State v. Shirley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEFFREY ROBERT SHIRLEY, Appellant.

No. 1 CA-CR 17-0352
FILED 6-28-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-001822-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Barbara L. Hull, Attorney at Law, Phoenix
By Barbara L. Hull
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.

STATE v. SHIRLEY
Decision of the Court

M O R S E, Judge:

¶1 Jeffrey Robert Shirley ("Shirley") appeals his convictions and
sentences. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On April 12, 2016, the State indicted Shirley for six counts of
criminal damage resulting in an imminent safety hazard to any person
(counts 1 through 6); production of marijuana (count 7); possession or use
of marijuana (count 8); five counts of obtaining a utility service fraudulently
(counts 9 through 13); and possession of drug paraphernalia (count 14).

¶3 Shirley represented himself at trial, with the assistance of
advisory counsel. At the final trial management conference, Shirley agreed
to wear a leg brace to keep him from "wandering around" the courtroom
and agreed that his advisory counsel would assist him with any tasks
requiring him to move in order to keep the leg restraints concealed. When
asked whether he had concerns about the procedures outlined for trial,
Shirley stated, "No, not really. I just want to play it by ear." Shirley did not
raise any objection to the restraints during trial.

¶4 During trial, Shirley pled guilty to counts 8 and 14. The jury
found him guilty of counts 3, 4, 5, and 7, and acquitted him of the remaining
counts. At sentencing, the trial court dismissed Shirley's conviction on
count 8 because it was duplicative of count 7. The court sentenced Shirley
to concurrent terms of four months in the Maricopa County jail on counts
3, 4, and 5, and concurrent terms of one year in the Department of
Corrections on counts 7 and 14.

¶5 We have jurisdiction over Shirley's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶6 The sole issue that Shirley argues on appeal is whether the
requirement that he wear a leg brace during trial deprived him of a fair trial.
"Matters of courtroom security are left to the discretion of the trial court."
State v. Davolt, 207 Ariz. 191, 211, ¶ 84 (2004). "We will uphold a trial court's
decision concerning trial security measures when the decision is supported
by the record." Id. Courts may not "'place defendants in shackles or other
physical restraints visible to the jury' during a trial absent a case specific

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STATE v. SHIRLEY
Decision of the Court

finding of a security concern." State v. Dixon, 226 Ariz. 545, 551, ¶ 22 (2011)
(quoting Deck v. Missouri, 544 U.S. 622, 633 (2005)) (emphasis in original).

¶7 Shirley did not object to the use of restraints during trial.
When a party fails to object to an alleged error, the Court will review only
for fundamental error. See Dixon, 226 Ariz. at 551, ¶ 24 (reviewing stun-belt
issue for fundamental error because the appellant failed to object in the trial
court). Under fundamental error review, Shirley must prove: (1) error
occurred, (2) the error was fundamental, and (3) the error caused him
prejudice. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 22-24, 26 (2005).

¶8 Relying solely on United States v. Sanchez-Gomez, 859 F.3d 649,
666 (9th Cir. 2017), vacated and remanded by United States v. Sanchez-Gomez,
138 S. Ct. 1532 (2018), Shirley argues that the superior court's failure to
evaluate specific security needs before allowing restraints constituted
reversible error. However, Sanchez-Gomez only addressed the propriety of
pretrial shackling and did not address or alter the standards for shackling
at trial or the need to find prejudice from shackling to "justify reversal of a
conviction in a direct appeal." 859 F.3d at 656. Moreover, the Supreme
Court vacated the Ninth Circuit's decision in Sanchez-Gomez, so we may
turn to the well-established criteria for evaluating Shirley's claim.

¶9 While Arizona precedent requires courts to make case-
specific determinations about security concerns before authorizing visible
restraints, no basis for reversal exists absent a showing that the jury was
aware of the use of restraints. See Dixon, 226 Ariz. at 552, ¶ 27 ("The central
issue here is thus whether the restraints were visible."). Because Shirley did
not object to the leg brace below, under fundamental error review he must
show that it was visible to the jury. Id. at ¶ 30. Leg braces are typically
worn under the defendant's clothes, and there is no evidence here that the
jury either saw the leg brace or inferred that Shirley wore one. See id. at ¶¶
28-29 (finding no due process violation where defendant did not
demonstrate that the leg brace was visible to the jury). Shirley did not object
to the leg brace, and expressly conceded that the leg brace would be "no
problem." When Shirley testified, the court ensured that the jury was not
present when he entered and exited the witness stand. Though Shirley
contrasts his limited movements with the movements of prosecutors and
witnesses during trial, he does not assert that these contrasts indicated to
the jury that he was wearing restraints. Under these circumstances, we find
no fundamental error.

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STATE v. SHIRLEY
Decision of the Court

CONCLUSION

¶10 For the foregoing reasons, we affirm Shirley's convictions and
sentences.

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

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