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State v. Morgan

Court of Appeals of Arizona, First Division

March 6, 2014

STATE OF ARIZONA, Appellee,
v.
THOMAS GLENN MORGAN, Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Nos. CR2010-161928-001, CR2008-129836-001 The Honorable Christine E. Mulleneaux, Judge Pro Tempore

Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee.

Maricopa County Public Denfender's Office, Phoenix By Jeffrey L. Force Counsel for Appellant.

Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.

MEMORANDUM DECISION

WINTHROP, Judge

¶1 Thomas Glenn Morgan ("Appellant") appeals his conviction and sentence for one count of theft in Maricopa County Superior Court Cause No. CR2010-161928-001 ("the 2010 case"), as well as his sentence in Maricopa County Superior Court Cause No. CR2008-129836-001 ("the 2008 case"). Appellant argues that, in the 2010 case, the trial court (1) abused its discretion by denying his motion to represent himself at trial without holding a Faretta[1]hearing; (2) failed to fully credit him for presentence incarceration; and (3) erroneously ordered him to pay for DNA testing. For the reasons set forth below, we affirm Appellant's conviction in the 2010 case, affirm his presentence incarceration credit of 248 days in that case, modify his sentence in that case by vacating the order that he pay for DNA testing, and modify his sentence in the 2008 case to reflect 132 days of presentence incarceration credit.

FACTS AND PROCEDURAL HISTORY[2]

¶2 In October and November 2010, Appellant was employed as a runner by K.O., [3] a sole practitioner Phoenix attorney. Sometime around Halloween, K.O., who was out of town, instructed Appellant to pick up a check in the amount of $1330 from an individual in Chandler, Arizona, and deliver it to a client in Phoenix. The check represented the third and final payment in a collection case K.O. had resolved on the client's behalf, and was to be made out directly to the client. Instead, Appellant requested that the issuer make the check out to him (as "Thomas Morgan PC"), and he cashed the check that same day.

¶3 Later that day, Appellant telephoned K.O. and said, "Don't worry, everything is going to be all right." When K.O. asked what he meant, Appellant explained the check had been "lost, " but he would have it "reissued, " and "[n]obody is going to get in any trouble." After this cryptic conversation, K.O. never heard from Appellant again. When K.O. returned to Phoenix, she learned what had happened from the issuer of the check. She also confirmed her client had never received a check for the final payment and immediately covered the money due him from her own funds.

¶4 The State charged Appellant with one count of theft of a value of $1000 or more but less than $2000, a class 6 felony. A trial in absentia was held, and the jury found Appellant guilty as charged. At sentencing on March 27, 2013, Appellant stipulated he had six prior felony convictions. The trial court sentenced Appellant to the presumptive term of 3.75 years' incarceration in the Arizona Department of Corrections ("ADOC"), with credit for 248 days of presentence incarceration. Immediately after sentencing Appellant in the 2010 case, the trial court found Appellant in automatic violation of the conditions of his probation in the 2008 case, revoked his probation, and sentenced him to a consecutive, presumptive term of 2.5 years' incarceration in ADOC, with no credit for presentence incarceration.

¶5 We have jurisdiction over Appellant's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2014), [4] 13-4031, and 13-4033.

ANALYSIS

I. Denial of Motion to Represent Self


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