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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

ADAM PAUL BLOMDAHL
, Appellant

.
No. 1 CA

- CR 19

- 0655

Appeal from the Superior Court in Maricopa County

No. CR 2016

- 000575

- 001 The Honorable Jennifer C. Ryan

- Touhill
, Judge

AFFIRMED AS MODIFIED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Brian Coffman Counsel for Appellee

Maricopa County Public Defender’s Office
, Phoenix By Jennifer Roach C ounsel for Appellant FILED 3-30-2021STATE v. BLOMDAHL Decision of the Court

2 MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z , Judge :

¶1 Adam Paul Blomdahl appeals his convictio ns and sentences for first

- degree murder and two counts of aggravated assault

. He raises issues related to his waiver of counsel and the superior court’s revocation of his self

- representation at trial

. Blomdahl also challenges the court’s jury instructions and its award of presente n ce incar ceration cr edit. For the following reasons, we affirm Blomdahl’s convictions but award an additional eight days of presentence incarceration credit to the sentence imposed for the first

- degree murder conviction ( c ount 1)

. We also correct a

non

- substantive clerical error in the sentencing order.

FACT UAL AND PROCEDURAL HISTORY

¶2 Blomdahl told his neighbor that he suspected the n eighbor’s adult daughter , G. G.
, had broke n a window in his home. The following evening, Blomdahl pulled G. G. from her car to his driveway where he “started hitting her in the face , and . . . kicked her in the stomach[

. ]” Blomdahl stopped assaulting G.G

. when her fiancé, D. P

. , approach ed

. Blomdahl then left the driveway but returned with a gun

. He sho t G.G.
, D.P., and P. E. , another neighbor. G.G. fell to the ground, but t he three victims survived the shooting.

¶3 Blomdahl then got into his car. As G.G. attempted to stand, Blomdahl “drove right into her[,] . . . knock[ing] her down[.]” Blomdahl retreated and wai ted in his car until G.G. “start[ed] limp ing across the street” when he drove into her again , knocked her down, and drove over her

. Blomdahl then backed up and “stopped his car right on top of [ G.G. ]” before speeding away

. ¶4 G.G. survived but was unconscious

. She was transported to a hospital where, a few days later
, her mother made the decision to remove her from life support

. G.G. died from multiple gunshot wounds and blunt force injuries.STATE v. BLOMDAHL Decision of the Court

3 ¶5 The State charged Blomdahl with first

- degree murder and
two cou nt s of aggravated assault , all dangerous felonies

. After three mental health experts subsequently evaluated Blomdahl, the superior court found he was competent to stand trial

. See Ariz. R. Crim. P. (“Rule”) 11 ( describing procedures for determining a criminal defendant’s competence to stand trial ). Blomdahl eventually waived counsel and represent ed himself at trial. During opening statements, however, t he superior court revoked Blomdahl’s self

- representation an d appointed his advisory counsel to represent him for the remainder of trial

. ¶6 T he jury found Blomdahl guilty as charged

. At sentencing,
t he superior court imposed consecutive prison terms of life for the first

degree murder conviction and twelve years eac h for the aggravated assault convictions. The court also awarded 1191 days of presentence incarceration credit and applied the credit to each prison term

. Blomdahl timely appealed

. We have jurisdiction pursuant to Arizona Revised Statutes ( “ A.R.S. ” ) sections 12

- 120.21(A)(1), 13

- 4031 , and

- 4033(A)(1).

DISCUSSION

I. Self

- Representation

¶7 Attached to his motion seeking self

- representation , Blomd ahl included a copy of a letter he wrote to his lawyer in which he refers to

“ Hotel/motel receipts from Fidiciary [s ic]” as among the evidentiary items he had previously requested and not yet received. Based on that reference, and “ other fiduciary

- related documents [that] were later filed in the record [,]” B lomdahl argues the superior court erred by accepting his waiver of counsel without considering that he had a fiduciary appointed by the Veteran’s Administration. According to Blomdahl, “[i]f an indigent person requires assistance to manage his finances, then he is unlikely to have the competency to utilize his right to self

- representation[.]” See State v. Cornell
, 179 Ariz. 314, 324 (1994) ( “ [ T ] he law guarantees a defendant the right to waive counsel if he is mentally competent to do so.” ) (citing Faretta v. California , 422 U.S. 806, 834 (1975) ) ; State v. I b eab uchi
, 248 Ariz. 412, 416, ¶ 16 (App

. 2020) (discussing Indiana v. Edwards
, 545 U.S. 164 (2008), and how
, compared to the competency required t o stand tria l, self

- representation requires “more in the way of mental capacity” ).

¶8 We reject Blomdahl’s argument. He cites no authority that requires a court to delve further into a defendant’s competency based solely on the defendant ’s having a fiduciary or similar representative who ass ist s with managing his financial affairs. See State v. Amaya

- Ruiz , 1 66 Ariz. 152,STATE v. BLOMDAHL Decision of the Court

4 162 ( 1990) ( the superior court has broad discretion in determining whether to order competency hearings)

. More importantly, Blomdahl refers to nothing in the record that indicates he lacked the requisite competency to represent himself. Indeed, t he superior court expressly noted the heightened competency necessary for self

- representation and nonetheless accepted Blomdahl’s waiver of counsel having found he did so kn owingly, intelligently, and voluntarily

. The record supports that finding

. ¶9 In addition to challenging the superior court’s decision to accept his waive r of counsel, Blomdahl argues the court erred in revok ing his self

- representation. We review the decisi on to revoke a defendant’s self

representation for an abuse of discretion. State v. Hidalgo , 241 Ariz. 543, 554, ¶ 44 (2017).

¶10 Revoking a defendant’s self

- representation is permitted when the defendant fails to comply with court rules or orders. Id

. In this case, j ust before opening statements commenced, the court verbally granted the State’s motion in limine and explained to Blomdahl he was prohibited from making certai n statements to the jury, including that he was a war veteran

. Nonetheless, during his opening statement that afternoon, Blomdahl told the jury , “the defendant is a credible United States veteran.”

¶11 On appeal, Blomdahl concedes that he erred by making the “veteran” comment , but he contends the error was not sufficiently severe to justify revoking his self

- representation. We disagree.

¶12 When the superior court accepted Blomdahl’s waiver of counsel, it warned Blomdahl that he would be held to the same standard s as an attorney, and his self

- representation could be revoked if he failed to follow “court rules” and “courtroom procedure.” Indeed, the court repeated that warning when it sustained the State’s objection after Blomdahl began his opening statement by telling the jury that the State was “hiding something

. ” After the jury was excused from the courtroom, the
court warn ed Blomdahl he was improperly referring to issues that had been litigated in this case. “The next step,” the court told Blomdahl, “ will be advisory counsel will be your attorney.” Blomdahl then resumed his opening statement and informed the jury he was a veteran. The jury was once again excused from the courtroom to address the State’s objection

. R ecognizing the disruptive effect of Blomdahl’s apparent disregard for its rulings was having on the trial, the court re marked : “ I am not going to send a jury in and out of the courtroom every time the defendant violates a court order. That will interfere and undermine the court’s ability to conduct this proceeding in an efficient and orderly manner.”STATE v. BLOMDAHL Decision of the Court

5 ¶13 On this record, we cannot conclude the superior court abused its discretion by revoking Blomdahl’s self

- representation. See State v. Gomez , 231 Ariz. 219, 223, ¶¶ 14

- 15 (2012) (rejecting argument that “serious obstructionist conduct” required to justify revocation of defendant’s self

representation and noting, “ [ a ] defendant who proves himself incapable of abiding by the most basic rules of the court is not entitled to defend himself”) ( internal quotation and citation omitted) ; State v. Whalen
, 192 Ariz. 103, 108 (App. 1997) ( concluding revocation of defendant’s self

representation was not error because the court provided defendant “clear, unambiguous, and timely warnings that he would lose the right to represent himself unless he was willing to follow [the court’s ] order [ s]”)

.

II. Right to B e Present

¶14 Blomdahl next argues the superior court violated his right to be present when, at a pretrial hearing
, the superior court addressed several of Blomdahl’s motions in his absence

. Most of the motions concerned requests for discovery , which the court either granted, denied , or ordered Blomdahl to clari fy

. ¶15 “ A criminal defendant generally has the right to be pr esent in the courtroom during proceedings in his case. ” Morehart v. Barton , 226 Ariz. 510, 513, ¶ 13 (2011). A defendant can, however, voluntarily relinquish that right

. A court may infer an absence is voluntary if the defendant had personal notice of the date and time of the proceeding, notice of the right to be present at it, and notice that the proceeding would continue in h is absence. Ariz. R. Crim. P. 9.1

. We review the superior court’s determination of voluntary absence for an abuse of discretion. State v. Reed
, 196 Ariz. 37, 3 8 , ¶ 2 (App. 1999)

. ¶16 Here, a s the hearing on Blomdahl’s motions began
, he refused to be transported from custody

. The court therefore found Blomdahl waived his presence by voluntarily excusing himself

. According to the record, Blomdahl had the requisite notice and warning for the court to properly infer under Rule 9.1. that h is absence was voluntary

. As Blomdahl concedes, he did not request a hearing or otherwise attempt to rebut the Rule 9.1 inference

. See Reed , 196 Ariz. at 39, ¶ 3 (defendant has burden of rebutting the superior cour t’s inference of voluntary absence ). T he court did not abuse its discretion

.
III. Jury Instructions

¶17 Blomdahl contends the superior court erred by denying his request for a jury instruction on manslaughter and negligent homicide asSTATE v. BLOMDAHL Decision of the Court

6 lesser

- included offenses of first

- degree murder. See St ate v. Celaya , 135 Ariz. 248, 251 (1983) ( A lesser

- included offense is an offense “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser

one .” ).

¶18 We need not decide whether the court erred by refusing to give manslaughter and negligent homicide instructions because the court instructed the jury on second

- degree murder as a lesser offense of first

degree murder. By finding Blomdahl guilty of the charged offense, the jury

— as instructed

— did not consider second

- degree murder and thus logically would not have considered manslaughter or negligent homicide, which are lesser

- included offenses of second

- degree murder. Accordingly, if the court erred by not instructing the jury on manslaughter or negligent homicide , the error was harmless. State v. N elson
, 229 Ariz. 180, 186
, ¶ 24 (2012) ; Amaya

- Rui z , 166 Ariz. at 174; State v. Vickers
, 159 Ariz. 532, 542

- 43 (1989) ; see State v. Nieto , 186 Ariz. 449, 456 (App. 1996) (“ The general rule is that negligent homicide is a lesser

- included offense of manslaughter and the only difference between the offenses is an accused ’ s mental state at the time of the incident .”).

IV. Presentence Incarceration Credit

¶19 Bl omdahl argues the superior court should have credited him with an additional eight days of pre sentence incarceration credit for a total of 1199 days. In response, t he State concedes Blomdahl was in pretrial
custo dy for 1199 days and thus entitled to that amount of presentence incarceration credit

. As the State notes, however, the superior court erred by applying Blomdahl’s time

- served credits to each of his consecutive
sentences. See State v. McClure , 189 Ariz. 55, 57 (App. 1997) (“When consecutive sentences are imposed, a defendant is not entitled to presentence incarceration credit on more than one of those sentences, even if the defendant was in custody pursuant to all of the underlying charges prior to trial.”)

. Thus, although the court should have awarded eight days of credit to one sentence , the State argues Blomdahl ultimately was not prejudic ed because he “received almost triple the amount of presentence incarceration to which he was entitled[.]”

¶20 We recognize that the court erred by crediting time

- served to each sentence. But the State did not appeal and challenge that error, thus precluding our authority to correct it. See State v. Dawson , 164 Ariz. 278, 286 (1990) (“I n the absence of a timely appeal or cross

- appeal by the state seeking to correct an illegally lenient sentence, an appellate court has noSTATE v. BLOMDAHL Decision of the Court

7 subject matter jurisdiction to consider that issue. ”). A too

- lenient sentence that we cannot correct due to the State ’s inaction, should not prohibit correction to a legally incorrect sentence that, by itself, is prejudicial.

¶21 The superior court was required to credit Blomdahl for “[a]ll time actually spent in custody [.]” A.R.S. § 13

- 712(B). By failing to include eight days that Blomdahl was in custody before he was sentenced, the court thus erred in awarding only 11 91 days. We therefore vacate the 1191 days of presentence incarceration credited to the sentence for c ount 1 , and award 1199 days to that sentence. Lacking the jurisdiction to correct the errors in awarding presentence incarceration to the sentences in c ounts 2 and 3, we affirm those awards.

V. Sentencing Order

¶22 While t his appeal was pending, Blomdahl filed a m otion to
t ransfer j urisdiction to c orrect a c lerical e rror requesting jurisdiction be revested in the superior court to correct a statutory citation in the sentencing order. Specifically, the sentencing order incorrectly refers to A.R.S. § 13

- 751 in connection with Blomdahl’s sentence for first

- degree murder. That statute applies to capital cases, not to cases suc h as this one in which t he State did not file a notice of intent to seek the death penalty. Compare A.R.S. § 13

- 751 (A)
, with A.R.S. § 13

- 752(A)

. ¶23 This court has auth ority to c orrect clerical and similar errors in sentencing order s

. See State v. Vandever , 211 Ariz. 206, 210, ¶ 16 (App. 2005) (amending minute entry to show conviction was for a c lass 6 , not c lass 3, felony)

. Accordingly, having previously denied the motion , we amend the sentencing order entered November 2 6, 2019
, by replacing the reference to A.R.S. § 13

- 751 with a reference to A.R.S. § 13

- 752

. ¶24 Finally, Blomdahl personally filed an u ntitled forty

- four

- page pleading with th is court wherein he “[p]etition [s] the government for a redress of his grievances.” Blomdahl is represented by counsel on appeal; he is not entitled to hybrid representation. S ee S tate v. Dixon , 226 Ariz. 545, 553, ¶ 39 (2011)

. We therefore summarily deny his request

.STATE v. BLOMDAHL Decision of the Court

8 CONCLUSION

¶25 We affirm Blomdahl ’s convictions

. We amend the sentencing order to award an additional eight days of presentence credit only to the sentence imposed for c ount 1 , and we corr ect a clerical error in the sentencing order. We otherwise affirm the sentences imposed.