Opinion
No. 1 CA-CR 20-0093
12-22-2020
STATE OF ARIZONA, Appellee, v. WILFRED PARRA GUTIERREZ, II, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Gonzales & Poirer, PLLC, Flagstaff By Tony Gonzales 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. CR-2018-01064
The Honorable Thomas K. Kelly, Judge Pro Tempore
The Honorable John D. Napper, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee Gonzales & Poirer, PLLC, Flagstaff
By Tony Gonzales
Counsel for Appellant
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge James B. Morse Jr. and Judge Maria Elena Cruz joined. McMURDIE, Judge:
¶1 Wilfred Parra Gutierrez, II appeals his convictions and sentences on two counts of aggravated driving while under the influence. Gutierrez's counsel filed a brief per Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that he found no arguable question of law that was not frivolous after a diligent search of the record. We allowed Gutierrez to file a supplemental brief, but he did not do so. Counsel asks this court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we affirm Gutierrez's convictions and sentences, but we modify the sentencing order to include 40 additional days of presentence incarceration credit for a total of 86 days.
FACTS AND PROCEDURAL BACKGROUND
¶2 On May 16, 2018, the Arizona Department of Public Safety received a call concerning an erratic driver in Yavapai County. A trooper responded and observed a pickup truck making an abrupt lane change and swerve within its lane, overcorrecting on several occasions. After pulling the truck over and speaking with the driver, the officer noticed the smell of alcohol. Upon running a check on Gutierrez's license, the trooper discovered the license had been revoked. The trooper administered field sobriety tests during which Gutierrez showed signs of impairment. Gutierrez was arrested and advised of his rights according to Miranda v. Arizona, 384 U.S. 436 (1966). After being asked if he had anything to drink, Gutierrez admitted to drinking the day prior. The trooper obtained a search warrant to test Gutierrez's blood. A blood test was conducted within two hours of the traffic stop, and the analysis showed Gutierrez's BAC was .229.
¶3 On May 17, 2018, Gutierrez made an initial appearance during which he agreed to release conditions setting a $1,500 secured appearance bond and was warned the trial or proceeding could be held without him if he failed to appear. On July 20, 2018, grand jurors charged Gutierrez with two counts of aggravated under the influence, one for driving while impaired to the slightest degree, and the other for driving with a BAC of .08 or higher. On August 3, 2018, the State alleged Gutierrez's prior felony convictions under A.R.S. § 13-701 and -703.
¶4 Gutierrez was present at a pretrial conference on October 15, when the court scheduled trial for March 13-15, 2019. It was noted at a later pretrial conference that the State had offered Gutierrez a plea deal, but the agreement had not been accepted. Gutierrez waived his appearance at the conference. Gutierrez did not appear for the jury trial held on March 13-14. On March 13, the court found that Gutierrez was aware of the trial dates and consequences for failing to appear, and it was appropriate to proceed in his absence. The State produced testimony from several witnesses, including the witness who first observed Gutierrez's erratic driving, the trooper who conducted the traffic stop, and the forensic scientist that tested the blood sample. The jury found Gutierrez guilty on both charges.
¶5 His absence delayed sentencing by more than eight months. Gutierrez was arrested in Maricopa County on November 4, 2019, and transferred to Yavapai County jail on December 12, 2019. He remained in custody until his sentencing on January 27, 2020.
¶6 At sentencing, the court found by clear and convincing evidence that Gutierrez had two historical prior felony convictions but determined that only one of Gutierrez's prior convictions constituted a historical prior felony for sentence enhancement under A.R.S. § 13-703. The court also found two aggravating circumstances: Gutierrez's failure to appear at trial and another felony offense not used as a historical prior. The court found that Gutierrez's support from family and friends was a mitigating circumstance. The court sentenced Gutierrez to five years' imprisonment for each count to run concurrently and awarded him 46 days' presentence incarceration credit. Gutierrez appealed.
The State argued that by accepting a plea agreement on an aggravated assault charge in 2004 Gutierrez had admitted to a prior felony conviction involving a dangerous offense as contemplated by A.R.S. § 13-105(22)(ii). The superior court rejected this argument and declined to apply the conviction as a historical prior because the plea agreement's language stated explicitly the offense was non-dangerous. --------
DISCUSSION
¶7 We have read and considered counsel's brief and have reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We find none.
¶8 Gutierrez was present or voluntarily waived his appearance and was represented by counsel at all stages of the proceedings against him. The record reflects the superior court afforded Gutierrez all his constitutional and statutory rights and conducted the proceedings following the Arizona Rules of Criminal Procedure. The court held appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the jury's verdict. Gutierrez's sentences fall within the range prescribed by law, but the court awarded him insufficient credit for presentence incarceration.
¶9 The trial court gave Gutierrez 46 days of presentence incarceration credit. Gutierrez was in custody for a total of 86 days. This represents the time spent in jail immediately after the offense and the time spent in custody dating from the day of his arrest in Maricopa County. A defendant is entitled to presentence incarceration credit for "[a]ll time actually spent in custody pursuant to an offense[.]" A.R.S. § 13-712(B). We modify Gutierrez's sentencing order to add 40 days' credit for a total of 86 days. See Ariz. R. Crim. P. 31.19(c); State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (modifying the defendant's sentence to include presentence incarceration credit).
¶10 Under A.R.S. § 13-4033(C), the State could have raised Gutierrez's delay of sentencing as grounds to find he had waived his right to appeal. However, the State did not raise the issue. A waiver of the right to an appeal is not self-effectuating. State v. Raffaele, 249 Ariz. 474, 477, ¶ 15 (App. 2020). Because the superior court made no finding during sentencing that Gutierrez knowingly, voluntarily, and intelligently waived his right to appeal, the right was not waived. Id.
CONCLUSION
¶11 We affirm Gutierrez's convictions and sentences as modified. After the filing of this decision, defense counsel's obligations pertaining to Gutierrez's representation in this appeal will end after informing Gutierrez of this appeal's outcome and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).