Opinion
No. 2 CA-CR 2017-0043
11-14-2017
THE STATE OF ARIZONA, Appellee, v. BERNARDO CARRASCO JR., Appellant.
COUNSEL The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201501651
The Honorable Steven J. Fuller, Judge
AFFIRMED AS CORRECTED
COUNSEL The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a jury trial, appellant Bernardo Carrasco Jr. was convicted of aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with an alcohol concentration of .08 or more, both while there was a person under the age of fifteen in the vehicle. Carrasco absconded on the last day of his trial, and after he was returned to custody, the trial court found he had two historical prior felony convictions and sentenced him to enhanced, concurrent, presumptive prison terms of 3.75 years for each offense.
Although Carrasco delayed his sentencing for more than ninety days by absconding, nothing in the record before us establishes he had been informed before trial that, pursuant to A.R.S. § 13-4033(C), his voluntary absence could result in forfeiture of his right to appeal from a judgment of conviction. Accordingly, we consider his appeal. See State v. Bolding, 227 Ariz. 82, ¶ 20 (App. 2011) (waiver of right to appeal pursuant to § 13-4033(C) requires that defendant "has been informed he could forfeit the right to appeal" by absconding). --------
¶2 Appointed counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297 (1969), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting he has searched the record but has found "no arguable question of law that is not frivolous." Consistent with Clark, 196 Ariz. 530, ¶ 32, he has provided "a detailed factual and procedural history of the case with citations to the record" and asks us to search the record for fundamental error. Carrasco has not filed a supplemental brief.
¶3 We view the evidence in the light most favorable to sustaining Carrasco's convictions. See State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). So viewed, the evidence established that during a December 2014 traffic stop, a police officer observed that Carrasco exhibited signs of intoxication. Carrasco failed field sobriety tests, and breath testing showed he had an alcohol concentration of .185 within two hours of driving. And, the passenger in the vehicle Carrasco was driving was under the age of fifteen. See A.R.S. §§ 28-1381(A)(1), (2), 28-1383(A)(3). Sufficient evidence also supports the trial court's finding of Carrasco's historical prior felony convictions, see A.R.S. § 13-105(22)(a)(iv), and his sentences are within the statutory range and were properly imposed, see A.R.S. §§ 28-1383(M)(2), 13-703(C), (J).
¶4 In our review of the record pursuant to Anders, we noted that, although the trial court found two prior historical felony convictions as to both counts, the written judgment shows both offenses as "nonrepetitive." We thus correct the sentencing order to show both counts as repetitive, as reflected in the sentencing transcript as well as in the sentence imposed. See State v. Hanson, 138 Ariz. 296, 304-05 (App. 1983) ("Where there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement of sentence controls.").
¶5 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none. See State v. Fuller, 143 Ariz. 571, 575 (1985). Accordingly, we affirm Carrasco's convictions and sentences but correct the sentencing order to show both counts as repetitive rather than nonrepetitive.