State v. Viliborghi
1 CA-CR 16-0550
| Ariz. Ct. App. | Jul 27, 2017Background
- Victim received a $974,599.86 inheritance check in Las Vegas and was referred to Appellant Renee Viliborghi as a "financial adviser." Appellant deposited the check into her company (Logical Enterprises) account in Tempe.
- The victim later learned of a two-page "irrevocable assignment" allegedly giving Logical Enterprises half the inheritance; he denies signing the complete document and obtained a civil default judgment in 2014.
- The State indicted Appellant on one count of fraudulent schemes and artifices and one count of theft (class 2 felonies); the theft verdict included a finding the value was $100,000 or more.
- Defense moved for a continuance shortly before trial to obtain a handwriting/document-expert after reviewing grand jury material; the trial court denied the continuance.
- Appellant was convicted on both counts and sentenced to concurrent mitigated prison terms of 4.5 years; she appealed raising claims about the continuance, venue, a jury finding on value, and sentencing considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance / Sixth Amendment (ineffective assistance) | State: denial was within discretion; no change in theory and delay prejudicial to victim's right to speedy resolution | Viliborghi: needed a 60-day continuance to obtain a document/handwriting expert after State's "new" theory; counsel rendered ineffective without expert | Court: no abuse of discretion or Sixth Amendment violation; State's theory was not new; many prior continuances, no adequate offer of proof how expert would help |
| Venue (Mohave County) | State: venue proper because elements or results occurred in Mohave County (phone calls, Appellant’s travel, meetings) | Viliborghi: key events (deposit, documents) occurred in Maricopa County, so venue improper | Held: Defendant waived venue by failing to object before trial; even on merits, circumstantial evidence supported Mohave County venue |
| Jury finding on value for fraud count (Apprendi/Alleyne) | State: value determination implicit from theft verdict; court may rely on jury’s related finding | Viliborghi: trial court should have submitted value of benefit on fraud count to the jury because it affects mandatory minimums | Held: Alleyne/Apprendi require jury-findings for facts raising mandatory minimums, but jury’s explicit $100,000+ finding on theft made the same fact implicit for the fraud count; no fundamental error |
| Sentencing consideration / Blakely | State: court properly weighed mitigating and non-statutory factors and imposed mitigated sentence | Viliborghi: court considered an aggravating factor not found by jury (significant loss/impact) in sentencing | Held: No Blakely violation; court imposed a mitigated sentence below what jury findings would allow and was free to weigh victim impact/loss in mitigation analysis |
Key Cases Cited
- State v. Forde, 233 Ariz. 543 (discretionary review of continuance rulings)
- State v. Aragon, 221 Ariz. 88 (continuance/substitution of counsel may be structural error)
- Apprendi v. New Jersey, 530 U.S. 466 (any fact increasing penalty beyond statutory maximum must be found by a jury)
- Alleyne v. United States, 133 S. Ct. 2151 (jury must find facts that increase mandatory minimums)
- Blakely v. Washington, 542 U.S. 296 (judge may not enhance sentence based on facts not found by a jury)