State v. Totress

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TOMMY MAURICE TOTRESS, Appellant.

No. 1 CA-CR 15-0549
1 CA-CR 15-0550
FILED 8-30-2016

Appeal from the Superior Court in Maricopa County
No. CR2009-164010-001
CR2012-149563-001
The Honorable Daniel J. Kiley, Judge

AFFIRMED AS CORRECTED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

N O R R I S, Judge:

¶1 Tommy Maurice Totress timely appeals from his convictions
and sentences in Maricopa County cause number CR2012-149563-001
(“2012 case”) for possession for sale of narcotic drugs (crack cocaine), a class
2 felony (Count 1); possession for sale of narcotic drugs (cocaine), a class 2
felony (Count 2); possession of drug paraphernalia (scales), a class 6 felony
(Count 3); possession of drug paraphernalia (baking soda and/or a pot), a
class 6 felony (Count 4); possession or use of marijuana, a class 6 felony
(Count 5); and from the resulting revocation of his probation and
disposition in Maricopa County cause number CR2009-164010-001 (“2009
case”). After searching the record on appeal and finding no arguable
question of law that was not frivolous, Totress’ counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking
this court to search the record for fundamental error. This court granted
counsel’s motion to allow Totress to file a supplemental brief in propria
persona, but Totress did not do so. After reviewing the entire record in the
2012 case and all relevant portions of the record regarding the superior
court’s revocation of probation in the 2009 case, we find no fundamental
error. Therefore, we affirm Totress’ convictions, sentences, probation
revocation, and disposition as corrected.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On September 18, 2012, a detective went to Totress’ home to
arrest him for an alleged violation of his probation in the 2009 case. The
detective arrived at the house, watched Totress leave the house by car,
followed him, and called in other officers to assist in arresting Totress.

¶3 After being stopped by police, Totress jumped from the car
and ran across two busy streets to a car wash. The detective chased Totress

1We view the facts in the light most favorable to sustaining
the jury’s verdicts and resolve all reasonable inferences against Totress.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

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Decision of the Court
and caught him shortly after he saw Totress discard a small bag of
marijuana. The detective then searched Totress’ pockets and found 30
grams of crack cocaine, 11 grams of cocaine, and about $500.

¶4 After the detective advised Totress of his Miranda rights,
Totress told the detective he had “crack, cocaine and weed in [his] pocket.”
The detective searched the car and found cooking pots, a ladle, a butter
knife, a glass beaker, a glass jar, and three digital scales. Totress told the
detective that “everything in that vehicle is mine” and said he used pots,
spoons, and glass jars “[t]o make crack.” He also admitted to using and
selling crack cocaine.

¶5 A twelve-person jury found Totress guilty on all counts in the
2012 case, as discussed above. See supra ¶ 1. After the jury returned its guilty
verdicts, it found beyond a reasonable doubt that Totress had committed
Counts 1 and 2 in the 2012 case as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value and that he had
committed all of the 2012 offenses while on probation for a felony offense.

¶6 The superior court sentenced Totress to aggravated sentences
of 15 years’ imprisonment for Counts 1 and 2 and to aggravated sentences
of two years’ imprisonment for Counts 3, 4, and 5, with all sentences in the
2012 case to run concurrently.

¶7 The superior court also revoked Totress’ probation in the 2009
case. See Ariz. R. Crim. P. 27.8(e). The court then sentenced him to two and
a half years’ imprisonment with 349 days of presentence incarceration
credit. It ordered the 2012 case concurrent sentences to be consecutive to the
term of imprisonment imposed in the 2009 case.

DISCUSSION

¶8 We have reviewed the entire record in the 2012 case and all
relevant portions of the record regarding the revocation of probation in the
2009 case for reversible error and find none.2 See Leon, 104 Ariz. at 300, 451

2The record reflects the superior court gave contradictory
preliminary instructions to the jury on how it should assess stipulated facts.
First, the court instructed the jury it should “treat a stipulation as any other
evidence. You’re free to accept or reject it, in whole or in part, just as any
other evidence.” Then the court instructed the jury that “if the lawyers for
both sides agree or stipulate that some particular fact is true, you should
accept it as the truth.” In the final instructions, however, the court correctly

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P.2d at 881. In the 2012 case, Totress received a fair trial and was
represented by counsel at all stages of the proceedings. Totress was not
present for trial, but pursuant to Ariz. R. Crim. P. 9.1 the superior court
found Totress had waived his right to be present at trial by voluntarily
absenting himself from it. The record supports the superior court’s finding
that Totress had notice of the trial setting and had been warned on multiple
occasions that trial would proceed in his absence. The probation revocation
proceedings also substantially complied with the Arizona Rules of Criminal
Procedure.

¶9 The evidence presented at trial in the 2012 case was
substantial and supports the verdicts. The court properly instructed the jury
on the elements of the charges, Totress’ presumption of innocence, the
State’s burden of proof, and the necessity of a unanimous verdict. The
superior court received and considered a presentence report, Totress spoke
at the sentencing and disposition hearings, and his sentences in the 2012
case and 2009 case were within the range of acceptable sentences for his
offenses.

¶10 In our review of the record we discovered two errors in the
superior court’s sentencing and disposition minute entries. In the
sentencing minute entry in the 2012 case, the superior court found the
offenses were repetitive because the 2009 conviction was a historical prior.
The minute entry, however, listed Arizona Revised Statutes (“A.R.S.”)
section 13-702 (2010), a statute that pertains to first-time felony offenders.3
We therefore correct this sentencing minute entry to replace A.R.S. § 13-702
(2010) with A.R.S. § 13-703 (Supp. 2015), which pertains to repeat offenders.
In the disposition minute entry in the 2009 case the superior court listed
A.R.S. § 13-312, a statute that did not exist in 2009. We correct the minute
entry to omit the reference to A.R.S. § 13-312.

instructed the jury as it initially did in the preliminary instructions. State v.
Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247 (2009) (noting that
“stipulations do not bind the jury, and jurors may accept or reject them”).
Given the court’s final instructions, the inconsistency regarding stipulations
in the preliminary instructions does not amount to reversible error.

3Although the Arizona Legislature amended certain statutes
cited in this decision after the date of Totress’ offenses, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.

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CONCLUSION

¶11 We decline to order briefing and affirm Totress’ convictions,
sentences, probation revocation, and disposition as corrected.

¶12 After the filing of this decision, defense counsel’s obligations
pertaining to Totress’ representation in this appeal have ended. Defense
counsel need do no more than inform Totress 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, 684 P.2d 154, 156-57
(1984).

¶13 Totress has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Totress 30 days from the date of this decision to
file an in propria persona motion for reconsideration.

Amy M. Wood • Clerk of the court
FILED: AA

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