Opinion
No. 1 CA-CR 17-0762
07-12-2018
STATE OF ARIZONA, Appellee, v. SALVADOR FALCON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Coconino County
No. S0300CR201600082
The Honorable Dan R. Slayton, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff
By Brad Bransky
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Salvador Falcon appeals his convictions and sentences for two counts of aggravated DUI, arguing that the trial court erred by holding his trial in absentia. Because Falcon voluntarily waived his right to be present at trial, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Falcon was arrested in Flagstaff for driving under the influence on December 31, 2014. Thirteen months later, Falcon was indicted in Coconino County Superior Court and charged with two counts of aggravated DUI. At the time of his indictment, Falcon was living in Las Vegas, Nevada.
¶3 Falcon never personally appeared for any of his court proceedings, but he sometimes appeared telephonically. On April 1, 2016, Falcon signed a waiver of personal appearance for his arraignment, as well as a plea of not guilty. In his waiver of personal appearance, Falcon promised to appear for all scheduled court appearances and stated, "I understand that if I fail to appear for trial, the trial could be held in my absence and I could be convicted." Falcon's attorney filed this waiver with the trial court, and the court held an arraignment in Falcon's absence, entered his not guilty plea, and ordered him to appear telephonically at the next case management conference.
¶4 Between May and October 2016, Falcon appeared telephonically at some case management conferences and had his presence waived at others. At his January 3, 2017, case management conference, Falcon appeared telephonically and requested that the case go to trial. The court issued pretrial orders on February 6, 2017, setting trial for May 9, 2017. The court waived Falcon's presence at the final pretrial conference on March 30, 2017, and the court instructed Falcon's attorney to make sure Falcon was aware of his trial date and that the trial could be held in his absence if he failed to appear.
¶5 On April 12, 2017, Falcon's attorney filed a motion to continue the trial, stating that Falcon indicated to his attorney that he would be unable to travel to Flagstaff for his trial due to financial destitution. The court denied the motion.
¶6 Falcon failed to appear for trial on May 9, 2017, and Falcon's attorney objected to the trial being held in absentia. Just as the trial was starting, Falcon called his attorney and said that he believed the trial should not go forward in his absence. When Falcon's attorney offered him the option of speaking to the court, he declined. Falcon's attorney acknowledged that the trial court could order his office to provide Falcon with a bus ticket, but he could not tell the court whether he actually offered a bus ticket to Falcon because of confidentiality restrictions. The court then concluded that Falcon voluntarily waived his right to be present and proceeded in absentia.
DISCUSSION
¶7 "We review de novo whether a defendant knowingly and voluntarily waived his right to be present at trial." State v. Fitzgerald, 232 Ariz. 208, 213, ¶ 23 (2013). "A defendant has a constitutional right to be present at every stage of a trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, Section 24 of the Arizona Constitution." Id. at 214, ¶ 31. However, a defendant may voluntarily waive his right to attend trial. Ariz. R. Crim. P. 9.1; Fitzgerald, 232 Ariz. at 214, ¶ 31.
¶8 The court may infer that a defendant's absence at trial is voluntary if the defendant had: (1) actual notice of the date and time of the proceeding, (2) notice of the right to be present, and (3) notice that the proceeding would go forward in the defendant's absence. Ariz. R. Crim. P. 9.1. Once the court infers that a defendant's absence is voluntary under Rule 9.1, the burden is on the defendant to establish that his absence was involuntary. State v. Reed, 196 Ariz. 37, 39, ¶¶ 3-4 (App. 1999).
¶9 The record demonstrates that all three elements of Rule 9.1 are met. Falcon's April 12, 2017, motion to continue trial shows he had actual notice of the trial scheduled for May 9, 2017. Falcon also called his attorney the morning of the first day of trial and stated that the trial should not proceed in his absence, showing that he knew the trial was happening at that time. Falcon's other filings show that he had notice of his right to be present: In his waiver of personal appearance, Falcon promised to appear for all scheduled court appearances; also, Falcon filed a motion to continue
so he could attend the trial. Finally, Falcon explicitly acknowledged that he knew the trial could go on in his absence in his waiver of personal appearance for the arraignment, which states, "I understand that if I fail to appear for trial, the trial could be held in my absence and I could be convicted."
¶10 Because the elements of Rule 9.1 are met, the trial court was entitled to infer that Falcon's absence was voluntary. Reed, 196 Ariz. at 39, ¶ 4. However, the trial court, and this Court, must also consider any information provided by Falcon that tends to overcome that inference of voluntary absence. Id.
¶11 Falcon's sole argument is that his absence was involuntary because he is indigent and could not afford to travel to Flagstaff for his trial. Falcon relies on State v. Garcia-Contreras, which states that a voluntary waiver "presupposes meaningful alternatives" and "requires true freedom of choice." State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 11 (1998). In Garcia-Contreras, civilian clothing for the defendant was not available at the time of trial and he was forced to choose between two constitutional rights—his right to be present at trial and his right to not be compelled by the state to appear before a jury in prison attire. Id. at 146, ¶¶ 6-8. Falcon was in no such dilemma, and he concedes in his opening brief that it would have been an "easy fix" for either the court or defense counsel to provide him with a bus ticket. The trial court set the trial date three months in advance, and Falcon's motion to continue indicates that he knew of the trial date at least one month in advance. This was sufficient time for Falcon to arrange for his attorney's office to provide him with a bus ticket, and for that reason we hold that Falcon had a "meaningful alternative" such that he could voluntarily waive his right to be present.
¶12 Falcon argues that rights "fundamental to due process must be accorded irrespective of ability to pay." Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972). While this may be true, Falcon had the opportunity to arrange for transportation to trial and was therefore not denied any fundamental due process right as a result of his inability to pay for travel.
CONCLUSION
¶13 Because the trial court properly inferred that Falcon's absence was voluntary under Rule 9.1 and Falcon failed to overcome that inference,
the trial court did not err in holding Falcon's trial in absentia. Accordingly, we affirm Falcon's convictions and sentences.