NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CLAY PHILLIP FACCIO, Appellant.

No. 1 CA-CR 13-0849

Appeal from the Superior Court in Maricopa County

No. CR2012-148338-002

The Honorable Robert E. Miles, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Jeffrey L. Force

Counsel for Appellant

Clay Phillip Faccio, Douglas

Appellant
STATE v. FACCIO

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.

C A T T A N I, Judge:

¶1 Clay Phillip Faccio appeals his convictions of possession of 

narcotic drugs for sale (a class 2 felony), possession or use of dangerous 

drugs (a class 4 felony), and possession of drug paraphernalia (a class 6 

felony) and the resulting sentences. Faccio’s counsel 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), certifying that, after a diligent search of 

the record, he found no arguable question of law that was not frivolous. 

Faccio filed a supplemental brief raising several claims of error, which we 

address below. Counsel asks this court to search the record for reversible 

error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). 

After reviewing the record, we affirm Faccio’s convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 The relevant facts, viewed in the light most favorable to 

upholding the jury’s verdicts, are as follows. In September 2012, C.D., a

police informant, agreed to purchase one gram of heroin for $80 from 

Faccio. Mesa Police Detective Clevenger provided C.D. with a recording 

device, and Detectives Clevenger and McKnight accompanied C.D. to 

Faccio’s apartment. During the controlled buy, Detective Clevenger 

remained in his vehicle while Detective McKnight watched C.D. enter 

Faccio’s apartment and remain inside for a few minutes. Once inside the 

apartment, C.D. handed $80 to Faccio’s girlfriend, then Faccio came out 

from his bedroom and handed C.D. a baggie containing heroin. C.D. left 

the apartment and gave the baggie to Detective McKnight. Using the 

information provided from this controlled buy, police officers obtained a 

search warrant for Faccio’s apartment and executed the warrant one week 

later.

¶3 While searching a computer tower in Faccio’s bedroom, 

officers found (1) a black plastic bag with a crystalline, clear to white 

substance that looked like methamphetamine, (2) three loaded syringes 

containing a dark liquid substance that appeared ready to be injected, and 
STATE v. FACCIO

Decision of the Court

3

(3) four empty syringes. The clear to white substance tested positive for 

methamphetamine, and the dark liquid substance tested positive as a 

mixture of methamphetamine and heroin. Officers also found six cell 

phones and four digital scales in Faccio’s bedroom. During a subsequent 

police interview, Faccio admitted that he kept heroin and 

methamphetamine hidden in the computer tower in his bedroom. He also 

admitted that he used the empty syringes to shoot drugs into his arms and 

neck, and that he had intended to use the loaded syringes.

¶4 Faccio was arrested and charged with one count of possession 

of narcotic drugs for sale stemming from the controlled buy, as well as one 

count of possession or use of dangerous drugs and two counts of possession 

of drug paraphernalia resulting from the subsequent search.

¶5 Because Faccio failed to appear for trial, the court proceeded 

in absentia. On the first day of trial, the court dismissed without prejudice 

the second of the two possession of drug paraphernalia counts at the State’s 

request. The jury found Faccio guilty of the remaining counts. At 

sentencing, Faccio admitted four prior felony convictions. The court 

sentenced him as a repetitive offender to concurrent terms of 

imprisonment, the longest of which is 20 years, with 176 days’ presentence 

incarceration credit.

¶6 Faccio timely appealed. We have jurisdiction under Article 6, 

Section 9, of the Arizona Constitution and Arizona Revised Statutes 

(“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.1

DISCUSSION

¶7 We have reviewed and considered counsel’s brief, Faccio’s 

supplemental brief, and the record for reversible error. See Leon, 104 Ariz. 

at 300, 451 P.2d at 881. We find none.

¶8 In his supplemental brief, Faccio argues his counsel was 

ineffective. A claim of ineffective assistance of counsel, however, may only 

be raised in a Rule 32 proceeding for post-conviction relief, not on direct 

appeal. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 

1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). 

We therefore do not address the merits of this argument.

 

1 Absent material revisions after the relevant date, we cite the current 

version of the statute.
STATE v. FACCIO

Decision of the Court

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¶9 Faccio next argues that several alleged procedural errors 

warrant reversal. Faccio notes that he “never was indicted.” But the 

Arizona Rules of Criminal Procedure allow criminal proceedings to be 

initiated by direct complaint (as in Faccio’s case) instead of by indictment. 

See Ariz. R. Crim. P. 2.2(b). Although a defendant has a right to a 

preliminary hearing when the State proceeds by direct complaint, Faccio 

waived that right. See Ariz. R. Crim. P. 5.1(a).

¶10 Faccio also argues that the court erred by proceeding with 

trial in his absence. A criminal defendant may waive the right to be present 

at any proceeding, including trial, by “voluntarily absenting” himself. Ariz. 

R. Crim. P. 9.1. The court may infer voluntariness if the defendant had 

personal notice (1) of the time of the proceeding, (2) of the right to be present 

at the proceeding, and (3) that the proceeding would go forward in his

absence if he failed to appear. Id. Once these elements are established, the 

defendant has the burden to show the absence was involuntary. State v. 

Reed, 196 Ariz. 37, 39, ¶ 3, 992 P.2d 1132, 1134 (App. 1999).

¶11 Faccio was present at the hearing setting the trial date and 

time and thus had personal knowledge of the time set for trial.

Additionally, Faccio was informed multiple times of his right to attend the 

proceedings against him and was warned on multiple occasions (both 

orally and in writing) that the proceedings would move forward in his 

absence should he fail to appear. The record shows no explanation or 

excuse offered by Faccio for his absence. In these circumstances, the 

superior court did not err by proceeding in absentia.

¶12 Faccio makes three additional claims of procedural error 

without elaboration. First, he states that the State did not provide him full 

disclosure, but makes no mention of what material was allegedly not timely 

disclosed, how that material would have been relevant, or how the alleged 

non-disclosure resulted in prejudice. Second, he mentions—without any 

explanation—Arizona Rule of Evidence 607, which allows any party to 

impeach a witness. Third, he cites Alejandro v. Harrison, 223 Ariz. 21, 219 

P.3d 231 (App. 2009), in which this court held that the superior court may 

not refuse to accept an otherwise adequate, unconditional guilty plea to less 

than all counts on the sole basis that the State objects. Our review of the 

record has not revealed any basis for relief relating to these assertions of 

error.
STATE v. FACCIO

Decision of the Court

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¶13 Faccio next argues that his Miranda2 rights were violated. 

Contrary to Faccio’s position, Detective Clevenger testified that he read 

Faccio his Miranda rights before beginning to question him, and that Faccio 

agreed to waive those rights and proceed with the interview. The detective 

expressly affirmed that Faccio had not been questioned prior to hearing and 

waiving his Miranda rights. Faccio has not shown a Miranda violation.

¶14 Faccio also challenges the credibility of the police informant, 

C.D. Witness credibility is a question exclusively for the jury, and having 

heard C.D.’s testimony, including cross-examination by Faccio’s counsel, 

the jury was well situated to gauge C.D.’s credibility and determine the 

weight to afford his testimony. See State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 

P.3d 265, 269 (2007).

¶15 Faccio next claims he was denied due process because he was 

not permitted to independently weigh the confiscated drugs to dispute the 

quantity of drugs involved. Beyond a generalized request that the State 

“make available” any and all evidence disclosed, the record reflects that 

Faccio did not otherwise pursue independent testing of the drugs. 

Moreover, other evidence, including Faccio’s statements to investigators, 

further corroborated the weight measurements.

¶16 Faccio also argues the State improperly failed to present 

fingerprint or DNA evidence. But the other evidence outlined above—

including C.D.’s testimony (and the recording of the controlled buy), the 

location of the drugs and paraphernalia found in Faccio’s apartment, and 

Faccio’s admissions to police—provide sufficient support for the 

convictions, and a lack of fingerprint or DNA evidence does not establish a 

basis for relief.

¶17 Finally, Faccio challenges the propriety of the sentences 

imposed. He claims he should not have been subject to an enhanced 

sentence as a repetitive offender because he was not given a trial on priors. 

At the sentencing hearing, however, Faccio admitted to four prior felony 

convictions after an appropriate colloquy delineating his constitutional 

rights and the consequences of admitting to the priors. See Ariz. R. Crim. 

P. 17.6. In light of Faccio’s admissions, no further evidence was necessary 

to establish these four prior (including two historical prior) felony 

convictions, and Faccio was properly sentenced as a category three 

repetitive offender. See A.R.S. § 13-703(C).

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. FACCIO

Decision of the Court

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¶18 Faccio further contends that the sentences imposed were cruel 

and unusual, particularly in light of the disparity between his sentences

(three concurrent terms, the longest of which is 20 years) and those imposed 

on his girlfriend (1.5 years’ imprisonment followed by 3 years’ probation). 

Faccio’s sentences fall within the range prescribed by law given the 

circumstances of his case, including the severity of the offenses (class 2, 4, 

and 6 felonies), aggravating and mitigating factors, and Faccio’s criminal 

history of at least four prior felony offenses. Faccio’s girlfriend, although 

initially charged as a co-defendant on all counts, later entered a plea of 

guilty to two amended, lesser counts pursuant to a plea agreement with the 

State. Additionally, Faccio’s girlfriend (unlike Faccio) was not sentenced as 

a repetitive offender. Because Faccio and his girlfriend were not similarly 

situated, the disparity in their sentences does not support Faccio’s 

contention that the sentences he received were cruel and unusual.

¶19 Faccio was represented by counsel at all stages of the 

proceedings. The record reflects that the superior court afforded Faccio his 

rights under the federal and state constitutions, and that the proceedings 

were conducted in accordance with Arizona statutes and the Arizona Rules 

of Criminal Procedure. The court conducted appropriate pretrial hearings, 

and the evidence presented at trial and summarized above was sufficient 

to support the jury’s verdicts. Faccio’s sentences fall within the range 

prescribed by law, with proper credit given for presentence incarceration.

¶20 After the filing of this decision, defense counsel’s obligations 

pertaining to Faccio’s representation in this appeal will end after informing 

Faccio of the outcome of this appeal and his future options. See State v. 

Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Faccio shall 

have 30 days from the date of this decision to proceed, if he desires, with a 

pro se motion for reconsideration or petition for review.

CONCLUSION

¶21 For the foregoing reasons, we affirm Faccio’s convictions and 

sentences.