FILED BY CLERK IN THE COURT OF APPEALS AUG 31 2009 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2008-0339 Appellee, ) DEPARTMENT B ) v. ) OPINION ) JEREMIAH MARCE FORTE, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20071281
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson Tucson Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender By Kristine Maish Tucson Attorneys for Appellant
E C K E R S T R O M, Presiding Judge. ¶1 After appellant Jeremiah Forte pled guilty to aggravated assault with a deadly
weapon or dangerous instrument, the trial court suspended the imposition of sentence and
placed him on a five-year term of intensive probation. Forte later violated the terms of his
probation and, at a disposition hearing at which Forte appeared only via an interactive
audiovisual system, the court sentenced him to a mitigated term of 2.5 years’ imprisonment.
On appeal, Forte argues the court violated his rights to counsel and to be present at
sentencing by conducting the hearing without Forte physically present in the courtroom with
his attorney. Notwithstanding the procedural irregularities in this case, we affirm Forte’s
sentence for the reasons set forth below.
Factual and Procedural Background
¶2 On May 12, 2008, the state filed a petition to revoke Forte’s probation on the
grounds he had failed to report to the probation department as ordered and had failed to
reside at an approved address, leaving his whereabouts unknown. Forte later appeared in
custody at a probation revocation hearing on August 11, 2008, and the trial court found he
had violated the terms of his probation as alleged by the state.
¶3 The first of three disposition hearings was held on September 5, 2008. Forte
was not present at that hearing because he had not been “transported.” The trial court reset
the hearing for September 8, 2008, and ordered Forte to be transported to it. The next
hearing took place a day later than originally scheduled, on September 9, 2008, although the
record does not establish why the date was changed. The minute entry from this second
disposition hearing reflects Forte was not present because he had “refused transport.” After
2 Forte’s attorney moved for a continuance, the court ordered the disposition hearing reset to
September 10, 2008. The court further ordered, “the Defendant must appear in person and
is not allowed to refuse transport.”
¶4 Forte was not physically present in the courtroom with his attorney during the
September 10th hearing but he was present via “Video Court” from jail, meaning he could
hear the proceedings and communicate with the judge through audiovisual devices. As the
judge explained the situation to Forte, “[Your attorney] is here, you can’t see him, but you’ll
be able to hear him.” No attorney for the state appeared at the hearing, and the judge made
no findings as to whether Forte had waived any right to be physically present in the
courtroom. Nor did the judge set forth on the record why it decided to conduct the
sentencing with Forte appearing via video. Instead, at the commencement of the proceeding,
the judge asked Forte how he was doing and remarked, “I’m glad that you decided to
cooperate because I didn’t want [the jail officials] to have to hurt you or anything trying to
get you over to the camera.” Subsequent communication between defense counsel and Forte
was audible in open court and transcribed on the record.
¶5 After allowing counsel and Forte to address the court, the judge revoked
Forte’s probation and sentenced him to a mitigated prison term of 2.5 years, giving him credit
for 530 days’ served. This appeal followed.
Discussion
¶6 Forte now contends that his remote attendance at the disposition hearing ran
afoul of the requirements of the Arizona Rules of Criminal Procedure and that his physical
3 absence from the courtroom and inability to communicate confidentially with his attorney
violated both his state and federal constitutional rights. Because he raised no objection to
the proceeding below, to be entitled to appellate relief Forte must demonstrate that the
alleged error was both fundamental and prejudicial, see State v. Henderson, 210 Ariz. 561,
¶¶ 19-20, 115 P.3d 601, 607-08 (2005), or that the alleged error was structural, in which case
prejudice is presumed. See State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36
(2009). We first address whether the trial court erred when it conducted Forte’s sentencing
notwithstanding his physical absence from the courtroom.
Physical Presence at Sentencing
¶7 A criminal defendant has the right to be physically present at every critical
stage of a trial, United States v. Gagnon, 470 U.S. 522, 525-26 (1985); State v. Dann, 205
Ariz. 557, ¶ 53, 74 P.3d 231, 245-46 (2003), including a sentencing hearing following the
revocation of probation. State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978); State
v. Stone, 111 Ariz. 62, 64, 523 P.2d 493, 495 (1974). This right is grounded in the Sixth and
Fourteenth Amendments of the United States Constitution, Gagnon, 470 U.S. at 526; Illinois
v. Allen, 397 U.S. 337, 338 (1970); United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir.
1994), as well as article II, § 24 of the Arizona Constitution. State v. Garcia-Contreras, 191
Ariz. 144, ¶ 8, 953 P.2d 536, 538 (1998). A defendant’s physical attendance at sentencing
is also required by Rule 26.9, Ariz. R. Crim. P., which states that “[t]he defendant . . . shall
be present at sentencing.” Although the rules of criminal procedure expressly allow
defendants to appear at certain hearings by way of interactive audiovisual devices, they do
4 not permit such virtual presence at a sentencing hearing for a felony offense. Ariz. R. Crim.
P. 1.6(a), (c)(3).
¶8 The state concedes the rules of criminal procedure generally require defendants
to be in court physically when they are sentenced for felony crimes. Nevertheless, the state
argues “the record strongly suggests . . . [Forte] refused to attend in person” and, as a result
of defying the judge’s orders, he forfeited his right to be present.
¶9 A defendant may indeed forfeit his right to attend judicial proceedings if, after
being warned by the court, he continues to behave in such a “disorderly, disruptive, and
disrespectful” way that a proceeding cannot take place with the defendant present. Allen, 397
U.S. at 343. Our supreme court has held that extraordinary circumstances—and only
extraordinary circumstances—justify a departure from Rule 26.9 and permit sentencing a
defendant in absentia. State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). However,
we indulge every presumption against the forfeiture of a defendant’s constitutional right to
be present, Allen, 397 U.S. at 343; Garcia-Contreras, 191 Ariz. 144, ¶ 14, 953 P.2d at 540,
and this presumption does not permit the inference invited by the state on the record before
us.
¶10 Admittedly, Forte was not an exemplary inmate. As the state points out, his
presentence report describes him as engaging in “bizarre and hostile behavior toward the
Court during his initial appearance.” Yet disruptive behavior only justifies physically
excluding a defendant until he signals he is willing to cooperate with the judicial process.
See Allen, 397 U.S. at 343 (“Once lost, the right to be present can . . . be reclaimed as soon
5 as the defendant is willing to conduct himself consistently with the decorum and respect
inherent in the concept of courts and judicial proceedings.”). Even though Forte was
disruptive at his initial appearance, his physical presence and behavior at the later violation
hearing indicated he was willing to cooperate with the process. Thus, because he had
demonstrated good behavior at an intervening hearing, his disruptive behavior at an earlier
hearing was not, standing alone, a sufficient ground for excluding Forte from the disposition
hearing.
¶11 The sentencing judge also ordered Forte to appear at the disposition hearing
held September 10, 2008. His absence from court on that date, together with the minute
entry showing he had “refused transport” to the second disposition hearing, suggests Forte
might have intentionally defied the court in an attempt to obstruct the proceedings. We
cannot conclude, however, that the mere refusal of transportation by a defendant in custody,
in the absence of any further record, is an “extraordinary circumstance[]” justifying a
departure from the procedure required by Rule 26.9. Fettis, 136 Ariz. at 59, 664 P.2d at 209.
The trial court had the means and authority to compel Forte’s appearance regardless of
whether Forte chose to appear. Cf. State v. Henry, 189 Ariz. 542, 550, 944 P.2d 57, 65
(1997) (court has discretion to utilize measures necessary for orderly sentencing). Even a
defendant’s decision to willfully avoid a sentencing hearing by becoming a fugitive has not
been regarded as an extraordinary circumstance sufficient to justify conducting a sentencing
in absentia. State v. Zavala, 136 Ariz. 356, 358 n.1, 666 P.2d 456, 458 n.1 (1983); Fettis,
136 Ariz. at 59, 664 P.2d at 209. We therefore conclude that Forte’s unexplained refusal to
6 attend, standing alone, is not an extraordinary circumstance justifying a deviation from the
normal procedural and presence requirements of Rule 26.9.
¶12 Furthermore, we cannot conclude Forte voluntarily waived his right to be
physically present at the sentencing. As a matter of constitutional law, a defendant may
generally give up his right to be present in court by consent. Allen, 397 U.S. at 342-43;
Garcia-Contreras, 191 Ariz. 144, ¶ 9, 953 P.2d at 539. Under Arizona’s rules of criminal
procedure, however, it is unclear whether a defendant may elect to attend a sentencing
hearing through interactive media or if, instead, a defendant’s physical presence in court is
compelled by Rule 26.9. Compare 196 Ariz. XLI (2000) (establishing Rule 1.6, whereby
defendants may appear through video conferencing equipment when appearance required in
court, but creating exception for felony sentencing), with State v. Adler, 189 Ariz. 280, 283,
284-85, 942 P.2d 439, 442, 443-44 (1997) (acknowledging rule that defendant must be
present at sentencing but observing “sentencing with counsel present and the defendant
present by telephone with consent is entirely different” than sentencing in absentia and is
permissible procedure), and State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App.
1982) (notwithstanding former Rule 26.9’s requirement that defendant be present at
sentencing, “the right to be present at the pronouncement of sentence may be waived, if the
waiver is knowing”).1
1 In 1993, Rule 26.9, Ariz. R. Crim. P., was amended, deleting language that provided “failure of the defendant to appear for sentencing shall not delay the pronouncement and entry of judgment and sentence.” 174 Ariz. LXXXVI (1993).
7 ¶13 Assuming arguendo Forte could have waived his physical presence at
sentencing and appeared via audiovisual equipment, the trial court still would have been
required to “determine that the defendant knowingly, intelligently and voluntarily agree[d]
to appear at the proceeding by an interactive audiovisual device.” Ariz. R. Crim. P. 1.6(b)(2).
Because the record demonstrates neither extraordinary circumstances necessitating a
deviation from the requirements of Rule 26.9, see State v. LeMaster, 137 Ariz. 159, 168, 669
P.2d 592, 601 (App. 1983), supp. op., nor the defendant’s personal waiver of the right to
physical presence at sentencing, we conclude the trial court sentenced Forte in violation of
the requirements of the Arizona Rules of Criminal Procedure and the United States
Constitution.2 See Townsend, 33 F.3d at 1231 (“[T]he Sixth Amendment . . . requires that
a defendant be physically present at sentencing.”).
¶14 Although we have found the trial court erred, Forte did not object when the
court conducted his sentence through the audiovisual feed. He is therefore not entitled to
relief in the absence of a showing either that the error was fundamental and prejudicial, see
Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607-08, or, as Forte contends, structural and
therefore prejudicial per se. Structural error is that “which affects the basic ‘framework
within which the trial proceeds’” and which so undermines the proceedings that the trial
“‘cannot reliably serve its function as a vehicle for determination of guilt or innocence.’”
2 Because the disposition hearing violated Forte’s federal constitutional rights, we need not separately decide whether it also violated his rights under the Arizona Constitution.
8 Garcia-Contreras, 191 Ariz. 144, ¶ 15, 953 P.2d at 540, quoting Arizona v. Fulminante, 499
U.S. 279, 310 (1991).
¶15 Our supreme court has made clear that not all species of “presence error” are
necessarily structural. See Garcia-Contreras, 191 Ariz. 144, ¶ 16, 953 P.2d at 540.
“[B]efore a court can classify a ‘presence error,’ the character of the proceeding from which
the defendant was excluded must be evaluated to ascertain the impact of the constitutional
violation on the overall structure of the criminal proceeding.” Id., quoting Hegler v. Borg,
50 F.3d 1472, 1477 (9th Cir. 1995).
¶16 We must therefore assess whether the conduct of Forte’s sentencing so insulted
the basic framework of a criminal sentencing such that the proceeding could no longer serve
its core function. Pointing to the purposes of Rule 26.9, the state argues that the failure to
sentence a defendant in person is not structural error when, as here, the defendant fully
participated in the sentencing hearing through the use of audiovisual equipment. We agree.
¶17 Rule 26.9, the provision that sets forth Forte’s right to be present at sentencing,
was promulgated to guarantee that defendants receive essential warnings and information
about their appellate rights after the sentence is pronounced. See Ariz. R. Crim. P. 26.9 cmt.;
see also Ariz. R. Crim. P. 26.11 (requiring notice of appellate and post-conviction rights after
sentence). In addition, our supreme court has stated Rule 26.9 is designed to allow “[a]
presentence report based upon personal interview, the defendant[’s] exercis[e of] his right
of allocution, and a chance for the judge to personally question and observe the defendant.”
Fettis, 136 Ariz. at 59, 664 P.2d at 209; see also State v. Davis, 105 Ariz. 498, 502, 467 P.2d
9 743, 747 (1970) (defendant must be given opportunity to express why sentence “should not
be pronounced against him and why he should have leniency”). Our supreme court has
characterized these as minimal requirements for a “reasonable and rational sentencing” to
take place. Fettis, 136 Ariz. at 59, 664 P.2d at 209.
¶18 Each of those requirements was met by the video conference that was held
here. The sentencing took place in open court and was pronounced by the judge after he had
reviewed the presentence report, observed and questioned Forte, and allowed him an
extensive allocution. Forte’s attorney communicated with Forte and argued mitigating
circumstances to the court. And Forte effectively exercised his right to appeal and received
notice of his right to post-conviction relief.
¶19 To be sure, there are additional virtues to a defendant’s physical presence at
a sentencing hearing not protected by an audiovisual feed from the jail. Other courts have
noted that seeing a video screen is different from seeing a live human being, see United
States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001), and a defendant’s presence in a
courtroom consequently decreases the risk that a judge will become psychologically
disconnected from the offender whom he or she is sentencing. See United States v. Navarro,
169 F.3d 228, 239 (5th Cir. 1999). Face-to-face sentencing also allows defendants and their
friends and family to experience “‘the immediacy of a living person’” at the hearing, id.,
quoting Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993), as well as any crime victims
who may wish to exercise their rights to be present and personally encounter the defendant.
See Ariz. Const. art. II, § 2.1(A)(3), (4). Moreover, a defendant’s presence with his attorney
10 in court enables instantaneous, unmediated discussion between them, see People v. Lindsey,
772 N.E.2d 1268, 1278 (Ill. 2002); People v. Guttendorf, 723 N.E.2d 838, 840-41 (Ill. App.
Ct. 2000), which is preferable to alternative forms of communication. See Seymour v. State,
582 So. 2d 127, 129 (Fla. Dist. Ct. App. 1991) (observing teleconferencing “deprived
[defendant] of the opportunity to look directly into the eyes of his counsel, to see facial
movements, to perceive subtle changes in tone and inflection . . . [and] to use all of the
intangible methods by which human beings discern meaning and intent in oral
communication”).
¶20 In our view, such interests are far from trivial and they undoubtedly inform our
state’s pertinent procedural rules which, as discussed, expressly prohibit the use of
audiovisual equipment to conduct criminal sentencing hearings remotely in felony cases. But
we do not believe that the erroneous deprivation of those procedural guarantees here so
undermined the basic framework of Forte’s sentencing such that it no longer served its core
function.
¶21 Moreover, the cases cited by Forte in contending the error here requires
automatic reversal either involved defendants who had objected properly to the procedure
below, see United States v. Torres-Palma, 290 F.3d 1244, 1245 (10th Cir. 2002), or were
decided under the procedural rules or statutes of other jurisdictions rather than on
constitutional grounds. See Lawrence, 248 F.3d at 303 n.1; Navarro, 169 F.3d at 239;
11 Seymour, 582 So. 2d at 128-29.3 Consequently, we do not agree with Forte that any violation
of Rule 26.9 is “per se prejudicial,” Torres-Palma, 290 F.3d at 1248, or structural error.
Rather, following the guidance of our supreme court in Fettis, we conclude that when the
“minimal requirements” for sentencing have been met—when the trial court has observed,
questioned, listened to the defendant and his attorney, and advised the defendant of his
appellate and post-conviction rights—a “reasonable and rational sentencing” has taken place
and the essential function of the sentencing phase of a trial has been fulfilled. 136 Ariz. at
59, 664 P.2d at 209.
¶22 We therefore conclude the error here was not structural. Furthermore, even
assuming the error could be characterized as fundamental, Forte is not entitled to relief
because he has not demonstrated that he was prejudiced by his lack of physical presence in
the courtroom. Indeed, Forte has not alleged he suffered any particular prejudice at all. He
has therefore not met his burden of proving he is entitled to appellate relief. See Henderson,
210 Ariz. 561, ¶ 20, 115 P.3d at 607-08.
Right to Counsel
¶23 In a related argument, Forte contends his physical separation from his attorney
at sentencing denied him his right to counsel guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution; article II, § 24 of the Arizona Constitution;
3 People v. Guttendorf, 723 N.E.2d 838, 839-40 (Ill. App. Ct. 2000), which was decided on federal and state constitutional grounds, involved a change-of-plea hearing rather than a sentencing hearing and is distinguishable insofar as the two proceedings serve different functions.
12 and Rule 6.1, Ariz. R. Crim. P. See State v. Moody, 208 Ariz. 424, ¶ 76, 94 P.3d 1119, 1143
(2004); State v. Sample, 107 Ariz. 407, 410, 489 P.2d 44, 47 (1971), disapproved of on other
grounds by Mincey v. Arizona, 437 U.S. 385 (1978). Forte also claims this feature of his
remote sentencing procedure was structural error.
¶24 Denial of counsel may indeed be structural error, requiring automatic reversal.
Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235-36. And, because the sentencing process here
left Forte without a means of communicating confidentially with his attorney, that process
unconstitutionally infringed on his right to counsel as guaranteed by the Sixth Amendment
to the United States Constitution. See State v. Holland, 147 Ariz. 453, 456, 711 P.2d 592,
595 (1985); State v. Pecard, 196 Ariz. 371, ¶¶ 26-27, 998 P.2d 453, 459 (App. 1999). But
we disagree with Forte that such an error “unfairly ‘deprive[s] defendants of basic
protections’” and is properly categorized as “structural.” State v. Garza, 216 Ariz. 56, n.6,
163 P.3d 1006, 1013 n.6 (2007), quoting State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933
(2003) (alteration in Garza).
¶25 The cases Forte relies on in urging that automatic reversal is warranted are
readily distinguishable. Forte was not denied representation by private counsel of his choice,
as in United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006), or wholly denied the
opportunity to confer with counsel at a critical period in the trial, as in Geders v. United
States, 425 U.S. 80, 91 (1976). Nor was he forced to proceed with counsel despite an
irreconcilable conflict or completely fractured attorney-client relationship. See State v.
Torres, 208 Ariz. 340, ¶ 6, 93 P.3d 1056, 1058 (2004).
13 ¶26 Rather, Forte’s remote participation in the disposition hearing “interfere[d]
with confidential attorney-client communications” so as to “chill[] free discussion between
a defendant and his attorney.” Pecard, 196 Ariz. 371, ¶ 27, 998 P.2d at 459. When attorney-
client communications are chilled in this fashion, our courts generally analyze whether the
defendant was prejudiced by the lack of confidential communication. See Moody, 208 Ariz.
424, ¶ 77, 94 P.3d at 1143; Pecard, 196 Ariz. 371, ¶¶ 29-30, 998 P.2d at 459. Thus, our case
law implies that when, as here, a defendant’s interaction with his counsel is erroneously
compromised—but not obstructed altogether—by the inability of the defendant to
communicate confidentially with counsel, the error is subject to a review for prejudice.
¶27 Because Forte never objected to the sentencing procedure on the ground that
it impaired his ability to communicate confidentially with counsel, we review only for
fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Even assuming
such error would be fundamental, Forte would not be entitled to relief because he again has
made no showing of prejudice. See id. Forte readily communicated with his attorney at the
disposition hearing; he expressed to his attorney that he wished to receive standard rather
than intensive probation; his attorney argued several mitigating factors to the trial court; and
during his allocution, Forte clearly expressed his desire for standard probation. Forte never
expressed any desire to confer with his attorney confidentially nor did his attorney object to
the proceedings on that ground. Although Forte purported not to recognize his attorney’s
voice and name on the record, Forte does not explain how such confusion negatively affected
his or his counsel’s sentencing presentation. Because Forte did not object to the
14 videoconferencing arrangement at sentencing, and because he has shown no actual prejudice
resulting from it, we affirm his sentence.
Disposition
¶28 The trial court erred by conducting the disposition hearing with Forte appearing
only by way of interactive audiovisual equipment and with Forte separated from his attorney
with no available means of confidential communication. But these errors were neither
structural nor prejudicial under the specific facts of this case. We therefore affirm the
revocation of Forte’s probation and the sentence imposed.
____________________________________ PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________ J. WILLIAM BRAMMER, JR., Judge
____________________________________ PHILIP G. ESPINOSA, Judge