State v. Dorsey

NOTICE: NOT FOR PUBLICATION.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.

WILLIAM EUGENE DORSEY, Appellant.

No. 1 CA-CR 13-0862
FILED 11-4-2014

Appeal from the Superior Court in Maricopa County
No. CR2012-143670-001
The Honorable Richard L. Nothwehr, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.

H O W E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defense
counsel for William Eugene Dorsey has searched the record, found no
arguable question of law, and requests this Court to review the record for
fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391
(App. 1993). Dorsey was given the opportunity to file a supplemental brief
in propria persona, and has done so. After reviewing the record, we affirm
Dorsey’s conviction and sentences for pandering.

FACTS1 AND PROCEDURAL HISTORY

¶2 On August 16, 2012, Dorsey sent a text message to a police
officer who was working as an undercover prostitute to inquire about her
online advertisement. Dorsey’s message to the officer stated, “Join my
team,” and included a photo of Dorsey holding up money.

¶3 Dorsey then met the officer at a hotel room, where Dorsey
invited the officer to join his “team” and discussed what acts she would
perform as a prostitute. Dorsey also discussed traveling out of state, doing
“doubles” with another prostitute, and hoped that she would earn him $200
an hour.

¶4 Dorsey was charged with pandering, a class five felony. The
State alleged several historical non-dangerous felony convictions and
aggravating circumstances. At a pretrial hearing, Dorsey moved to dismiss
counsel, arguing that his attorney “doesn’t know my case” and

1 This Court views the evidence in the light most favorable to
sustaining the convictions and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
This Court also resolves any conflict in the evidence in favor of sustaining
the verdicts. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

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“overlooked” evidence in discovery. The superior court denied Dorsey’s
request to dismiss counsel.

¶5 Before the end of trial, Dorsey moved for a judgment of
acquittal pursuant to Arizona Rule of Criminal Procedure 20, which the
superior court denied. At the close of the evidence, the superior court
properly instructed the jury on the elements of the offense. The jury
convicted Dorsey as charged.

¶6 The superior court conducted the sentencing hearing in
compliance with Dorsey’s constitutional rights and Arizona Criminal
Procedure Rule 26. Finding no mitigating circumstances, the superior court
sentenced Dorsey to five years imprisonment and gave him credit for 456
days of presentence incarceration.

DISCUSSION

¶7 Dorsey raises several arguments in his supplemental brief.
We review the entire record for reversible error. State v. Thompson, 229 Ariz.
43, 45 ¶ 3, 270 P.3d 870, 872 (App. 2012).

¶8 Dorsey first argues that the superior court erred by denying
his motion for a judgment of acquittal. We reject his claim. A motion for a
judgment of acquittal may be granted only when “there is no substantial
evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). We review de
novo whether sufficient evidence supported the conviction. State v. West,
226 Ariz. 559 ¶ 15, 250 P.3d 1188, 1191 (2011). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. ¶ 16 (quoting State v.
Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990)). “Both direct and
circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” Id.

¶9 Here, the evidence presented at trial showed that Dorsey
contacted an undercover prostitute, asking her to “join his team” in hopes
of earning him $200 an hour for sex acts. This was sufficient evidence from
which a rational juror could find Dorsey guilty beyond a reasonable doubt.
Accordingly, the superior court therefore did not err in denying Dorsey’s
motion for a judgment of acquittal.

¶10 Dorsey next alleges error in sentencing. He argues that the
“mitigating circumstances outweighed [the] State’s aggravating
circumstances, which should have qualified defendant to receive a sentence

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below presumptive,” and that the “[j]udge did not state on the record his
reason for sentencing defendant to [the] presumptive term.” A sentence
within statutory limits will not be disturbed unless the trial court abused its
discretion by acting arbitrarily or capriciously. State v. Cazares, 205 Ariz.
425, 427 ¶ 6, 72 P.3d 355, 357 (App. 2003).

¶11 In determining what sentence to impose, the superior court
shall consider the “amount of aggravating circumstances and whether the
amount of mitigating circumstances is sufficiently substantial to justify the
lesser term.” A.R.S. § 13-707(F). When imposing a presumptive sentence,
the superior court is not required to articulate factual findings and reasons
for doing so. State v. Winans, 124 Ariz. 502, 504–05, 605 P.2d 904, 906–07
(App. 1979).

¶12 We find no error in Dorsey’s sentence. At sentencing, the
superior court found that “there are no mitigating circumstances in this
matter” and sentenced Dorsey to a presumptive, five-year term with 456
days of incarceration credit. Because the superior court sentenced Dorsey
to a presumptive term, it was not required to articulate its reasons for doing
so. Moreover, because the superior court found neither mitigating nor
aggravating circumstances, Dorsey’s argument regarding the weight of the
mitigating circumstances is irrelevant. Finding no error, we affirm Dorsey’s
sentence.

¶13 Dorsey also argues that the “[j]udge abused his discretion by
not letting [Dorsey] dismiss counsel after oral argument [on] July 30, 2013.”
We reject this claim. “A criminal defendant has a Sixth Amendment right
to representation by competent counsel.” State v. Moody, 192 Ariz. 505, 507
¶ 11, 968 P.2d 578, 580 (1998). A defendant is not entitled, however, to a
counsel of choice or even to a meaningful relationship with his or her
counsel. Id. The burden is on the defendant to prove a genuine
irreconcilable difference with trial counsel or that there was a total
breakdown in communication. State v. Torres, 208 Ariz. 340, 343 ¶ 8, 93 P.3d
1056, 1059 (2004). The evidence must show more than mere animosity
causing loss of trust or confidence. See State v. Paris–Sheldon, 214 Ariz. 500,
505 ¶ 14, 154 P.3d 1046, 1051 (App. 2007) (loss of trust or confidence not
sufficient to appoint new counsel). A defendant must establish that he had
such a “severe and pervasive conflict with his attorney or . . . that he had
such minimal contact with the attorney that meaningful communication
was not possible.” Id. at 505 ¶ 12, 154 P.3d at 1051.

¶14 Dorsey has failed to meet his burden. Dorsey merely
submitted broad and unsupported allegations at a pre-trial hearing that his

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attorney “doesn’t know” his case and “overlooked” evidence in discovery.
Without more, those allegations did not entitle Dorsey to a substitution of
counsel. Accordingly, the superior court did not err in denying Dorsey’s
request to dismiss counsel.

¶15 Dorsey also alleges prosecutorial misconduct, alleging that
the State “prosecut[ed] the case without fully investigating evidence in the
case, misstating Phoenix City Code, etc.” “In reviewing prosecutorial
misconduct, we focus on whether it affected the proceedings in such a way
as to deny the defendant a fair trial.” State v. Hughes, 193 Ariz. 72, 80 ¶ 32,
969 P.2d 1184, 1192 (1998). Having reviewed the record, we find no
evidence of prosecutorial misconduct, let alone evidence that Dorsey was
denied a right to a fair trial.

¶16 Dorsey next argues that “[i]t was entrapment when [the
undercover police] officer committed crime of[] advertising as an escort
without license[] to arrest [Dorsey] who [had] inquired about [the] officer’s
services as an escort.” To claim entrapment, however, Dorsey was required
to admit the substantive elements of the crime charged. A.R.S. § 13–206(A).
By refusing to admit the substantive elements of pandering at trial, Dorsey
rendered the defense of entrapment unavailable. See State v. Nilsen, 134
Ariz. 431, 432, 657 P.2d 419, 420 (1983) (“Our cases have consistently held
that to avail himself of the defense of entrapment, a defendant must admit
all the elements of the offense.”). We therefore find no fundamental error.

¶17 We also summarily reject several of Dorsey’s claims that have
no legal basis or are based on a misapprehension of the applicable law.
Specifically, we find no support for his contention that he was “denied
Equal Protection of [the] law when pursing the legal business of escorting,”
or that the superior court lacked jurisdiction because “the evidence showed
nothing but a possible Phoenix City ordinance code violation.”

¶18 We also reject his argument that a police officer “comitted
[sic] false swearing when she testified to not being in possession of a phone
used in [the undercover] operation,” the “[j]udge abused his discretion by
denying [Dorsey’s] motion to preclude late disclosed phone examination
report and associated phone data,” and that the officer gave “an
independent recollection of events” over defense counsel’s objection.
Dorsey does not provide any indication where in the record we can find the
relevant testimony. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838
(1995) (insufficient argument on appeal waives claim). Finally, Dorsey
raises several arguments related to the sufficiency of the evidence. Dorsey

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essentially asks us to reweigh the evidence against him; this we will not do.
See State v. Haas, 138 Ariz. 413, 419, 675 P.2d 673, 679 (1983).

¶19 Dorsey also raises several claims that appear to assert that his
trial counsel provided ineffective assistance, namely that counsel “was
insufficient,” “should have [filed] a motion for [a] new trial [and mistrial],”
“failed to [file] motions . . . to dismiss complaint or indictment,” “refused
to give him the full disclosure that the state gave him of the case,” “failed
to remand the case to the grand jury,” and failed to let him “sign [the] State’s
second plea offer.” Claims of ineffective assistance of counsel cannot be
raised on appeal and must be raised in a post-conviction proceeding
pursuant to Arizona Criminal Procedure Rule 32; we therefore do not
discuss these arguments further. See State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39
P.3d 525, 527 (2002).

¶20 Counsel for Dorsey has advised this Court that after a diligent
search of the entire record, he has found no arguable question of law. We
have read and considered counsel’s brief, Dorsey’s supplemental brief, and
fully reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451
P.2d at 881. We find none. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. So far as the
record reveals, Dorsey was represented by counsel at all stages of the
proceedings and the sentence imposed was within the statutory limits. We
decline to order briefing and we affirm Dorsey’s convictions and sentences.

¶21 Upon the filing of this decision, defense counsel shall inform
Dorsey of the status of his appeal and of his future 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). Dorsey shall have thirty days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review. On the Court’s own motion, we extend the time for Dorsey to
file a pro per motion for reconsideration to thirty days from the date of this
decision.

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CONCLUSION

¶22 For the foregoing reasons, we affirm Dorsey’s conviction and
sentence.

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