State v. Irvin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEONARD DEON IRVIN, Appellant.

No. 1 CA-CR 17-0295
FILED 12-20-2018

Appeal from the Superior Court in Maricopa County
No. CR2014-122135-001
The Honorable Christine E. Mulleneaux, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant

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

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.

B E E N E, Judge:

¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
following Leonard Deon Irvin’s (“Irvin”) convictions for possession or use
of a narcotic drug, a class 4 felony, and the possession or use of marijuana,
a class 6 felony. Irvin’s counsel searched the record on appeal and found
no arguable question of law that is not frivolous. See State v. Clark, 196
Ariz. 530 (App. 1999). Counsel now asks us to search the record for
fundamental error. Irvin was given the opportunity to file a supplemental
brief in propria persona and elected to do so. After reviewing the entire
record, we affirm Irvin’s convictions and sentences.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In May 2014, a Phoenix police officer made contact with Irvin
near the area of 12th Avenue and Pima Street. This contact resulted in an
arrest for an unrelated matter. A search of Irvin, incident to his arrest,
produced marijuana and cocaine.

¶3 At trial, a jury found Irvin guilty of possession of marijuana
and possession of a narcotic drug, cocaine. He was sentenced to
presumptive sentences of 3.75 and ten years, respectively. Irvin timely
appeals. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶¶ 2-3 (App. 2015) (citation omitted).

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DISCUSSION

I. Adjudication is Within the Jurisdiction of the Arizona Superior
Court.

¶4 While conceding the jurisdiction of this Court on appeal, Irvin
argues in supplemental briefing that the superior court lacked jurisdiction
to adjudicate his criminal case. The superior court has original jurisdiction
for all felony criminal cases as established by the Arizona Constitution and
recognized by statute. Ariz. Const. art. VI, § 14(4); A.R.S. § 12-123.

¶5 Trial testimony, including Irvin’s, establishes that Irvin’s
interactions with police, as well as his arrest, took place near the intersection
of 12th Avenue and Pima Street in Maricopa County. The Arizona Superior
Court in Maricopa County was within its jurisdiction to adjudicate the case.

II. The Record Does Not Support Irvin’s Contention of Brady
violations.

¶6 Irvin asserts the superior court abused its discretion in failing
to find the State violated Brady v. Maryland, 373 U.S. 83 (1963), related to the
disclosure of personnel records and a surveillance video. To establish a
violation under Brady, Irvin has the burden of proving the State failed to
disclose exculpatory evidence that was material to his guilt or punishment
and within the possession or control of the State or a law enforcement
agency acting as the arm of the prosecution. See State v. Benson, 232 Ariz.
452, 460, ¶ 24 (2013); State v. Meza, 203 Ariz. 50, 55, ¶ 21 (App. 2002).
Material to guilt or punishment means “a reasonable probability that, had
the exculpatory evidence been disclosed, the result of the proceeding would
have been different.” State v. Tucker, 157 Ariz. 433, 438 (1988) (citing United
States v. Bagley, 473 U.S. 667, 685-86 (1985)).

A. The court did not abuse its discretion by denying Irvin’s
motions for disclosure of officer personnel records.

¶7 The superior court has “broad discretion over discovery
matters, . . . is in the best position to rule on discovery requests,” and will
not be overturned absent an abuse of discretion. State v. Fields, 196 Ariz.
580, 582, ¶ 4 (App. 1999). “Information is not discoverable unless it could
lead to admissible evidence or would be admissible itself.” Id. To prevail
on a violation of Brady, Irvin must establish that the personnel records
contain material evidence and he is not merely on a “blind fishing
expedition.” State v. Acinelli, 191 Ariz. 66, 71 (App. 1997); see also State v.

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Robles, 182 Ariz. 268, 272 (App. 1995). Speculation alone is not sufficient to
compel the records. Acinelli, 191 Ariz. at 71.

¶8 Irvin claims law enforcement personnel records would cast
doubt on the credibility of officer testimony and were necessary for
purposes of officer impeachment. Irvin supports this claim by stating that
one testifying officer made an “admission to prior reprimands for
untrustworthiness and untruthfulness. . . .” The transcript does not support
allegations of officer untruthfulness. Rather, the officer admits to only a
missed court appearance and a data-entry error, neither of which relate to
either Irvin’s case or untruthfulness. Irvin cites no specific reasons as to
why the other officers’ personnel records would contain material
impeachment evidence.

¶9 Irvin fails to establish the records were material to his guilt or
punishment or the probability his trial-results would have been different
had the records been disclosed. The trial court did not abuse its discretion
in denying Irvin’s motion to compel disclosure of the personnel records.

B. The court did not abuse its discretion by denying
Irvin’s motion to compel disclosure of a surveillance video.

¶10 Irvin claims a Brady violation occurred due to failure to
preserve and disclose a surveillance video he alleges captured exculpatory
evidence during his arrest. As support, Irvin provides photographs of
video cameras near the arrest location. Irvin concedes the photographs
were taken more than two years after his arrest. Irvin fails to prove the
cameras were in place or captured his 2014 arrest. The State denies the
existence and its possession of a surveillance video that depicts Irvin’s
arrest.

¶11 Irvin fails to prove material evidence existed within the
State’s control that would likely change the results in his case, supra ¶¶ 6-7.
The superior court did not abuse its discretion by denying disclosure of the
surveillance video.

III. The Court Did Not Abuse its Discretion by Allowing Testimony
of Irvin’s Prior Bad Acts.

¶12 Irvin alleges he was prejudiced by testimony that he had
“been convicted of a felony[,] associated with convicted felons who
engaged as a matter of course in illegal activities while incarcerated, that he
was [a] gang member and that he had a gang tattoo on his chest.”
Generally, all relevant evidence is admissible; but, “[t]he court may exclude

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relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . . “ Ariz. R. Evid. 402, 403. Still, if a party
invites error or opens the door to a line of inquiry, the evidence may become
admissible even if it would be otherwise barred. See State v. Fish, 222 Ariz.
109, 124 n.11, ¶ 48 (App. 2009). “[I]n essence the open door or invited error
doctrine means that a party cannot complain about a result he caused.“
State v. Kemp, 185 Ariz. 52, 60-61 (1996) (citation omitted). “We review a
trial court’s evidentiary decisions for an abuse of discretion, giving
deference to its determination on relevance, and unfair prejudice.” State v.
Smith, 215 Ariz. 221, 232, ¶ 48 (2007) (citations omitted).

¶13 Here, the superior court considered the admissibility of
multiple pieces of evidence. The court ruled the State was not permitted to
mention why police initially made contact with Irvin. Further, the court
limited the State’s mention of Irvin’s prior convictions to only felony-
conviction case numbers, without mentioning the type of crime. The court
also limited the State’s mention of Irvin’s gang status, yet warned Irvin that
impeachment would be permitted, if Irvin opened the door by denying
gang affiliation.

¶14 During trial, Irvin’s actions opened the door to admissibility
of each of these areas of evidence. During an attempt to impeach a law
enforcement officer, Irvin opened the door to gang-related evidence when
discussing conversations that occurred the night of his arrest. Later, as Irvin
exercised his right to testify, he admitted his arrests for prior felonies and
having served time in prison. Further, he admitted to having tattoos but
claimed they were associated with a nonprofit group that helps inmates
learn to read and write. The State responded by impeaching Irvin with his
gang affiliation. Finally, in testimony and in closing argument, Irvin
disclosed that his initial contact with police was related to an outstanding
warrant. The superior court did not abuse its discretion by permitting the
admission of Irvin’s statements or those elicited through Irvin’s
questioning.

IV. The Superior Court Did Not Abuse Its Discretion by Denying
Irvin’s Request for the Audio Recording of the Trial Proceedings.

¶15 Irvin claims “there are numerous errors and omissions in the
transcript of the trial court proceedings” and requests audio recordings for
comparison. Arizona rules require that a trial proceeding be transcribed
and certified by an authorized court reporter and that this transcript be the
official record of the proceeding. Ariz. R. Crim. P. 31.8(b), (c); Ariz. R. Sup.
Ct. 30(b)(4). Further, “[t]he transcript . . . shall be deemed prima facie a

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correct statement of the testimony taken and proceedings had. No
transcripts of the proceedings of the court shall be considered as official
except those made from the records certified by the reporter or other
authorized transcriber.” Id.

¶16 This Court has twice denied Irvin’s requests for audio
recordings, finding he “fails to identify any alleged inaccuracies, and
counsel did not object after this court issued the notice of completion.” In
supplemental briefing, Irvin adds only his own recollection of the
proceeding to support his claim of inaccuracy.

¶17 The superior court ensured transcription and certification by
an authorized court reporter and provided this official record to Irvin. The
superior court did not abuse its discretion in denying Irvin’s request.

V. The Court Did Not Abuse Its Discretion by Sentencing Irvin to
Prison.

¶18 Irvin claims the superior court erred by sentencing him to
mandatory prison time as a category three offender under the sentencing
guidelines. Irvin claims he was “never made aware of the State’s allegation
of dangerous or violent nature of prior offense for the purpose of
precluding probation,” and “[t]he trial court never conducted a hearing
regarding whether to allow or deny the allegation of a dangerous or violent
prior before trial[.]”

A. The record supports ineligibility for mandatory
probation.

¶19 With some exceptions, a person convicted for a second time
of personal possession or use of a controlled substance is eligible for
probation. A.R.S. § 13-901.01(A). One of the exceptions is a prior conviction
for a violent crime, which triggers ineligibility for mandatory probation.
A.R.S. § 13-901.01(B). A violent crime is defined as “any criminal act that
results in death or physical injury or any criminal use of a deadly weapon
or dangerous instrument.” A.R.S. § 13-901.03(B). A defendant is entitled to
know prior to trial that his prior conviction for a violent crime renders him
probation-ineligible. State v. Benak, 199 Ariz. 333, 338, ¶ 19 (App. 2001).

¶20 In the instant case, Irvin was convicted of possession of a
narcotic drug and possession of marijuana. Prior to trial and pursuant to
A.R.S. § 13-703, the State filed an allegation of dangerous and non-
dangerous historical felonies that included two same-incident convictions
for possession of marijuana and possession of drug paraphernalia from

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August 2003. This allegation also listed a January 1990 aggravated assault
conviction as well as three other nonviolent, nondrug-related felonies.
Separately, the State filed an allegation to notice Irvin’s ineligibility for
probation, expressly citing Benak and A.R.S. §§ 13-703 (repetitive offender),
704 (dangerous offenders), 901.01 (drug charge probation eligibility), 901.03
(allegation of violent crime). This ineligibility allegation listed only the
January 1990 conviction for aggravated assault.

¶21 The superior court held evidentiary hearings, considered
admissibility of evidence for trial, and admitted sentencing-related exhibits
from both parties. The sentencing record includes an Arizona Department
of Corrections Automated Summary Report (“DOC Report”) that lists each
of the convictions alleged by the State, supra ¶ 20, as well as a minute entry
pertaining to the January 1990 aggravated assault (“minute entry”). In
relevant part, this minute entry documents the aggravated assault
conviction pursuant to A.R.S. § 12-1203(A)(1), which states: “A person
commits assault by: 1. Intentionally, knowingly or recklessly causing any
physical injury to another person,” and, thus, established that a physical
injury occurred as a result of this criminal act. Irvin’s aggravated assault
conviction, therefore, meets the definition of “violent crime,” supra ¶ 19,
and makes Irvin ineligible for mandatory probation. The court did not
abuse its discretion by finding Irvin ineligible for probation.

B. The record supports the sentence classification of
category three.

¶22 Possession of marijuana in an amount under two pounds is a
class 6 felony, see A.R.S. § 13-3405(A)(1), (B)(1), and possession of a narcotic
drug is a class 4 felony, see A.R.S. § 13-3408(A)(1), (B)(1). Further, the
repetitive offender statute provides a person with a prior felony conviction
may be classified as a “category three” repetitive offender if the person is at
least eighteen years of age and convicted of two or more historical prior
felony convictions. A.R.S. § 13-703(C). The presumptive sentence for a
category three repetitive offender for a class 4 felony is ten years and for a
class 6 felony is 3.75 years. A.R.S. § 13-703(J).

¶23 The record shows the State alleged Irvin’s prior felony
convictions, supra ¶ 20, and the court admitted the DOC report and a
minute entry as evidence of Irvin’s criminal record, supra ¶ 21. These
documents support the statutory requirement of at least two historical prior
felony convictions and Irvin’s classification as a category three repetitive
offender. Consistent with the sentencing guidelines for a category three

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offender, Irvin was sentenced to concurrent presumptive sentences—ten
years for the class 4 felony and 3.75 years for the class 6 felony.

¶24 Furthermore, in making a sentencing determination, the
superior court reviewed the presentence report, considered aggravating
and mitigating factors, and provided Irvin with an opportunity to speak at
sentencing. The superior court did not abuse its discretion in the
consideration and imposition of the sentence, nor by sentencing Irvin to the
presumptive, concurrent sentences of incarceration given his prior
convictions.

C. Irvin received notice of the sentencing range.

¶25 Fundamental fairness requires Irvin be adequately notified of
his potential punishment before trial, so that he can accurately weigh
whether to proceed to trial and avoid being “misled, surprised or deceived
in any way by the allegations of prior convictions.” Benak, 199 Ariz. at 337,
¶¶ 14, 16, 18 (discussing adequacy of pretrial notice) (quotations omitted).

¶26 In addition to the notices of allegations filed by the State, supra
¶ 20, the record shows Irvin was verbally notified of his potential
punishment. On June 20, 2014, Irvin was told that he “face[d] mandatory
Department of Corrections time in category three on all counts,” and he
“would serve a range of six to 15 years” for count 1 and “a range of 2.25
years to 5.75” for count 2, and that “[t]hese prison terms could run
consecutively or concurrently.” The court reiterated the penalty, stating
“because of your prior convictions, if the State’s able to prove at least two
prior convictions, that you’re facing no less than six years, a presumptive
of ten years, and it could go as high as 15 years.” On May 3, 2016, these
penalties were reviewed and the court added “[r]ealistically, I think the
judge will start around 10 [years] and be in that range. I don’t know how
you would get down to six years with the amount of criminal history that
you have.” Further, the State offered to stipulate to a plea agreement with
a maximum of five years, but Irvin chose to proceed to trial. On November
30, 2016, Irvin confirmed his understanding that he faced “between 6 and
15 years” on count 1 and “2.25 years and 5.75 years with regard to count 2,”
as well as his awareness that he would be sentenced as a “category 3 after
trial” and “not eligible for probation[.]” Irvin was adequately notified
before trial of his potential punishment and able to weigh whether to
proceed to trial.

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VI. The Record Reflects No Fundamental Error.

¶27 Further review of the record reflects no fundamental error in
pretrial or trial proceedings. The jury was properly composed of eight
members and two alternates. The State presented direct and circumstantial
evidence sufficient for a reasonable jury to convict beyond a reasonable
doubt. The court appropriately instructed the jury on the elements of the
charges. The key instructions concerning burden of proof, presumption of
innocence, reasonable doubt, and the necessity of a unanimous verdict were
properly administered. The jury returned unanimous guilty verdicts on all
counts.

¶28 Irvin was represented by counsel at all critical stages of the
proceeding. At times, his counsel was advisory, consistent with Irvin’s
invocation of his right to self-representation. See Ariz. R. Crim. P. 6.1(c).
“The right to waive counsel and proceed in propria persona is a
constitutionally guaranteed right,” so long as the defendant “knowingly,
intelligently, and voluntarily” waives the assistance of counsel. State v.
Russell, 175 Ariz. 529, 531 (App. 1993) (citations omitted).

¶29 Irvin signed the waiver of counsel form and confirmed in
writing his desire to represent himself and his understanding of the value
of lawyer assistance. Additionally, Irvin was cautioned on the record of the
dangers and disadvantages of self-representation. See State v. Raseley, 148
Ariz. 458, 462 (App. 1986). Finally, Irvin demonstrated an adequate
familiarity with legal proceedings, reported he represented himself
successfully on other cases, and confirmed he was prepared to continue
with trial. See id.

CONCLUSION

¶30 We have reviewed the entire record for reversible error and
found none; therefore, we affirm the convictions and sentences.

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¶31 After the filing of this decision, defense counsel’s obligation
pertaining to Irvin’s representation in this appeal will end. Defense counsel
need do no more than inform Irvin 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. State v.
Shattuck, 140 Ariz. 582, 584-85 (1984). On the Court’s own motion, Irvin has
30 days from the date of this decision to proceed, if he wishes, with a pro per
motion for reconsideration. Further, Irvin has 30 days from the date of this
decision to proceed, if he wishes, with a pro per petition for review.

AMY M. WOOD • Clerk of the Court
FILED: AA

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