State v. Walker

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PAUL SAMUEL WALKER, Appellant.

No. 1 CA-CR 15-0105
FILED 2-16-2016

Appeal from the Superior Court in Mohave County
No. S8015CR201400859
The Honorable Rick A. Williams, Judge

AFFIRMED AS MODIFIED

COUNSEL

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

Law Office of Daniel DeRienzo, PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Appellant
 STATE v. WALKER
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 Paul Samuel Walker (“Defendant”) appeals his convictions
for possession of a dangerous drug for sale and possession of drug
paraphernalia.

¶2 This case comes to us as an appeal under Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defendant’s
appellate counsel raises several issues for review: (1) Defendant’s request
to represent himself at trial; (2) the trial court’s denial of Defendant’s
motion for change of counsel; (3) the trial court’s denial of Defendant’s
motion at the final management conference to continue the trial; (4) the
trial court’s denial of the motion for a directed verdict; and (5) the legality
of the stop and search of Defendant’s truck and seizure of its contents.
Defendant did not file a supplemental brief.

¶3 Having searched the record and considered the briefing, we
discern no fundamental error. We therefore affirm Defendant’s
convictions, but we modify his sentences to reflect the correct credit for
presentence incarceration.

FACTS AND PROCEDURAL HISTORY

¶4 In June 2014, Defendant approached a 17-year-old girl
(“Witness”), her sister, and a friend as the group left a Narcotics
Anonymous (“NA”) meeting. Defendant drove a distinctive white pick-
up truck with “Paul Walker 702” in large letters on the side and several
large speakers visible from the back. He pulled over to the side of the
road and began talking to them. After Witness said she was coming from
an NA meeting, he displayed a case containing syringes and baggies with
what appeared to be methamphetamine and said if they wanted a
“hookup” to look him up on social media as “Paul Walker 702.” Witness
became upset because she had been a methamphetamine user; she left
with her sister. When she arrived at home, she told her mother about her
conversation with Defendant, and her mother called the police.

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¶5 After the report, a patrol officer spotted the truck Witness
described and stopped it. When the officer asked for his license,
Defendant admitted that he was driving with a suspended license, which
the officer testified he confirmed. Because of the admitted suspended
license, the officer called for a tow truck and conducted an inventory
search of the truck. He found a digital scale, a black and silver case with
four bags of a white crystalline substance, two used syringes, one loaded
syringe, and two hand-held electronic devices. The crime lab later
determined the substance was approximately 98 grams of
methamphetamine, over three ounces. When the officer questioned
Defendant later at the station, he initially denied using methamphetamine.
But after the officer spotted fresh “track marks” consistent with
intravenous methamphetamine use, Defendant admitted to using drugs to
get back at his girlfriend for her cheating and drug use, but he denied any
intention to sell.

¶6 He was later charged with possession of dangerous drugs
for sale, possession of drug paraphernalia and driving with a suspended
license. Defendant asked to represent himself, and the trial court
informed him of the consequences of self-representation. It explained to
Defendant that if he were convicted, he would be facing a prison sentence
of five to fifteen years. The court characterized self-representation as a
“bad idea” and advised him that “things generally don’t go well when
people represent themselves.” The court also informed Defendant that he
would have to have an additional hearing and sign a waiver in order to
represent himself. When the court asked if he still intended to represent
himself, Defendant stated that he was “fine with keeping [current
counsel].”

¶7 Defendant later requested a change of counsel because his
attorney did not file motions to modify release conditions and to continue
the trial at Defendant’s request. He stated that he wanted the trial date to
be postponed and to be released in order to make more money for his
family in the event he was convicted and incarcerated. His counsel
refused to file the motion because he felt it was not a valid reason for a
continuance, which the court confirmed. The court denied the request to
change counsel, finding that Defendant’s counsel was adequately
preparing for trial and had not engaged in any improper conduct. During
the final trial management conference, Defendant’s counsel requested a
continuance. Defendant had disclosed some witness names before the
conference, and counsel wanted time to interview the witnesses before
trial. The state protested that a continuance would conflict with another

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case and might affect the availability of witnesses, and the court denied
the motion.

¶8 At trial, the investigating officer testified that a person with
multiple ounces of methamphetamine is typically selling; common use is
only a tenth of a gram. He also testified that possessing packaging, scales
and ledgers also pointed to intent to sell. Witness also testified to her
encounter with Defendant and her belief that he was trying to sell her
methamphetamine.

¶9 The court granted Defendant’s Rule 20 motion on the charge
of driving with a suspended license; though Defendant admitted to
driving with a suspended license and the officer claimed he verified
Defendant’s statement, the state presented no evidence demonstrating
that his license was suspended. But the court denied the motion on the
other charges.

¶10 Defendant elected to testify. He testified that he was using
methamphetamine self-destructively after he had his child taken by
authorities in another state and he left his girlfriend. He claimed his
intentionally abusive use explained the unusually large amount of drugs
he had, and that he had used 13 grams in two to three days. He testified
that he began talking to Witness because she had remarked on the size of
his speakers; the “hookup” he referred to was not methamphetamine but
a demonstration of his audio equipment. The jury convicted him on both
remaining counts. Defendant was sentenced to five years in prison with
149 days of presentence incarceration credit for possession of dangerous
drugs with intent to sell, and four months to run concurrently for
possession of drug paraphernalia. Defendant appeals.

DISCUSSION

¶11 Defendant did not submit a supplemental brief, but his
counsel suggests several areas for review: (1) Defendant’s request to
represent himself at trial; (2) the trial court’s denial of Defendant’s motion
for change of counsel; (3) the trial court’s denial of Defendant’s motion at
the final management conference to continue the trial; (4) the trial court’s
denial of the Rule 20 motion for a directed verdict on Counts 1 and 2; and
(5) the legality of the stop and search of Defendant’s truck and the seizure
of its contents.

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I. DEFENDANT’S REQUEST TO REPRESENT HIMSELF AT TRIAL

¶12 A defendant has a constitutional right to represent himself if
he waives the assistance of counsel “knowingly and intelligently.” Faretta
v. California, 422 U.S. 806, 835 (1975) (citation omitted). Before he can
waive his rights, he must be made aware of the risks of self-
representation. State v. McLemore, 230 Ariz. 571, 578, ¶ 22 (2012). He
should be made to understand “(1) the nature of the charges against him,
(2) the dangers and disadvantages of self-representation, and (3) the
possible punishment upon conviction.” Id. (citation omitted). If the court
erroneously denies a defendant the right to represent himself by waiving
counsel, we must reverse. Id. at ¶ 23.

¶13 Defendant here voluntarily withdrew his request to
represent himself. The court explained to Defendant that if he was
convicted, he would be facing a prison sentence of five to fifteen years.
The court characterized self-representation as a “bad idea” and advised
him that “things generally don’t go well when people represent
themselves.” The court also informed him that he would have to have an
additional hearing and sign a waiver in order to represent himself. When
the court asked if he still intended to represent himself, Defendant stated
he was “fine with keeping [current counsel].” While the court dissuaded
Defendant from representing himself, it did not deny him the right. There
was no error.

II. DENIAL OF MOTION FOR CHANGE OF COUNSEL

¶14 A defendant has a constitutional right to competent
representation. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. He does
not, however, have the right to “counsel of choice, or to a meaningful
relationship with his . . . attorney.” State v. Moody, 192 Ariz. 505, 507, ¶ 11
(1998). The court considers several factors in determining whether a
substitution of counsel is necessary, including “whether an irreconcilable
conflict exists between counsel and the accused, and whether new counsel
would be confronted with the same conflict; the timing of the motion;
inconvenience to witnesses; the time period already elapsed between the
alleged offense and trial; the proclivity of the defendant to change counsel;
and quality of counsel.” State v. LaGrand, 152 Ariz. 483, 486-87 (1987). We
review the court’s denial of the motion for change of counsel for an abuse
of discretion. Id.

¶15 Here, Defendant requested a change of counsel because his
attorney did not file motions to modify release conditions and to continue
the trial date at Defendant’s request. His counsel had refused because he

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did not think Defendant’s reason for a continuance was valid, which the
court confirmed. The court found that Defendant’s counsel was preparing
for trial and had not engaged in any improper conduct. As that was
Defendant’s only complaint about counsel, there was no other evidence of
irreconcilable conflict between Defendant and counsel. The court did not
abuse its discretion.

III. DENIAL OF MOTION TO CONTINUE TRIAL

¶16 The court must grant a continuance “only upon a showing
that extraordinary circumstances exist and that delay is indispensable to
the interests of justice.” Ariz. R. Crim. P. 8.5(b). It considers “the rights of
the defendant and any victim to a speedy disposition of the case” in
making a decision. Id. We review a denial of a motion to continue for an
abuse of discretion and will not reverse unless the “discretion has been
abused so as to result in prejudice to the defendant.” State v. Blodgette, 121
Ariz. 392, 394 (1979).

¶17 Defendant’s counsel requested the continuance at the final
management conference because Defendant had not revealed potential
witnesses to him, and counsel wanted to interview potential witnesses
before the trial. The court denied the motion because the December trial
date was fixed in September, giving Defendant ample opportunity to
disclose defense witnesses to counsel and have them interviewed. There
was no showing that these witnesses could not reasonably have been
revealed to counsel in a timely manner, nor does the record reveal that
their testimony would have been critical to the defense. Given the facts
here, the trial court did not abuse its discretion.

IV. DENIAL OF RULE 20 MOTION ON COUNTS 1 AND 2

¶18 The court is required to enter a judgment of acquittal “if
there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P.
20(a). Substantial evidence is “such proof that reasonable persons could
accept as adequate and sufficient to support a conclusion of defendant’s
guilt beyond a reasonable doubt.” State v. Harm, 236 Ariz. 402, 406, ¶ 11
(App. 2015) (citation and internal quotation marks omitted). We examine
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.” State v. Buccheri-
Bianca, 233 Ariz. 324, 330-31, ¶ 24 (App. 2013) (citation omitted). We
review a denial of a motion for judgment of acquittal de novo. State v.
Bon, 236 Ariz. 249, 251, ¶ 5 (App. 2014).

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¶19 Regarding Count 1, the state had to prove that Defendant
knowingly possessed a dangerous drug for sale. A.R.S. § 13-3407(A)(2).
Methamphetamine is a dangerous drug pursuant to A.R.S. § 13-
3401(6)(c)(xxxviii). For Count 2, the state had to prove that Defendant
used, or possessed and intended to use, drug paraphernalia to “plant,
propagate, cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale or otherwise introduce [an illegal drug] into
the human body.” A.R.S. § 13-3415(A). Drug paraphernalia can be any
equipment, products or materials used for those purposes, including
hypodermic needles and scales. A.R.S. § 13-3415(F)(2)(e), (k).

¶20 The state presented substantial evidence of each element of
the two charges. For the possession of drug paraphernalia charge,
Defendant did not deny that he possessed the syringes and scale or that he
intended to use them. The officer found in his truck at least one empty,
used syringe, and at least one loaded and ready to use. Given Defendant’s
admission concerning the paraphernalia and the evidence police found in
the truck to support it, the court properly denied the Rule 20 motion on
Count 2.

¶21 Regarding Count 1, Defendant did not deny that he
knowingly possessed methamphetamine, only that he intended to sell it.
The crime lab technician confirmed that the substance found in
Defendant’s truck was methamphetamine. The investigating officer
testified that the quantity that Defendant possessed usually indicated an
intent to sell because it was substantially more than a heavy user would
use in several months’ time. He also testified that it would be unusual for
a dealer to sell a large quantity to someone he did not know. In the truck,
Defendant also had a scale, which could support an inference that he
intended to sell the drug. Witness testified that he had approached her
and told her how to contact him if she wanted a “hookup,” which she took
to mean a drug sale. The court properly denied the Rule 20 motion on
Count 1.

V. LEGALITY OF STOP AND SEARCH OF TRUCK AND SEIZURE
OF CONTENTS

¶22 The Fourth Amendment guarantees protection against
unreasonable searches and seizures. U.S. Const. amend IV. However, law
enforcement officers may stop a vehicle when they have articulable,
reasonable suspicion based on the totality of the circumstances that it was
involved in criminal activity. State v. Teagle, 217 Ariz. 17, 22-23, ¶ 20 (App.
2007). When the arresting officer pulled Defendant over, the officer had

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taken Witness’s statement about her encounter with Defendant and
received a noise complaint related to Defendant’s truck. At the very least,
the officer would reasonably believe Defendant was in possession of
dangerous drugs at the time he stopped the vehicle.

¶23 Warrantless searches are presumed illegal unless they are
justified by one of the “jealously and carefully drawn” exceptions to the
warrant requirement. Jones v. United States, 357 U.S. 493, 499 (1958). One
such exception is the inventory search. Police may conduct an inventory
search of a vehicle if it is “conducted pursuant to standardized criteria and
not because of mere suspicions of criminal activity.” State v. Jones, 185
Ariz. 471, 482 (1996) (citation omitted). Defendant told the officer he was
driving with a suspended license, which required towing the truck away
pursuant to A.R.S. § 28-3511(A)(1)(a). The truck was then lawfully in
police custody, and the standard procedure was to conduct an inventory
search. The methamphetamine and paraphernalia were visible in the
truck at the time the officer opened the passenger-side door. The search
fell within a lawful exception to the warrant requirement. State v. Organ,
225 Ariz. 43, 48, ¶¶ 21-22 (App. 2010).

¶24 Finally, Defendant was present and represented by counsel
at all critical stages of the proceedings. The jury was properly composed
of 8 jurors and selected without any evidence of bias. The evidence
presented at trial supported Defendant’s convictions. The prosecutor did
not make any improper arguments in closing. Defendant received a legal
sentence under A.R.S. § 13-702. The court credited him with 149 days of
presentence incarceration credit. The record reflects, however, that
Defendant was entitled to 161 days of presentence incarceration credit
under A.R.S. § 13-712(B). The miscalculation constitutes fundamental
error. State v. Ritch, 160 Ariz. 495, 498 (App. 1989). We therefore modify
Defendant’s sentences to reflect 161 days of presentence incarceration
credit. See A.R.S. § 13-4037(A); State v. Stevens, 173 Ariz. 494, 496 (App.
1992).

CONCLUSION

¶25 For the foregoing reasons, we affirm Defendant’s
convictions, and we affirm his sentences as modified.

¶26 Defense counsel’s obligations pertaining to this appeal have
come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Unless,
upon review, counsel discovers an issue appropriate for petition for
review to the Arizona Supreme Court, counsel must only inform
Defendant of the status of this appeal and his future options. Id.

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Defendant has 30 days from the date of this decision to file a petition for
review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court’s
own motion, Defendant has 30 days from the date of this decision in
which to file a motion for reconsideration.

:ama

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