Opinion
1 CA-CR 12-0344
05-07-2013
STATE OF ARIZONA, Appellee, v. GREGORIO HERNANDEZ, Appellant.
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Thomas Baird, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-152542-001
The Honorable Robert E. Miles, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Joseph T. Maziarz, Acting Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Thomas Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix THUMMA, Judge ¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Hernandez asks this court to search the record for fundamental error. Hernandez was given the opportunity to file a supplemental brief but has not done so. After reviewing the record, we affirm Hernandez's convictions and resulting sentences.
FACTS AND PROCEDURAL HISTORY
This court views the facts in the light most favorable to sustaining the trial court's judgment and resolves all reasonable inferences against Hernandez. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶2 On September 27, 2010, Phoenix police officers Turley and Contreras conducted a traffic stop near the intersection of 51st Avenue and Thomas Road. Hernandez was the driver and sole occupant of the vehicle. While approaching the vehicle, Officer Contreras saw Hernandez lean forward and reach toward the center console. Focusing his attention on where Hernandez seemed to be reaching, Officer Contreras saw a plastic baggie within Hernandez's reach. After Hernandez was arrested and read his Miranda rights, Officer Contreras performed an inventory search of the vehicle. In the center console, Officer Contreras found two plastic baggies that subsequent testing revealed contained marijuana and methamphetamine. ¶3 After being transported to the police station, Officer Turley interviewed Hernandez. Hernandez admitted that the baggies contained marijuana and methamphetamine. Officer Turley, who is also a qualified phlebotomist, drew a blood sample from Hernandez, which tested positive for marijuana and methamphetamine. ¶4 Hernandez was charged with two counts: (1) possession or use of dangerous drugs (methamphetamine), a Class 4 felony, and (2) possession or use of marijuana, a Class 6 felony. At his arraignment, Hernandez was represented by counsel and pled not guilty to both counts. Hernandez was advised that, should he fail to appear at trial, he could be tried in absentia. Although the trial was continued several times for various reasons, including twice for substitution of defense counsel, Hernandez was represented at all relevant times. Hernandez was present at all pre-trial conferences, with the exception of the final trial management conference. ¶5 On January 5, 2012, Hernandez was apprised of his March 5, 2012 final trial management conference (later continued to March 6, 2012 on the court's own motion) and March 12, 2012 trial date, but Hernandez failed to appear for the final trial management conference. A bench warrant was issued for his arrest. As a result of the warrant, the final trial management conference was continued to March 26, 2012, and the trial was reset for April 3, 2012. ¶6 Hernandez failed to appear at trial, and after argument, the superior court ruled that the trial would proceed in absentia. Hernandez's counsel did not object to the ruling. After a two-day trial, the court properly instructed the jury, including regarding the standard of proof; the elements of the offenses; the applicable statutory definitions (including for possession and the mental state of knowingly); and that no consideration should be given or speculation made as to Hernandez's absence from the courtroom. The jury returned guilty verdicts on both counts. ¶7 After the verdicts but prior to sentencing, Hernandez appeared in court, waived his right to a trial on prior convictions and stipulated that he had one historical felony conviction for a Class 3 felony and would "be sentenced as a category 2 repetitive offender." Also prior to sentencing, Hernandez admitted that he failed to appear at trial because "[h]e was anxious about the length of time [] he was facing." At sentencing, Hernandez "apologize[d] to the State and the Court for not showing up [for] [his] trial" and acknowledged through counsel that not appearing for trial was a "monumental mistake" he made because "[h]e was scared." ¶8 The court found that "the aggravating and mitigating circumstances essentially balance each other out" and imposed concurrent presumptive terms of 4.5 years for possession or use of a dangerous drug and 1.75 years for possession or use of marijuana. Hernandez received 45 days' presentence incarceration credit. ¶9 Hernandez timely appealed his convictions and resulting sentences. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1).
Miranda v. Arizona, 384 U.S. 436 (1966).
Prior to trial, Hernandez's counsel successfully moved for suppression of statements made prior to being read his Miranda rights.
Hernandez was originally represented by the public defender's office, but then obtained private counsel. Private counsel later withdrew, and the public defender's office was again appointed to represent him.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
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DISCUSSION
¶10 Counsel for Hernandez advised this court that after a diligent search of the entire record, he found no arguable question of law. This court reviews Hernandez's convictions and resulting sentences for fundamental error. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). A review of counsel's brief and a full review of the record reveals no reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. ¶11 Although Hernandez was not present at his final trial management conference and trial, the court properly tried Hernandez in absentia. Hernandez admitted he was aware of his trial date and admitted that his failure to appear for trial was a "monumental mistake" he made because he was scared and anxious. Moreover, Hernandez received adequate warning that, should he fail to appear, the trial could proceed in his absence. Hernandez also had been informed of his final trial management conference and trial dates prior to his failure to attend. See State ex rel. Romley v. Superior Court, 183 Ariz. 139, 143-44, 901 P.2d 1169, 1173-74 (App. 1995) (superior court did not abuse its discretion in finding defendant made himself voluntarily absent and therefore waived right to be present despite resetting of trial date, where defendant had notice of original trial date, was warned that failure to appear would lead to trial in absentia and failed to stay in contact with attorney). ¶12 From the record, it appears that the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and Hernandez was represented by counsel at all stages of the proceedings. Moreover, the sentence imposed was within the statutory limits with proper credit given for presentence time served.
CONCLUSION
¶13 Hernandez's convictions and sentences are affirmed. After this decision is filed, counsel's obligation to represent Hernandez in this appeal has ended. Counsel must only inform Hernandez of the status of the appeal and Hernandez's future options, unless counsel identifies an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, 157 (1984). Hernandez shall have thirty days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.
____________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ____________________
MICHAEL J. BROWN, Judge
____________________
DIANE M. JOHNSEN, Judge