State v. Faccio

NOTICE: NOT FOR PUBLICATION.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.

CLAY PHILLIP FACCIO, Appellant.

No. 1 CA-CR 13-0849
FILED 12-30-14

Appeal from the Superior Court in Maricopa County
No. CR2012-148338-002
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 Jeffrey L. Force
Counsel for Appellant

Clay Phillip Faccio, Douglas
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

C A T T A N I, Judge:

¶1 Clay Phillip Faccio appeals his convictions of possession of
narcotic drugs for sale (a class 2 felony), possession or use of dangerous
drugs (a class 4 felony), and possession of drug paraphernalia (a class 6
felony) and the resulting sentences. Faccio’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of
the record, he found no arguable question of law that was not frivolous.
Faccio filed a supplemental brief raising several claims of error, which we
address below. Counsel asks this court to search the record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).
After reviewing the record, we affirm Faccio’s convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 The relevant facts, viewed in the light most favorable to
upholding the jury’s verdicts, are as follows. In September 2012, C.D., a
police informant, agreed to purchase one gram of heroin for $80 from
Faccio. Mesa Police Detective Clevenger provided C.D. with a recording
device, and Detectives Clevenger and McKnight accompanied C.D. to
Faccio’s apartment. During the controlled buy, Detective Clevenger
remained in his vehicle while Detective McKnight watched C.D. enter
Faccio’s apartment and remain inside for a few minutes. Once inside the
apartment, C.D. handed $80 to Faccio’s girlfriend, then Faccio came out
from his bedroom and handed C.D. a baggie containing heroin. C.D. left
the apartment and gave the baggie to Detective McKnight. Using the
information provided from this controlled buy, police officers obtained a
search warrant for Faccio’s apartment and executed the warrant one week
later.

¶3 While searching a computer tower in Faccio’s bedroom,
officers found (1) a black plastic bag with a crystalline, clear to white
substance that looked like methamphetamine, (2) three loaded syringes
containing a dark liquid substance that appeared ready to be injected, and

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Decision of the Court

(3) four empty syringes. The clear to white substance tested positive for
methamphetamine, and the dark liquid substance tested positive as a
mixture of methamphetamine and heroin. Officers also found six cell
phones and four digital scales in Faccio’s bedroom. During a subsequent
police interview, Faccio admitted that he kept heroin and
methamphetamine hidden in the computer tower in his bedroom. He also
admitted that he used the empty syringes to shoot drugs into his arms and
neck, and that he had intended to use the loaded syringes.

¶4 Faccio was arrested and charged with one count of possession
of narcotic drugs for sale stemming from the controlled buy, as well as one
count of possession or use of dangerous drugs and two counts of possession
of drug paraphernalia resulting from the subsequent search.

¶5 Because Faccio failed to appear for trial, the court proceeded
in absentia. On the first day of trial, the court dismissed without prejudice
the second of the two possession of drug paraphernalia counts at the State’s
request. The jury found Faccio guilty of the remaining counts. At
sentencing, Faccio admitted four prior felony convictions. The court
sentenced him as a repetitive offender to concurrent terms of
imprisonment, the longest of which is 20 years, with 176 days’ presentence
incarceration credit.

¶6 Faccio timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.1

DISCUSSION

¶7 We have reviewed and considered counsel’s brief, Faccio’s
supplemental brief, and the record for reversible error. See Leon, 104 Ariz.
at 300, 451 P.2d at 881. We find none.

¶8 In his supplemental brief, Faccio argues his counsel was
ineffective. A claim of ineffective assistance of counsel, however, may only
be raised in a Rule 32 proceeding for post-conviction relief, not on direct
appeal. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d
1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
We therefore do not address the merits of this argument.

1 Absent material revisions after the relevant date, we cite the current
version of the statute.

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¶9 Faccio next argues that several alleged procedural errors
warrant reversal. Faccio notes that he “never was indicted.” But the
Arizona Rules of Criminal Procedure allow criminal proceedings to be
initiated by direct complaint (as in Faccio’s case) instead of by indictment.
See Ariz. R. Crim. P. 2.2(b). Although a defendant has a right to a
preliminary hearing when the State proceeds by direct complaint, Faccio
waived that right. See Ariz. R. Crim. P. 5.1(a).

¶10 Faccio also argues that the court erred by proceeding with
trial in his absence. A criminal defendant may waive the right to be present
at any proceeding, including trial, by “voluntarily absenting” himself. Ariz.
R. Crim. P. 9.1. The court may infer voluntariness if the defendant had
personal notice (1) of the time of the proceeding, (2) of the right to be present
at the proceeding, and (3) that the proceeding would go forward in his
absence if he failed to appear. Id. Once these elements are established, the
defendant has the burden to show the absence was involuntary. State v.
Reed, 196 Ariz. 37, 39, ¶ 3, 992 P.2d 1132, 1134 (App. 1999).

¶11 Faccio was present at the hearing setting the trial date and
time and thus had personal knowledge of the time set for trial.
Additionally, Faccio was informed multiple times of his right to attend the
proceedings against him and was warned on multiple occasions (both
orally and in writing) that the proceedings would move forward in his
absence should he fail to appear. The record shows no explanation or
excuse offered by Faccio for his absence. In these circumstances, the
superior court did not err by proceeding in absentia.

¶12 Faccio makes three additional claims of procedural error
without elaboration. First, he states that the State did not provide him full
disclosure, but makes no mention of what material was allegedly not timely
disclosed, how that material would have been relevant, or how the alleged
non-disclosure resulted in prejudice. Second, he mentions—without any
explanation—Arizona Rule of Evidence 607, which allows any party to
impeach a witness. Third, he cites Alejandro v. Harrison, 223 Ariz. 21, 219
P.3d 231 (App. 2009), in which this court held that the superior court may
not refuse to accept an otherwise adequate, unconditional guilty plea to less
than all counts on the sole basis that the State objects. Our review of the
record has not revealed any basis for relief relating to these assertions of
error.

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¶13 Faccio next argues that his Miranda2 rights were violated.
Contrary to Faccio’s position, Detective Clevenger testified that he read
Faccio his Miranda rights before beginning to question him, and that Faccio
agreed to waive those rights and proceed with the interview. The detective
expressly affirmed that Faccio had not been questioned prior to hearing and
waiving his Miranda rights. Faccio has not shown a Miranda violation.

¶14 Faccio also challenges the credibility of the police informant,
C.D. Witness credibility is a question exclusively for the jury, and having
heard C.D.’s testimony, including cross-examination by Faccio’s counsel,
the jury was well situated to gauge C.D.’s credibility and determine the
weight to afford his testimony. See State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174
P.3d 265, 269 (2007).

¶15 Faccio next claims he was denied due process because he was
not permitted to independently weigh the confiscated drugs to dispute the
quantity of drugs involved. Beyond a generalized request that the State
“make available” any and all evidence disclosed, the record reflects that
Faccio did not otherwise pursue independent testing of the drugs.
Moreover, other evidence, including Faccio’s statements to investigators,
further corroborated the weight measurements.

¶16 Faccio also argues the State improperly failed to present
fingerprint or DNA evidence. But the other evidence outlined above—
including C.D.’s testimony (and the recording of the controlled buy), the
location of the drugs and paraphernalia found in Faccio’s apartment, and
Faccio’s admissions to police—provide sufficient support for the
convictions, and a lack of fingerprint or DNA evidence does not establish a
basis for relief.

¶17 Finally, Faccio challenges the propriety of the sentences
imposed. He claims he should not have been subject to an enhanced
sentence as a repetitive offender because he was not given a trial on priors.
At the sentencing hearing, however, Faccio admitted to four prior felony
convictions after an appropriate colloquy delineating his constitutional
rights and the consequences of admitting to the priors. See Ariz. R. Crim.
P. 17.6. In light of Faccio’s admissions, no further evidence was necessary
to establish these four prior (including two historical prior) felony
convictions, and Faccio was properly sentenced as a category three
repetitive offender. See A.R.S. § 13-703(C).

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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¶18 Faccio further contends that the sentences imposed were cruel
and unusual, particularly in light of the disparity between his sentences
(three concurrent terms, the longest of which is 20 years) and those imposed
on his girlfriend (1.5 years’ imprisonment followed by 3 years’ probation).
Faccio’s sentences fall within the range prescribed by law given the
circumstances of his case, including the severity of the offenses (class 2, 4,
and 6 felonies), aggravating and mitigating factors, and Faccio’s criminal
history of at least four prior felony offenses. Faccio’s girlfriend, although
initially charged as a co-defendant on all counts, later entered a plea of
guilty to two amended, lesser counts pursuant to a plea agreement with the
State. Additionally, Faccio’s girlfriend (unlike Faccio) was not sentenced as
a repetitive offender. Because Faccio and his girlfriend were not similarly
situated, the disparity in their sentences does not support Faccio’s
contention that the sentences he received were cruel and unusual.

¶19 Faccio was represented by counsel at all stages of the
proceedings. The record reflects that the superior court afforded Faccio his
rights under the federal and state constitutions, and that the proceedings
were conducted in accordance with Arizona statutes and the Arizona Rules
of Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts. Faccio’s sentences fall within the range
prescribed by law, with proper credit given for presentence incarceration.

¶20 After the filing of this decision, defense counsel’s obligations
pertaining to Faccio’s representation in this appeal will end after informing
Faccio of the outcome of this appeal and his future options. See State v.
Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Faccio shall
have 30 days from the date of this decision to proceed, if he desires, with a
pro se motion for reconsideration or petition for review.

CONCLUSION

¶21 For the foregoing reasons, we affirm Faccio’s convictions and
sentences.

:jt

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