Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2005-006706-001 DT The Honorable Glenn M. Davis, Judge and The Honorable Christopher Whitten, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section And Linley Wilson, Assistant Attorney General Attorneys for Appellee
Law Offices of Ronald M. DeBrigida, Jr. Glendale By Ronald M. DeBrigida, Jr. Attorneys for Appellant
Delanie Belfield Ross Buckeye Appellant
PATRICIA A. OROZCO, Presiding Judge
¶1 Delanie Belfield Ross (Appellant) appeals his convictions and sentences on three counts of fraudulent schemes and artifices and one count of theft, each a class two felony. For the reasons that follow, we affirm Appellant's convictions and sentences; however, we vacate the trial court's February 12, 2010 order, modifying Appellant's award of presentence incarceration credit, and we reinstate the July 17, 2009 order, awarding Appellant 1626 days of presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶2In 2003, Appellant learned that his brother-in-law, Willard Cooper, Jr. (Cooper), had a high credit score. Appellant told Cooper that he "could get [Cooper] a million dollars' worth of property and like a hundred thousand dollars in cash" based on the credit score. Cooper subsequently moved from Mississippi to Arizona to live with Appellant and Appellant's wife, Veronica.
¶3 Appellant formed TempleBloc, Inc. (TempleBloc) under Cooper's name in March 2004, listed Cooper as president, completed the Articles of Incorporation for TempleBloc, and designated a board of directors consisting of Cooper, Veronica, and Appellant. Veronica applied for a corporate bank account under the name UPSW Dispatching Services (UPSW) and later amended her application to say that UPSW did domestic and international consulting and was owned by TempleBloc. She also added Cooper as a co-signer to the account.
¶4In 2004, M. Brooks prepared a 2002 corporate tax return for UPSW and a 2003 corporate tax return for TempleBloc based on information provided to him by Appellant, who identified himself by his nickname, Lane Quue. Brooks had no experience preparing corporate tax returns and failed to obtain annual reports, profit and loss statements, or other financial records for the companies. The tax returns listed assets in the amounts of $1, 546, 660 and $1, 031, 610 for UPSW and TempleBloc, respectively. However, TempleBloc conducted no form of legitimate business. Cooper testified that he signed the tax returns because he signed anything that Appellant asked him to sign.
¶5In 2004, Appellant leased four Hummers from Kachina Cadillac (Kachina) for himself, Veronica, Cooper, and Appellant's friend. Appellant, who identified himself as Mr. Quue, negotiated the leases with T. Heiner, one of Kachina's salesmen. Appellant informed Heiner that he ran a very profitable business, was going to put the vehicles in TempleBloc's name, and was acting at the direction of Cooper. Kachina sent Cooper's credit application and TempleBloc's tax return to its credit agency, GMAC Financial Services (GMAC).
¶6 After GMAC approved the leases, Cooper signed the paperwork. He testified that Appellant told him not to talk to anyone at Kachina, to sign the documents, to write a check for $80, 000 even though the money was not in the account at the time, and to leave as quickly as possible. Kachina subsequently provided the four Hummers to TempleBloc.
¶7In June 2004, M. Lima of Luxury Home Investments, LLC (Luxury Home) was in negotiations to buy a home valued at approximately $4.2 million in Paradise Valley, Arizona (Quartz Mountain Property). Lima met Appellant, who identified himself as Lane Quue, around this same time. Although Appellant informed Lima that he was "the right-hand man" for Cooper and that he wanted to purchase properties on Cooper's behalf, Lima never met Cooper.
¶8Luxury Home entered into a contract to purchase the Quartz Mountain Property for $2 million and the current owners' personal property for an additional $320, 000. After securing the contract, Lima and Appellant negotiated a contract in which Luxury Home would sell the Quartz Mountain Property to TempleBloc for approximately $4.2 million.
¶9 After Appellant informed Lima that he was having trouble securing conventional financing for the purchase of the Quartz Mountain Property, Lima referred Appellant to J. Janssen of A&A Funding Corporation (A&A Funding). Because A&A Funding did not have the funds necessary for the Quartz Mountain Property loan, Janssen referred the deal to J. Kaplan of Mortgages, Ltd. and asked Mortgages, Ltd. to assist in funding the acquisition of the Quartz Mountain Property. Lima and Janssen gave Mortgages, Ltd. some of the paperwork it needed to complete the loan, including TempleBloc's tax return.
¶10 Mortgages, Ltd. provided TempleBloc with a $2.2 million loan to purchase the Quartz Mountain Property. Kaplan testified that he believed Appellant was Cooper, but Cooper was not involved in the acquisition of the Quartz Mountain Property and when Cooper discovered that Appellant was trying to purchase the house, he "objected to it from the start." However, after Appellant told him that everything was alright, Cooper "went on [Appellant's] word" and signed the closing documents.
¶11 Luxury Home and Appellant negotiated a reduced purchase price of approximately $3.2 million for the Quartz Mountain Property in August 2004. Because TempleBloc still needed $1 million to purchase the Quartz Mountain Property, Lima contacted a private investor, Dr. R. Greenberg, to assist in securing the necessary financing. Dr. Greenberg's company, Quantum Consulting, LLC (Quantum), provided the loan for the additional $1 million.
¶12 As a result of some confusion over whether certain items of personal property were going to remain in the Quartz Mountain Property after the sale, Luxury Home gave TempleBloc a price concession. Rather than give money to TempleBloc, Luxury Home used approximately $430, 000 of the price concession funds to repay a portion of Quantum's loan. While completing the price concession agreement, Lima witnessed Appellant sign Cooper's name, which concerned Lima because this was the first time he had witnessed Appellant sign anything. Because of the price concession, TempleBloc and Cooper owed Quantum $600, 000, and a promissory note for this amount was recorded and was secured by the Quartz Mountain Property.
¶13 After TempleBloc secured financing, there was a simultaneous close of escrow with Luxury Home purchasing the Quartz Mountain Property from the owners for $2 million and simultaneously selling it to TempleBloc for $3.2 million. Because the parties used a nominee agreement, the deed indicated the buyer was TempleBloc and the sellers were the original owners. After the closing, Appellant and Veronica lived in the Quartz Mountain Property, but Cooper continued to reside at their previous address.
¶14 After purchasing the Quartz Mountain Property, Appellant told Cooper that he was going to release the liens because he wanted to be able to refinance. Appellant used the Internet to learn how to release liens on real property and told Cooper that by doing that, the house becomes "yours outright."
¶15 Appellant contacted A. Flagg-Thomas and asked her if she knew anyone who could notarize documents. She introduced Appellant to her friend S. Emudianughe. Emudianughe notarized two lien releases for Appellant: one in which Appellant signed as Daniel Moore in order to release the $2.2 million Mortgages, Ltd. lien, and the other in which Appellant signed as Dr. Greenberg in order to release Quantum's $600, 000 lien. Both lien releases stated that the debts had been fully paid.
¶16 After recording the lien releases, TempleBloc conveyed the Quartz Mountain Property to Horizon Consulting, Inc. (Horizon). TempleBloc registered for the trade name Horizon Consulting Grant Resource (HCGR) several weeks later.
¶17 Appellant subsequently obtained an $850, 000 line of credit from a private lender, J. Hancock, after Appellant told Hancock that he owned the Quartz Mountain Property "free and clear." Hancock believed that Appellant was Cooper and that Horizon was Appellant's company, and he agreed to provide draws against the line of credit to Appellant upon Appellant's request.
¶18 Before receiving any funds from Hancock, Cooper named himself president of Horizon at Appellant's request because Appellant told him that if Cooper was Horizon's president, it would enable them to deposit checks issued to Horizon in one of Veronica's bank accounts. Hancock provided an initial draw of $225, 000 to Appellant. Appellant then requested that Hancock give Quantum $250, 000 as payment of the $600, 000 loan.
¶19 Appellant later requested the remaining $375, 000 of the $850, 000 line of credit from Hancock. However, Appellant wanted the money quickly, and Hancock denied the request because Hancock was entitled to time to come up with the money under their agreement.
¶20 After learning that the Quartz Mountain Property liens had been fraudulently released, Mortgages, Ltd. filed an affidavit of erroneous recording with the recorder's office and initiated foreclosure proceedings in December 2004.
¶21 In February 2005, the State charged Appellant, Veronica, and Cooper with two counts of fraudulent schemes and artifices, one count of theft, and one count of conspiracy, and the grand jury returned an indictment against them (First Indictment). However, the trial court subsequently determined that count one of the First Indictment was duplicitous and requested that the State amend the count.
¶22 The State resubmitted the case to a new grand jury, and the grand jury returned a new indictment (Second Indictment) against Appellant and Veronica in June 2006 under the same cause number as the First Indictment. In the Second Indictment, Appellant and Veronica were indicted with four counts of fraudulent schemes and artifices (count one through count four), one count of theft (count five), and one count of conspiracy (count six). After returning the Second Indictment, the State moved to dismiss the First Indictment, and the trial court granted the motion.
¶23 The trial court later remanded the case to a new grand jury for a redetermination of probable cause. The grand jury again indicted Appellant and Veronica (Third Indictment) in November 2006. In June 2008, the trial court determined that the Third Indictment was based on misinformation and decided again to remand the case to the grand jury. However, this court reversed the trial court's remand order after the State filed a special action petition.
¶24 Appellant's trial was held in November 2008. A jury convicted Appellant of three counts of fraudulent schemes and artifices and one count of theft. The trial court sentenced Appellant to concurrent sentences of 15.75 years on each count and ordered the sentences to be served consecutively to Appellant's sentence that he received for violating his probation on a prior conviction. The trial court initially awarded Appellant 1626 days of presentence incarceration credit but later reduced the award to 267 days.
¶25 Appellant timely appealed. 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 (2003), 13-4031 (2010), and -4033.A.1 (2010).
¶26 Defendant's counsel originally filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, he found no arguable question of law that was not frivolous. Defendant filed a supplemental brief raising various issues for review. Due to the complexity of the case and the number of issues raised, we asked the State to file a response to the numerous issues, which it did. After this court began reviewing the issues, we found a sentencing issue that was not raised by either Appellant's counsel or Appellant. We therefore vacated the Anders designation and ordered supplemental briefing on the sentencing issue. See State v. Thompson, 229 Ariz. 43, 46, ¶ 6, 270 P.3d 870, 873 (App. 2012). In spite of the redesignation, we address below the arguments raised by Appellant in his supplemental brief.
¶27 On appeal, Appellant raises several issues relating to the first two indictments. We discuss these issues in detail below.
A. Amendment of the First Indictment
¶28 First, Appellant contends that the First Indictment limited any future trial to the specific charge or charges stated in that indictment. He further asserts that under Arizona Rule of Criminal Procedure 13.5.b, the First Indictment could only be amended to correct mistakes of fact or to remedy formal or technical defects, unless he consented to the amendment. Appellant argues that the State violated Rule 13.5.b and his due process rights by altering the nature of the charges and original allegations made against him.
¶29 Based on the record, we find this argument to be without merit. Appellant is correct that Rule 13.5.b limits the amending of an indictment to corrections of "mistakes of fact or [remedies for] formal or technical defects." However, the State can modify an indictment to charge new and different matters with "the concurrence of the grand jury." State v. O'Haire, 149 Ariz. 518, 520, 720 P.2d 119, 121 (App. 1986). The State obtained the concurrence of the grand jury in this case when it resubmitted the case to a new grand jury, which returned the Second Indictment against Appellant. Accordingly, we find no violation of Rule 13.5.b and no violation of Appellant's due process rights.
B. Modification of the Entire Indictment
¶30 Appellant also asserts that the State arbitrarily decided to treat the entire First Indictment as a remand, rather than just amending the duplicitous count one. He contends that defects in indictments must be attacked by a Rule 16 motion and the State did not file one. Additionally, Appellant claims that the State violated the Arizona Rules of Criminal Procedure and his due process rights by treating the entire charging instrument as a remand and resubmitting the case to a new grand jury, adding new statutes, and altering the nature of the original allegations, without the court remanding or dismissing the First Indictment.
¶31 As previously discussed, the State can make substantive modifications to an indictment, but it may not do so without the concurrence of the grand jury. State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979). Additionally, we find no support for Appellant's argument that the State may only attack defects in an indictment by a Rule 16 motion. The case Appellant cites states that a Rule 16 motion to dismiss the prosecution would be a proper remedy in a situation in which the indictment is challenged as being insufficient. See State v. Superior Court ex rel. Pima Cnty., 121 Ariz. 341, 342, 590 P.2d 457, 458 (App. 1977). Nowhere in the case does it say that "[d]efects in [an] indictment must be attacked by way of Rule 16.6 motion[s], " as Appellant claims.
¶32 Contrary to Appellant's assertion, the State may return a superseding indictment "any time before trial, " in the event it needs to make substantive changes to the indictment. State v. Superior Court ex rel. Pima Cnty., 137 Ariz. 534, 536, 672 P.2d 199, 201 (App. 1983). Because the State did not merely amend the First Indictment to charge new and different matters, but rather returned a Second Indictment, we do not find that the State violated the Arizona Rules of Criminal Procedure or Appellant's due process rights.
C. Two Indictments Under the Same Cause Number
¶33 Appellant next contends that it is impossible for the First and Second Indictments to be valid at the same time. He asserts that only the First Indictment was valid because there cannot be two valid indictments at the same time under the same cause number; therefore, when the First Indictment was dismissed, only a void Second Indictment remained. Alternatively, Appellant asserts that the First and Second Indictments were a single charging instrument and both would have been dismissed when the First Indictment was dismissed by the State, which left no valid charging instrument to hold and try Appellant. Appellant believes that his due process rights were violated because the State submitted the case before a new grand jury and returned a Second Indictment under the same cause number without the trial court granting a remand or dismissal of the First Indictment.
¶34 As stated above, "[a] superseding indictment may be returned any time before trial, " and it replaces the prior indictment. Superior Court ex rel. Pima County, 137 Ariz. at 536, 672 P.2d at 201. While returning a second indictment under the same cause number as the first indictment is not a common practice, we do not find that this caused the superseding Second Indictment to be void because we fail to see how this resulted in any prejudice to Appellant. See, e.g., State v. Steward, 9 Or.App. 35, 39, 496 P.2d 40, 42-43 (1972) (stating that the fact that "the second indictment retained the same case number as the first cannot invalidate it" because the defect does not prejudice the substantial rights of the defendant); see also State v. Young, 149 Ariz. 580, 585, 720 P.2d 965, 970 (App. 1986) ("Absent prejudice, errors in a grand jury proceeding do not constitute reversible error when a conviction is appealed.").
¶35 The State returned the Second Indictment even though the trial court merely requested that it amend the duplicitous count one. However, Appellant did not object to the dismissal of the First Indictment. Further, the trial court found no bad faith in the State's decision to return the Second Indictment against Appellant, and it stated that the request to dismiss the First Indictment was supported by good cause. See Arizona Rule of Criminal Procedure 16.6.a ("The court, on motion of the prosecutor showing good cause therefor, may order that a prosecution be dismissed at any time upon finding that the purpose of the dismissal is not to avoid the provisions of Rule 8.").
¶36 Based on the fact that the State may return a superseding indictment at any time and the fact that a superseding indictment is not invalidated merely because it has the same cause number as the first indictment, we find that Appellant has failed to demonstrate how his due process rights have been violated or that the State's decision to obtain the Second Indictment prejudiced him. Further, Appellant has failed to explain how the First and Second Indictments affected the Third Indictment, on which Appellant was subsequently tried. Therefore, we find that the State did not violate Appellant's ...