State v. Torrance

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES DALLES TORRANCE, Appellant.

No. 1 CA-CR 19-0167
FILED 6-11-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-000559-002
The Honorable George H. Foster, Jr., Judge (Retired)

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant

STATE v. TORRANCE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Charles Dalles Torrance appeals his conviction and sentence
for attempted second-degree murder. For reasons that follow, we affirm
Torrance’s conviction but vacate his sentence and remand for resentencing.

FACTS1 AND PROCEDURAL HISTORY

¶2 On July 18, 2016, Torrance shot K.D. several times at close
range in a parking lot. Surveillance video recorded the incident, capturing
a clear picture of Torrance’s face. After police arrested Torrance, he
identified himself in the video and said he knew K.D., but he denied
shooting her.

¶3 After a six-day trial, the jury convicted Torrance of attempted
second-degree murder as charged. The trial court sentenced Torrance to
the maximum aggravated term of 21 years’ imprisonment. We have
jurisdiction over Torrance’s appeal pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

ANALYSIS

I. Alleged Constitutional Speedy Trial Violation

¶4 Torrance first argues the trial court violated his constitutional
right to a speedy trial by granting his defense counsel’s repeated motions
to continue trial over his personal objections. We review constitutional
issues de novo. State v. Davolt, 207 Ariz. 191, 202, ¶ 21 (2004).

¶5 A defendant has a constitutional right to a speedy trial. U.S.
Const. amend. VI; Ariz. Const. art. 2, § 24. We consider four factors to

1 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Torrance. See State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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determine whether a constitutional speedy trial violation occurred: (1)
length of delay; (2) reason for the delay; (3) whether the defendant
demanded a speedy trial; and (4) whether the defendant suffered prejudice
from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); see State v. Burkett, 179 Ariz. 109, 114 (App. 1993) (holding that the Barker factors apply equally
to a speedy trial claim under the Arizona Constitution). “We regard none
of the four factors identified above as either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial.” Barker,
407 U.S. at 533. As post-accusation delay “approaches one year,” the delay
becomes “presumptively prejudicial” and requires further analysis of the
four Barker factors. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992); see
also State v. Medina, 190 Ariz. 418, 420-21 (App. 1997) (stating that a
defendant’s right to a speedy trial attaches when the accused is charged by
indictment or held to answer following a complaint). Length of delay is the
least important factor to consider, and prejudice to the defendant is the
most significant. State v. Spreitz, 190 Ariz. 129, 139-40 (1997). Constitutional
speedy trial protections apply only to delay the State causes, not delay that
“is attributable to the defendant.” Barker, 407 U.S. at 529; see Vermont v.
Brillon, 556 U.S. 81, 90-91 (2009).

¶6 The grand jury indicted Torrance on August 18, 2016. Trial
was later scheduled for December 15, 2016. Torrance’s counsel moved to
continue the trial because he was “in trial through 1/18/17” with another
trial to follow. The trial court granted the motion over Torrance’s personal
objection. After that, Torrance’s counsel moved to continue trial several
more times, citing scheduling conflicts with trials in older cases, the need
for a ballistics expert to prepare a report, and the need to interview a
potentially exculpatory witness. Torrance personally objected to his
counsel’s motions, all of which the court granted. Trial ultimately began on
July 6, 2017.

¶7 Under the first Barker factor, the eleven-month delay between
indictment and trial here is sufficient to trigger full analysis of the Barker
factors. Doggett, 505 U.S. at 652 n.1; State v. Miller, 234 Ariz. 31, 36-37, ¶ 8
(2013); see State v. Soto, 117 Ariz. 345, 348 (1977) (finding a nine-month delay
sufficient to conduct the full Barker analysis). The second Barker factor
requires us to examine the reasons for the delay. Torrance concedes his
counsel’s requests for continuances caused the delay, and he does not
argue, nor does the record support, that the State was responsible for any
continuance. He contends this factor should not count against him,
however, because he personally objected. But as a represented party,
Torrance was bound by his counsel’s requests. State v. Zuck, 134 Ariz. 509,
515 (1982) (holding delays sought by defense counsel bind the defendant

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and constitute a waiver of the speedy trial right even without the
defendant’s consent).

¶8 Torrance cites McCoy v. Louisiana, 138 S. Ct. 1500 (2018), to
argue that the delay from his counsel’s actions should not be attributed to
him. In McCoy, the trial court permitted defense counsel, in an effort to
avoid the death penalty, to admit the defendant’s guilt to a jury despite the
defendant’s strenuous objections. Id. at 1506-07. The Supreme Court held
conceding guilt for a defendant who maintained his innocence violated the
Sixth Amendment and constituted structural error. Id. at 1511. The Court
stated that under the Sixth Amendment, “it is the defendant’s prerogative,
not counsel’s, to decide on the objective of his defense.” Id. at 1505. The
Court further held issues of “trial management [are] the lawyer’s province,”
although other more significant decisions are reserved for the defendant:
“whether to plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal.” Id. at 1508. Here, continuances for defense
counsel to prepare for trial and pursue beneficial evidence are plainly “trial
management” matters and “strategic choices about how best to achieve
[Torrance’s] objectives” within a “lawyer’s province.” Id. (emphasis
omitted). Consequently, we attribute the delay to Torrance and weigh this
factor against him.

¶9 Examining the third Barker factor, defense counsel’s motions
to continue waived Torrance’s right despite his personal demand for a
speedy trial. See Zuck, 134 Ariz. at 515. And the reasons defense counsel
requested more time—to prepare for trial effectively and to strengthen
Torrance’s defense—reinforce this conclusion. See State v. Henry, 176 Ariz.
569, 579 (1993) (finding no constitutional violation when the defendant’s
“vigorous defense” caused delays “of his own making” despite his personal
opposition to continuances). We weigh this factor against Torrance.

¶10 The fourth and most important Barker factor is whether the
eleven-month delay prejudiced Torrance. See Spreitz, 190 Ariz. at 139-40.
“We assess prejudice in light of the interests that the speedy trial right
protects against: (1) ‘oppressive pretrial incarceration,’ (2) ‘anxiety and
concern of the accused,’ and (3) ‘the possibility that the defense will be
impaired’ by diminishing memories and loss of exculpatory evidence.”
State v. Parker, 231 Ariz. 391, 399, ¶ 16 (2013) (quoting Barker, 407 U.S. at
532). Delay that impairs the defense is the most serious type of prejudice
under this factor. Id.

¶11 Torrance contends he suffered prejudice from his
incarceration and anxiety while awaiting trial, but neither was unduly

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prejudicial under the circumstances here. See Spreitz, 190 Ariz. at 140
(finding five years’ incarceration did not violate defendant’s speedy trial
rights when it “may have increased defendant’s anxiety . . . [but] the delay
did not prejudice his ability to defend”); see also Henry, 176 Ariz. at 579
(“That these [trial] delays were largely of his own making overrides the fact
that he was incarcerated and assertedly felt increasing anxiety as trial drew
near.”). Moreover, Torrance does not explain how his general anxiety was
more prejudicial than the anxiety that is “inevitably present in every case
to some extent.” Barker, 407 U.S. at 537 (White, J., concurring).

¶12 Most significantly, Torrance does not assert, and the record
does not show, his ability to defend against the charges was adversely
impacted in any meaningful way. To the contrary, the delay was intended
to and likely did benefit Torrance’s defense, not harm it. See Henry, 176
Ariz. at 579. The fourth Barker factor, thus, also weighs against Torrance.
In sum, after balancing the four Barker factors, we find no constitutional
speedy trial violation.

II. Improper Consideration of Torrance’s Lack of Remorse

¶13 Torrance next argues the trial court erred by considering his
lack of remorse as an aggravating factor at sentencing. Generally, “[w]e
will not disturb a sentence that is within the statutory range absent an abuse
of the trial court’s discretion.” State v. Joyner, 215 Ariz. 134, 137, ¶ 5 (App.
2007). We review arguments raised for the first time on appeal for
fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12
(2018). Torrance contends we should review his claim for abuse of
discretion despite his failure to raise the issue to the trial court, citing State
v. Vermuele. See 226 Ariz. 399, 401-03, ¶¶ 6-12 (App. 2011) (concluding a
defendant does not forfeit ordinary appellate review by failing to object
during or after the imposition of sentence). On the other hand, the State
argues we should review for fundamental error because Torrance failed to
object, asserting Vermuele was incorrectly decided.

¶14 We need not decide the parties’ legal dispute concerning
standard of review on this record because Vermuele is distinguishable from
the facts here. The presentence report specifically listed Torrance’s “refusal
to take responsibility for his actions” as an aggravating factor, and the
State’s sentencing memorandum also asserted that Torrance had not “taken
responsibility for the crime or shown any remorse.” Therefore, unlike the
situation in Vermuele, Torrance had sufficient opportunity to raise this issue
to the trial court before sentencing. See id.

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¶15 In addition, following its pronouncement of sentence, the trial
court asked if either party had any issues about the case to discuss, and
neither party did. Without raising a challenge to the sentence, however,
Torrance’s counsel proceeded to address scheduling matters with the court
regarding Torrance’s “open case.” Thus, the record further shows that
Torrance had the opportunity to object after sentencing. Consequently, we
review for fundamental, prejudicial error. See State v. Trujillo, 227 Ariz. 314,
317, ¶ 9 (App. 2011) (reviewing the trial court’s consideration of lack of
remorse at sentencing for fundamental error when the defendant did not
raise the issue below).

¶16 “On fundamental error review, the defendant has the burden
of proving that the court erred, that the error was fundamental in nature,
and that he was prejudiced thereby.” State v. Meeds, 244 Ariz. 454, 460-61,
¶ 13 (App. 2018). The sentencing court commits fundamental error if it
imposes an aggravated sentence based in part on a prohibited aggravating
factor. Trujillo, 227 Ariz. at 318, ¶ 15. An appellant establishes prejudice by
showing the sentencing court reasonably might have imposed a lighter
sentence if it had not improperly considered the prohibited factor. Id. at
318-19, ¶¶ 16, 21. In other words, the record indicates the improper factor
might have influenced the sentencing decision. Id. The appellate court
should remand for a new sentencing hearing if “we cannot be certain that
[the sentencing court] would have imposed the same sentence absent that
factor.” State v. Munninger, 213 Ariz. 393, 396, ¶ 9 (App. 2006) (internal
quotation marks and citation omitted).

¶17 Here, the jury found three aggravating factors: the offense
was dangerous; it caused serious physical injury; and it caused physical,
emotional, or financial harm to the victim. After an evidentiary hearing, the
trial court later found Torrance had three prior felony convictions. At
sentencing, Torrance provided letters of family support and medical
records showing he had previously been diagnosed with bipolar disorder.
Torrance declined to address the court personally.

¶18 The trial court first considered Torrance’s proposed
mitigation evidence but made no findings for mitigating factors. The court
then addressed aggravating factors before pronouncing sentence:

The Court also sat through the trial in this matter. And that
evidence was rather extensive but simple. The crime was captured
on videotape, and the videotape showed, Mr. Torrance, that you
walked this young lady, this victim into a parking lot, and raised

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up a pistol and shot at her multiple times about five-to-ten feet
away from you.

There’s no explanation as to why you did this. The videotape showed
the victim, in an attempt to save herself, miraculously walked
from the back of that motel where this event took place, fell down
at least no less than five times, by my count. And one time fell
into what appeared to be face down into a puddle of water and
if the gunshots didn’t kill her, one would assume that she would
have drowned. Miraculously, she still got up, made her way to the
lobby, banged on the window. The attendant at the front desk
wouldn’t even open the door. I guess he didn’t know what he
was facing. And all told, no person should be put through that.
It’s a heinous crime and in the Court’s opinion. The aggravating
factors have been found by the jury.

The victim’s inability to speak because she was so traumatized by
this event is not unusual. And with all the matters that have been
presented to me, and I ask you if there’s anything you wanted to say, and
I don’t find anywhere in the record where you have any remorse for this
action. The result is very simple, Mr. Torrance. The Court finds,
based on everything that’s been presented to me, that you are a
danger to society. That you committed this crime. There’s no
question that you did it. You did it without feeling. You showed no
remorse since then. The victim has suffered tremendous emotional
and physical harm. The Court finds the appropriate sentence is to
the Department of Corrections for the aggravated term of 21 years.

(Emphasis added.)

¶19 A convicted defendant’s choice “not to publicly admit [his or
her] guilt . . . is irrelevant to a sentencing determination.” State v. Carriger, 143 Ariz. 142, 162 (1984). “If a defendant admits [his or her] guilt, this can
be used as additional mitigating evidence . . . .” Id. Similarly, if a defendant
offers evidence of remorse, the sentencing court can consider and comment
on its perception of the defendant’s remorse and whether it should consider
the same as a mitigating factor. See State v. Hardwick, 183 Ariz. 649, 656
(App. 1995). However, absent the defendant admitting guilt and raising
the issue of remorse, the trial court may not consider lack of remorse as an
aggravating factor, Trujillo, 227 Ariz. at 317-18, ¶¶ 11-15, because “[a]s
contrition or remorse necessarily imply guilt, it would be irrational or
disingenuous to expect or require one who maintains [his or her] innocence
to express contrition or remorse.” Hardwick, 183 Ariz. at 656.

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¶20 Here, Torrance maintained his innocence throughout trial
and after his conviction. In the presentence interview, he told a probation
officer he “did not commit this offense” but felt sympathy for the victim
and hoped the police would “find the person who actually committed the
crime.” He did not at any point ask the court to consider his remorse or
acceptance of responsibility as a mitigating factor. Nonetheless, in
identifying aggravating factors on the record, the court admonished
Torrance for his lack of remorse and failure to explain why he committed
the crime, including a comment voicing its concern with Torrance’s choice
not to speak at sentencing. See Trujillo, 227 Ariz. at 318, ¶¶ 14-15.

¶21 The State argues the trial court properly considered
“Torrance’s lack of remorse in the context of finding no mitigation,” but the
court did not mention remorse when it reviewed the proffered mitigation
evidence. The court only considered Torrance’s lack of remorse and
explanation when it discussed the aggravating factors, connecting the
factors throughout its commentary. Further, as noted above, the court
could not consider lack of remorse as rebuttal evidence because Torrance
never claimed he was remorseful. Cf. State v. Molina, 211 Ariz. 130, 138,
¶¶ 30-31 (App. 2005) (finding no error in the trial court’s consideration of
defendant’s lack of remorse to counter his claim he was “sorry for the
[victim’s] injuries” and took responsibility after he told the presentence
interviewer he was the victim because he was not guilty); State v. McDonald, 156 Ariz. 260, 263 (App. 1987) (finding that a trial court may consider a
defendant’s false testimony as an aggravator because it is distinct from
refusal to admit guilt).

¶22 The State cites State v. Jones, 197 Ariz. 290, 314, ¶ 79 (2000), to
support its argument that “a trial court may also consider lack of remorse
for purposes of determining whether the possibility of rehabilitation”
exists. But Jones does not stand for the proposition that a trial court may
consider lack of remorse for such purpose. Indeed, the issue of a
defendant’s remorse is never discussed in Jones for any purpose, sentencing
or otherwise. See id. at 309-14, ¶¶ 54-81. We thus conclude the court
fundamentally erred.

¶23 Having established fundamental error, Torrance bears an
additional burden to prove prejudice. Escalante, 245 Ariz. at 142, ¶ 21.
Torrance contends the trial court’s improper consideration of his lack of
remorse resulted in “room for a lesser sentence” than the statutory
maximum and a “reasonable sentencer, not considering the improper
aggravation, could have imposed a more favorable sentence.” Conversely,
the State argues the trial court’s emphasis on several unchallenged

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aggravators “shows it would have reached the same result, even without
considering Torrance’s lack of remorse” and thus Torrance fails to meet his
burden. See Munninger, 213 Ariz. at 397, ¶ 12 (explaining that no prejudice
results under fundamental error review when “it is clear that an aggravated
sentence would have been imposed even if the improper aggravator had
not been used”). An aggravated sentence may heighten the possibility of
prejudice to the defendant when the trial court weighs improper
aggravating factors, particularly if the aggravated sentence range is broad
and the court imposes a sentence at or near the maximum term. Cf. State v.
Ramsey, 211 Ariz. 529, 543, ¶ 45 n.7 (App. 2005) (finding no prejudice in trial
court’s consideration of improper factors where court imposed the
presumptive sentence).

¶24 Here, the trial court sentenced Torrance to the maximum
potential sentence for a first-time dangerous offender convicted of a Class
2 felony. See A.R.S. § 13-704(A) (setting the sentencing range from a
minimum term of 7 years to a maximum term of 21 years with a
presumptive term of 10.5 years). The court’s remarks indicate that the harm
Torrance caused the victim and the “heinous nature” of the crime were
significant factors in its sentencing decision. The court’s comments also
demonstrate, however, that it heavily weighed Torrance’s lack of remorse
and explanation against him. Our review of the record indicates these
references amounted to more than “mere passing comments.” See Trujillo,
227 Ariz. at 319, ¶ 20 (“[T]he court made it quite obvious it was very
concerned about [the defendant’s failure to admit responsibility and lack of
remorse] . . . .”). The court here explicitly referenced Torrance’s lack of
remorse and explanation during its brief recitation of aggravating factors,
stressing lack of remorse in its next-to-last comment before it imposed the
maximum sentence prescribed. From this context, the record plainly
reveals that Torrance’s lack of remorse and explanation likely influenced
the court’s sentencing decision. Id. at ¶¶ 19-21. This emphasis on improper
aggravating factors, combined with the broad sentencing range, leave us
unable to determine the trial court would have imposed the same sentence
of 21 years had the court weighed only permissible aggravating factors.

¶25 We, therefore, determine a reasonable likelihood exists the
court might impose a more favorable sentence without considering those
improper factors, and Torrance satisfied his burden to establish prejudice.
Id.; see also State v. Pena, 209 Ariz. 503, 509, ¶ 23 (App. 2005) (“The reversal
of a single aggravating factor may mean that the ‘sentencing calculus . . .
has changed.’” (quoting State v. Lehr, 205 Ariz. 107, 109, ¶ 8 (2003))).
Accordingly, we remand the matter for resentencing in a manner consistent
with this decision, emphasizing that nothing precludes the court from

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imposing the same sentence after “conscientiously balancing the factors
[the court] may properly consider.” See State v. Kerekes, 138 Ariz. 235, 238
(App. 1983).

CONCLUSION

¶26 We affirm Torrance’s conviction but vacate his sentence and
remand for resentencing.

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

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