                                                                    FILED BY CLERK
                             IN THE COURT OF APPEALS                    AUG 31 2009
                                 STATE OF ARIZONA
                                                                        COURT OF APPEALS
                                   DIVISION TWO                           DIVISION TWO




THE STATE OF ARIZONA,                        )
                                             )        2 CA-CR 2008-0339
                                Appellee,    )        DEPARTMENT B
                                             )
                   v.                        )        OPINION
                                             )
JEREMIAH MARCE FORTE,                        )
                                             )
                                Appellant.   )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20071281

                        Honorable Howard Fell, Judge Pro Tempore

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Laura P. Chiasson                                     Tucson
                                                               Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Kristine Maish                                                             Tucson
                                                               Attorneys for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            After appellant Jeremiah Forte pled guilty to aggravated assault with a deadly

weapon or dangerous instrument, the trial court suspended the imposition of sentence and

placed him on a five-year term of intensive probation. Forte later violated the terms of his

probation and, at a disposition hearing at which Forte appeared only via an interactive

audiovisual system, the court sentenced him to a mitigated term of 2.5 years’ imprisonment.

On appeal, Forte argues the court violated his rights to counsel and to be present at

sentencing by conducting the hearing without Forte physically present in the courtroom with

his attorney. Notwithstanding the procedural irregularities in this case, we affirm Forte’s

sentence for the reasons set forth below.

                          Factual and Procedural Background

¶2            On May 12, 2008, the state filed a petition to revoke Forte’s probation on the

grounds he had failed to report to the probation department as ordered and had failed to

reside at an approved address, leaving his whereabouts unknown. Forte later appeared in

custody at a probation revocation hearing on August 11, 2008, and the trial court found he

had violated the terms of his probation as alleged by the state.

¶3            The first of three disposition hearings was held on September 5, 2008. Forte

was not present at that hearing because he had not been “transported.” The trial court reset

the hearing for September 8, 2008, and ordered Forte to be transported to it. The next

hearing took place a day later than originally scheduled, on September 9, 2008, although the

record does not establish why the date was changed. The minute entry from this second

disposition hearing reflects Forte was not present because he had “refused transport.” After


                                              2
Forte’s attorney moved for a continuance, the court ordered the disposition hearing reset to

September 10, 2008. The court further ordered, “the Defendant must appear in person and

is not allowed to refuse transport.”

¶4            Forte was not physically present in the courtroom with his attorney during the

September 10th hearing but he was present via “Video Court” from jail, meaning he could

hear the proceedings and communicate with the judge through audiovisual devices. As the

judge explained the situation to Forte, “[Your attorney] is here, you can’t see him, but you’ll

be able to hear him.” No attorney for the state appeared at the hearing, and the judge made

no findings as to whether Forte had waived any right to be physically present in the

courtroom. Nor did the judge set forth on the record why it decided to conduct the

sentencing with Forte appearing via video. Instead, at the commencement of the proceeding,

the judge asked Forte how he was doing and remarked, “I’m glad that you decided to

cooperate because I didn’t want [the jail officials] to have to hurt you or anything trying to

get you over to the camera.” Subsequent communication between defense counsel and Forte

was audible in open court and transcribed on the record.

¶5            After allowing counsel and Forte to address the court, the judge revoked

Forte’s probation and sentenced him to a mitigated prison term of 2.5 years, giving him credit

for 530 days’ served. This appeal followed.

                                         Discussion

¶6            Forte now contends that his remote attendance at the disposition hearing ran

afoul of the requirements of the Arizona Rules of Criminal Procedure and that his physical


                                              3
absence from the courtroom and inability to communicate confidentially with his attorney

violated both his state and federal constitutional rights. Because he raised no objection to

the proceeding below, to be entitled to appellate relief Forte must demonstrate that the

alleged error was both fundamental and prejudicial, see State v. Henderson, 210 Ariz. 561,

¶¶ 19-20, 115 P.3d 601, 607-08 (2005), or that the alleged error was structural, in which case

prejudice is presumed. See State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36

(2009). We first address whether the trial court erred when it conducted Forte’s sentencing

notwithstanding his physical absence from the courtroom.

Physical Presence at Sentencing

¶7            A criminal defendant has the right to be physically present at every critical

stage of a trial, United States v. Gagnon, 470 U.S. 522, 525-26 (1985); State v. Dann, 205

Ariz. 557, ¶ 53, 74 P.3d 231, 245-46 (2003), including a sentencing hearing following the

revocation of probation. State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978); State

v. Stone, 111 Ariz. 62, 64, 523 P.2d 493, 495 (1974). This right is grounded in the Sixth and

Fourteenth Amendments of the United States Constitution, Gagnon, 470 U.S. at 526; Illinois

v. Allen, 397 U.S. 337, 338 (1970); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.

1994), as well as article II, § 24 of the Arizona Constitution. State v. Garcia-Contreras, 191

Ariz. 144, ¶ 8, 953 P.2d 536, 538 (1998). A defendant’s physical attendance at sentencing

is also required by Rule 26.9, Ariz. R. Crim. P., which states that “[t]he defendant . . . shall

be present at sentencing.”     Although the rules of criminal procedure expressly allow

defendants to appear at certain hearings by way of interactive audiovisual devices, they do


                                               4
not permit such virtual presence at a sentencing hearing for a felony offense. Ariz. R. Crim.

P. 1.6(a), (c)(3).

¶8             The state concedes the rules of criminal procedure generally require defendants

to be in court physically when they are sentenced for felony crimes. Nevertheless, the state

argues “the record strongly suggests . . . [Forte] refused to attend in person” and, as a result

of defying the judge’s orders, he forfeited his right to be present.

¶9             A defendant may indeed forfeit his right to attend judicial proceedings if, after

being warned by the court, he continues to behave in such a “disorderly, disruptive, and

disrespectful” way that a proceeding cannot take place with the defendant present. Allen, 397

U.S. at 343. Our supreme court has held that extraordinary circumstances—and only

extraordinary circumstances—justify a departure from Rule 26.9 and permit sentencing a

defendant in absentia. State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). However,

we indulge every presumption against the forfeiture of a defendant’s constitutional right to

be present, Allen, 397 U.S. at 343; Garcia-Contreras, 191 Ariz. 144, ¶ 14, 953 P.2d at 540,

and this presumption does not permit the inference invited by the state on the record before

us.

¶10            Admittedly, Forte was not an exemplary inmate. As the state points out, his

presentence report describes him as engaging in “bizarre and hostile behavior toward the

Court during his initial appearance.” Yet disruptive behavior only justifies physically

excluding a defendant until he signals he is willing to cooperate with the judicial process.

See Allen, 397 U.S. at 343 (“Once lost, the right to be present can . . . be reclaimed as soon


                                               5
as the defendant is willing to conduct himself consistently with the decorum and respect

inherent in the concept of courts and judicial proceedings.”). Even though Forte was

disruptive at his initial appearance, his physical presence and behavior at the later violation

hearing indicated he was willing to cooperate with the process. Thus, because he had

demonstrated good behavior at an intervening hearing, his disruptive behavior at an earlier

hearing was not, standing alone, a sufficient ground for excluding Forte from the disposition

hearing.

¶11           The sentencing judge also ordered Forte to appear at the disposition hearing

held September 10, 2008. His absence from court on that date, together with the minute

entry showing he had “refused transport” to the second disposition hearing, suggests Forte

might have intentionally defied the court in an attempt to obstruct the proceedings. We

cannot conclude, however, that the mere refusal of transportation by a defendant in custody,

in the absence of any further record, is an “extraordinary circumstance[]” justifying a

departure from the procedure required by Rule 26.9. Fettis, 136 Ariz. at 59, 664 P.2d at 209.

The trial court had the means and authority to compel Forte’s appearance regardless of

whether Forte chose to appear. Cf. State v. Henry, 189 Ariz. 542, 550, 944 P.2d 57, 65

(1997) (court has discretion to utilize measures necessary for orderly sentencing). Even a

defendant’s decision to willfully avoid a sentencing hearing by becoming a fugitive has not

been regarded as an extraordinary circumstance sufficient to justify conducting a sentencing

in absentia. State v. Zavala, 136 Ariz. 356, 358 n.1, 666 P.2d 456, 458 n.1 (1983); Fettis,

136 Ariz. at 59, 664 P.2d at 209. We therefore conclude that Forte’s unexplained refusal to


                                              6
attend, standing alone, is not an extraordinary circumstance justifying a deviation from the

normal procedural and presence requirements of Rule 26.9.

¶12           Furthermore, we cannot conclude Forte voluntarily waived his right to be

physically present at the sentencing. As a matter of constitutional law, a defendant may

generally give up his right to be present in court by consent. Allen, 397 U.S. at 342-43;

Garcia-Contreras, 191 Ariz. 144, ¶ 9, 953 P.2d at 539. Under Arizona’s rules of criminal

procedure, however, it is unclear whether a defendant may elect to attend a sentencing

hearing through interactive media or if, instead, a defendant’s physical presence in court is

compelled by Rule 26.9. Compare 196 Ariz. XLI (2000) (establishing Rule 1.6, whereby

defendants may appear through video conferencing equipment when appearance required in

court, but creating exception for felony sentencing), with State v. Adler, 189 Ariz. 280, 283,

284-85, 942 P.2d 439, 442, 443-44 (1997) (acknowledging rule that defendant must be

present at sentencing but observing “sentencing with counsel present and the defendant

present by telephone with consent is entirely different” than sentencing in absentia and is

permissible procedure), and State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App.

1982) (notwithstanding former Rule 26.9’s requirement that defendant be present at

sentencing, “the right to be present at the pronouncement of sentence may be waived, if the

waiver is knowing”).1




       1
        In 1993, Rule 26.9, Ariz. R. Crim. P., was amended, deleting language that provided
“failure of the defendant to appear for sentencing shall not delay the pronouncement and
entry of judgment and sentence.” 174 Ariz. LXXXVI (1993).

                                              7
¶13           Assuming arguendo Forte could have waived his physical presence at

sentencing and appeared via audiovisual equipment, the trial court still would have been

required to “determine that the defendant knowingly, intelligently and voluntarily agree[d]

to appear at the proceeding by an interactive audiovisual device.” Ariz. R. Crim. P. 1.6(b)(2).

Because the record demonstrates neither extraordinary circumstances necessitating a

deviation from the requirements of Rule 26.9, see State v. LeMaster, 137 Ariz. 159, 168, 669

P.2d 592, 601 (App. 1983), supp. op., nor the defendant’s personal waiver of the right to

physical presence at sentencing, we conclude the trial court sentenced Forte in violation of

the requirements of the Arizona Rules of Criminal Procedure and the United States

Constitution.2 See Townsend, 33 F.3d at 1231 (“[T]he Sixth Amendment . . . requires that

a defendant be physically present at sentencing.”).

¶14           Although we have found the trial court erred, Forte did not object when the

court conducted his sentence through the audiovisual feed. He is therefore not entitled to

relief in the absence of a showing either that the error was fundamental and prejudicial, see

Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607-08, or, as Forte contends, structural and

therefore prejudicial per se. Structural error is that “which affects the basic ‘framework

within which the trial proceeds’” and which so undermines the proceedings that the trial

“‘cannot reliably serve its function as a vehicle for determination of guilt or innocence.’”




       2
       Because the disposition hearing violated Forte’s federal constitutional rights, we need
not separately decide whether it also violated his rights under the Arizona Constitution.

                                              8
Garcia-Contreras, 191 Ariz. 144, ¶ 15, 953 P.2d at 540, quoting Arizona v. Fulminante, 499

U.S. 279, 310 (1991).

¶15           Our supreme court has made clear that not all species of “presence error” are

necessarily structural.   See Garcia-Contreras, 191 Ariz. 144, ¶ 16, 953 P.2d at 540.

“[B]efore a court can classify a ‘presence error,’ the character of the proceeding from which

the defendant was excluded must be evaluated to ascertain the impact of the constitutional

violation on the overall structure of the criminal proceeding.” Id., quoting Hegler v. Borg,

50 F.3d 1472, 1477 (9th Cir. 1995).

¶16           We must therefore assess whether the conduct of Forte’s sentencing so insulted

the basic framework of a criminal sentencing such that the proceeding could no longer serve

its core function. Pointing to the purposes of Rule 26.9, the state argues that the failure to

sentence a defendant in person is not structural error when, as here, the defendant fully

participated in the sentencing hearing through the use of audiovisual equipment. We agree.

¶17           Rule 26.9, the provision that sets forth Forte’s right to be present at sentencing,

was promulgated to guarantee that defendants receive essential warnings and information

about their appellate rights after the sentence is pronounced. See Ariz. R. Crim. P. 26.9 cmt.;

see also Ariz. R. Crim. P. 26.11 (requiring notice of appellate and post-conviction rights after

sentence). In addition, our supreme court has stated Rule 26.9 is designed to allow “[a]

presentence report based upon personal interview, the defendant[’s] exercis[e of] his right

of allocution, and a chance for the judge to personally question and observe the defendant.”

Fettis, 136 Ariz. at 59, 664 P.2d at 209; see also State v. Davis, 105 Ariz. 498, 502, 467 P.2d


                                               9
743, 747 (1970) (defendant must be given opportunity to express why sentence “should not

be pronounced against him and why he should have leniency”). Our supreme court has

characterized these as minimal requirements for a “reasonable and rational sentencing” to

take place. Fettis, 136 Ariz. at 59, 664 P.2d at 209.

¶18           Each of those requirements was met by the video conference that was held

here. The sentencing took place in open court and was pronounced by the judge after he had

reviewed the presentence report, observed and questioned Forte, and allowed him an

extensive allocution. Forte’s attorney communicated with Forte and argued mitigating

circumstances to the court. And Forte effectively exercised his right to appeal and received

notice of his right to post-conviction relief.

¶19           To be sure, there are additional virtues to a defendant’s physical presence at

a sentencing hearing not protected by an audiovisual feed from the jail. Other courts have

noted that seeing a video screen is different from seeing a live human being, see United

States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001), and a defendant’s presence in a

courtroom consequently decreases the risk that a judge will become psychologically

disconnected from the offender whom he or she is sentencing. See United States v. Navarro,

169 F.3d 228, 239 (5th Cir. 1999). Face-to-face sentencing also allows defendants and their

friends and family to experience “‘the immediacy of a living person’” at the hearing, id.,

quoting Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993), as well as any crime victims

who may wish to exercise their rights to be present and personally encounter the defendant.

See Ariz. Const. art. II, § 2.1(A)(3), (4). Moreover, a defendant’s presence with his attorney


                                                 10
in court enables instantaneous, unmediated discussion between them, see People v. Lindsey,

772 N.E.2d 1268, 1278 (Ill. 2002); People v. Guttendorf, 723 N.E.2d 838, 840-41 (Ill. App.

Ct. 2000), which is preferable to alternative forms of communication. See Seymour v. State,

582 So. 2d 127, 129 (Fla. Dist. Ct. App. 1991) (observing teleconferencing “deprived

[defendant] of the opportunity to look directly into the eyes of his counsel, to see facial

movements, to perceive subtle changes in tone and inflection . . . [and] to use all of the

intangible methods by which human beings discern meaning and intent in oral

communication”).

¶20           In our view, such interests are far from trivial and they undoubtedly inform our

state’s pertinent procedural rules which, as discussed, expressly prohibit the use of

audiovisual equipment to conduct criminal sentencing hearings remotely in felony cases. But

we do not believe that the erroneous deprivation of those procedural guarantees here so

undermined the basic framework of Forte’s sentencing such that it no longer served its core

function.

¶21           Moreover, the cases cited by Forte in contending the error here requires

automatic reversal either involved defendants who had objected properly to the procedure

below, see United States v. Torres-Palma, 290 F.3d 1244, 1245 (10th Cir. 2002), or were

decided under the procedural rules or statutes of other jurisdictions rather than on

constitutional grounds. See Lawrence, 248 F.3d at 303 n.1; Navarro, 169 F.3d at 239;




                                             11
Seymour, 582 So. 2d at 128-29.3 Consequently, we do not agree with Forte that any violation

of Rule 26.9 is “per se prejudicial,” Torres-Palma, 290 F.3d at 1248, or structural error.

Rather, following the guidance of our supreme court in Fettis, we conclude that when the

“minimal requirements” for sentencing have been met—when the trial court has observed,

questioned, listened to the defendant and his attorney, and advised the defendant of his

appellate and post-conviction rights—a “reasonable and rational sentencing” has taken place

and the essential function of the sentencing phase of a trial has been fulfilled. 136 Ariz. at

59, 664 P.2d at 209.

¶22           We therefore conclude the error here was not structural. Furthermore, even

assuming the error could be characterized as fundamental, Forte is not entitled to relief

because he has not demonstrated that he was prejudiced by his lack of physical presence in

the courtroom. Indeed, Forte has not alleged he suffered any particular prejudice at all. He

has therefore not met his burden of proving he is entitled to appellate relief. See Henderson,

210 Ariz. 561, ¶ 20, 115 P.3d at 607-08.

Right to Counsel

¶23           In a related argument, Forte contends his physical separation from his attorney

at sentencing denied him his right to counsel guaranteed by the Sixth and Fourteenth

Amendments of the United States Constitution; article II, § 24 of the Arizona Constitution;



       3
        People v. Guttendorf, 723 N.E.2d 838, 839-40 (Ill. App. Ct. 2000), which was
decided on federal and state constitutional grounds, involved a change-of-plea hearing rather
than a sentencing hearing and is distinguishable insofar as the two proceedings serve
different functions.

                                             12
and Rule 6.1, Ariz. R. Crim. P. See State v. Moody, 208 Ariz. 424, ¶ 76, 94 P.3d 1119, 1143

(2004); State v. Sample, 107 Ariz. 407, 410, 489 P.2d 44, 47 (1971), disapproved of on other

grounds by Mincey v. Arizona, 437 U.S. 385 (1978). Forte also claims this feature of his

remote sentencing procedure was structural error.

¶24           Denial of counsel may indeed be structural error, requiring automatic reversal.

Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235-36. And, because the sentencing process here

left Forte without a means of communicating confidentially with his attorney, that process

unconstitutionally infringed on his right to counsel as guaranteed by the Sixth Amendment

to the United States Constitution. See State v. Holland, 147 Ariz. 453, 456, 711 P.2d 592,

595 (1985); State v. Pecard, 196 Ariz. 371, ¶¶ 26-27, 998 P.2d 453, 459 (App. 1999). But

we disagree with Forte that such an error “unfairly ‘deprive[s] defendants of basic

protections’” and is properly categorized as “structural.” State v. Garza, 216 Ariz. 56, n.6,

163 P.3d 1006, 1013 n.6 (2007), quoting State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933

(2003) (alteration in Garza).

¶25           The cases Forte relies on in urging that automatic reversal is warranted are

readily distinguishable. Forte was not denied representation by private counsel of his choice,

as in United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006), or wholly denied the

opportunity to confer with counsel at a critical period in the trial, as in Geders v. United

States, 425 U.S. 80, 91 (1976). Nor was he forced to proceed with counsel despite an

irreconcilable conflict or completely fractured attorney-client relationship. See State v.

Torres, 208 Ariz. 340, ¶ 6, 93 P.3d 1056, 1058 (2004).


                                             13
¶26           Rather, Forte’s remote participation in the disposition hearing “interfere[d]

with confidential attorney-client communications” so as to “chill[] free discussion between

a defendant and his attorney.” Pecard, 196 Ariz. 371, ¶ 27, 998 P.2d at 459. When attorney-

client communications are chilled in this fashion, our courts generally analyze whether the

defendant was prejudiced by the lack of confidential communication. See Moody, 208 Ariz.

424, ¶ 77, 94 P.3d at 1143; Pecard, 196 Ariz. 371, ¶¶ 29-30, 998 P.2d at 459. Thus, our case

law implies that when, as here, a defendant’s interaction with his counsel is erroneously

compromised—but not obstructed altogether—by the inability of the defendant to

communicate confidentially with counsel, the error is subject to a review for prejudice.

¶27           Because Forte never objected to the sentencing procedure on the ground that

it impaired his ability to communicate confidentially with counsel, we review only for

fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Even assuming

such error would be fundamental, Forte would not be entitled to relief because he again has

made no showing of prejudice. See id. Forte readily communicated with his attorney at the

disposition hearing; he expressed to his attorney that he wished to receive standard rather

than intensive probation; his attorney argued several mitigating factors to the trial court; and

during his allocution, Forte clearly expressed his desire for standard probation. Forte never

expressed any desire to confer with his attorney confidentially nor did his attorney object to

the proceedings on that ground. Although Forte purported not to recognize his attorney’s

voice and name on the record, Forte does not explain how such confusion negatively affected

his or his counsel’s sentencing presentation.         Because Forte did not object to the


                                              14
videoconferencing arrangement at sentencing, and because he has shown no actual prejudice

resulting from it, we affirm his sentence.

                                        Disposition

¶28           The trial court erred by conducting the disposition hearing with Forte appearing

only by way of interactive audiovisual equipment and with Forte separated from his attorney

with no available means of confidential communication. But these errors were neither

structural nor prejudicial under the specific facts of this case. We therefore affirm the

revocation of Forte’s probation and the sentence imposed.




                                              ____________________________________
                                              PETER J. ECKERSTROM, Presiding Judge


CONCURRING:



____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PHILIP G. ESPINOSA, Judge




                                             15
