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State v. Finck

Court of Appeals of Arizona, Second Division

December 5, 2013

The State of Arizona, Appellee,
Michael Edward Finck, Appellant.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Pima County No. CR20103802002 The Honorable Jose Robles, Judge Pro Tempore

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee.

Harriette P. Levitt, Tucson Counsel for Appellant.

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.



¶1 After a jury trial, appellant Michael Finck was convicted of four counts of third-degree burglary and one count each of possession of burglary tools, criminal damage, and attempted theft by control. The trial court found Finck had two or more historical prior felony convictions, denied Finck's motion for a new trial, and sentenced him to enhanced, maximum, concurrent prison terms, the longest of which is twelve years. Finck appeals from his convictions and sentences and from the court's subsequent denial of his motion to vacate judgment.

¶2 Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), avowing she has reviewed the record and found no arguable issues to raise on appeal and asking this court to search the record for error. In compliance with State v. Clark, she has also provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." 196 Ariz. 530, ¶ 32, 2 P.3d at 97.

¶3 In a pro se, supplemental brief, Finck argues (1) the trial court erred or abused its discretion in denying his pretrial motions for discovery and in failing to obtain a valid waiver of his right to counsel before granting his motion for self-representation, in violation of Faretta v. California, 422 U.S. 806 (1975); (2) the prosecutor engaged in misconduct by failing to disclose exculpatory material, in violation of Brady v. Maryland, 373 U.S. 83 (1963), by violating other disclosure rules, and by making false statements to the court about evidence in the case; and (3) his court-appointed advisory counsel provided ineffective assistance, in violation "of his right to due process and of his other rights guaranteed by the Arizona and United States Constitutions." Because we could not say Finck's Faretta claim was "wholly frivolous, " Anders, 386 U.S. at 744, we asked counsel to file supplemental briefs addressing this claim. See Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (briefing on arguable issue required). For the following reasons, we vacate the court's criminal restition order but otherwise affirm Finck's convictions and sentences.


¶4 On the night of October 24, 2010, the general manager of Daniel's Moving & Storage reported a possible burglary after finding a huge hole in the wall that had separated Daniel's from a business that occupied an adjacent space in the warehouse. While waiting for police to arrive, the manager noticed an older model pickup truck drive by the front of the warehouse twice; the same vehicle was seen by Pima County Sheriff's Deputy B. Hill, who, along with his canine partner Randy, was first to arrive on the scene.

¶5 After other units had arrived, Hill and Randy searched the interior of the warehouse, and Randy alerted to an area containing stacks of large wooden crates in one of the adjacent businesses. Law enforcement personnel eventually discovered three men hiding in crates in the warehouse; Randall Gray was found in one crate, along with a flashlight and box-cutter, and Wesley Wallace and Finck were found in another, along with a flashlight and two pairs of gloves. A third flashlight, a handgun, and a tire iron were also photographed near the crates. All three men were charged with multiple counts. Finck's case was later severed for trial; Gray and Wallace were tried in September 2011, and Finck was tried separately in late February and early March 2012.

¶6 Finck represented himself at trial, assisted by advisory counsel Lawrence Rosenthal. Before resting its case, the state played excerpts of telephone calls Finck had made from the Pima County Jail shortly after his arrest. During the calls, Finck told his girlfriend that he had been with Gray and Wallace and that the police had "caught [him] red-handed."

¶7 After the state rested, Finck testified that he had gone to the warehouse to look at a couch Wallace had proposed to give him in lieu of money he owed Finck. He said he had been accompanied by his friend P.H., who had parked Finck's truck and sometime later had left the scene. Finck said he had entered the warehouse, believing Gray was employed there, and was looking at the couch when Gray said the police were there, and Wallace began brandishing a handgun. He said he had then gone with Wallace and Gray to one of the other businesses in the warehouse complex, where he hid in a crate with Wallace until discovered by police. Finck also admitted having five prior felony convictions.


¶8 In his supplemental pro se brief, Finck raises claims of errors committed by the trial court, misconduct by the prosecutor, and ineffective assistance from his advisory counsel. We address these claims in the context of their subject matter.

Self- Representation

¶9 Finck argues he "was deprived of his right to counsel . . . because the trial court (1) did not conduct a hearing required by Faretta v. California, 422 U.S. 806 . . . (1975) and Rule 6.1(c) of the Arizona Rules of Criminal Procedure; (2) the trial court's Faretta and Rule 6.1(c) colloquy was inadequate; and (3) the trial court did did not secure a valid waiver of counsel from [him]." He contends his "waiver of his right to counsel was not valid" because the court failed to advise him of (1) the nature of the charges against him; (2) the possible penalties he faced, ...

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