the evidence was properly
offered to prove that Martineau fraudulently, not mistakenly, attempted to
file a quitclaim deed in this case. The superior court’s characterization of
the evidence is supported by the record. Furthermore, the court gave the
jury limiting instructions as to Martineau’s “other acts.” Thus, the superior
court did not abuse its discretion in admitting this evidence.

¶12          Martineau next argues the superior court erred by refusing to
grant his request for a continuance. Months before trial, the court told
Martineau that if he completed a sufficient waiver of counsel, the court
expected Martineau to be prepared for trial to go forward as scheduled. A
few days before trial, Martineau’s request to represent himself was granted.
However, on the first day of trial, Martineau asked the court for a


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                         STATE v. MARTINEAU
                          Decision of the Court

continuance, claiming to “have about eight witnesses and several
documents that are very important for . . . my exoneration.” When the court
asked Martineau why he did not earlier bring this evidence to his attorney’s
attention, Martineau explained, “I just became pro per, of course.” The
superior court found no good cause for Martineau’s failure to obtain or
disclose documents or witnesses sooner and denied the motion to continue.

¶13           The decision to grant a motion for continuance falls within the
sound discretion of the trial judge and will not be reversed absent an abuse
of discretion that is demonstrably prejudicial to the defendant. State v.
Jackson, 112 Ariz. 149, 154 (1975). Here, the record shows the superior court
warned Martineau months before trial that Martineau would need to be
ready to represent himself at the scheduled trial date if he successfully
waived his right to counsel. It cannot be said, on this record, that the
denying of the continuance constituted an abuse of discretion. Moreover,
Martineau has not shown he was prejudiced.

¶14           Finally, Martineau argues that he should have received
nineteen months of presentence incarceration credit. Martineau received
1,078 days of credit for time served related to a separate probation matter.
The probation was revoked. The court ordered that his sentences for these
convictions run concurrently with each other, but consecutively to the
sentence in the prior matter. Accordingly, the superior court did not err.

II.   Other Matters

¶15            The record reflects Martineau received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The court held appropriate pretrial hearings.

¶16          The court held an evidentiary hearing and heard oral
argument. The State argued to admit evidence of Martineau’s similar acts
concerning two other real properties in Arizona under Rule 404(b). The
court found that the evidence of two prior attempts to file fraudulent
quitclaim deeds was offered for proper, non-character purposes under Rule
404(b).

¶17            The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
thirteen members. The court properly instructed the jury on the elements
of the charges, the State’s burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which was confirmed by
juror polling. The court received and considered a presentence report,



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                          STATE v. MARTINEAU
                           Decision of the Court

addressed its contents during the sentencing hearing, and imposed legal
sentences for the crimes of which Martineau was convicted.

                               CONCLUSION

¶18          We have reviewed the entire record for reversible error and
find none. We therefore affirm Martineau’s convictions and resulting
sentences. See Leon, 104 Ariz. at 300.

¶19           Defense counsel’s obligations pertaining to Martineau’s
representation in this appeal have ended. Counsel need do no more than
inform Martineau of the outcome of this appeal and his future options,
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 (1984). On the court’s own motion, Martineau has
thirty days from the date of this decision to proceed, if he wishes, with a pro
per motion for reconsideration or a petition for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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