Opinion
No. 1 CA-CR 13-0689
07-17-2014
STATE OF ARIZONA, Appellee, v. LORI SUE KOECKES, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Damon A. Rossi, Attorney at Law, Prescott By Damon A. Rossi Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. V1300CR201280153
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Damon A. Rossi, Attorney at Law, Prescott
By Damon A. Rossi
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined. NORRIS, Judge:
¶1 Lori Sue Koeckes timely appeals from her convictions and imposition of probation for criminal damage, a class 6 designated felony; two counts of aggravated driving under the influence with a minor in the vehicle, both class 6 undesignated felonies; and two counts of vehicular endangerment, both domestic violence offenses and class 1 misdemeanors. After searching the record on appeal and finding no arguable question of law that was not frivolous, Koeckes's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Koeckes to file a supplemental brief in propria persona, but she did not do so. After reviewing the entire record, we find no fundamental error and, therefore, affirm Koeckes's convictions and imposition of probation.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Koeckes. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 On March 30, 2012, at approximately 5:00 p.m., Koeckes crashed a car into B.B.'s garage, causing over $1,000 in damage to the garage door and wall. Her two children, T.K. and N.K., both under the age of 15, were in the car at the time. B.B. called the police, and Officer G. arrived at approximately 6:00 p.m. Officer G. suspected Koeckes had been drinking and initiated a DUI investigation. Based on his investigation, he arrested Koeckes and advised her of her Miranda rights. Officer G. administered alcohol breath tests at 7:26 and 7:33 p.m., and the tests established Koeckes had a blood alcohol concentration ("BAC") of 0.27. Blood drawn from Koeckes at 10:48 p.m. was later tested and indicated a BAC of 0.20. By information, the county attorney charged Koeckes withm six counts of aggravated driving or actual physical control while under the influence, all class 6 felonies; one count of criminal damage, a class 4 felony; and two counts of endangerment with a substantial risk of imminent death, each a class 6 felony.
¶3 Koeckes waived her right to a jury trial. At the subsequent bench trial, T.K. testified that on March 30, 2012, Koeckes drove from B.B.'s home to a veterinary office and back. T.K. did not see Koeckes drink anything before leaving the home or observe any signs during the drive to the veterinary office suggesting Koeckes was intoxicated. On the drive home, however, Koeckes "swerved a little bit towards the right side . . . three or four" times and then had trouble shifting the car into reverse after hitting the garage door. Koeckes had "kind of a sour smell to her breath" and "kind of slurred her words." Koeckes's eyes were "watery and red." T.K. agreed she was concerned about her and N.K.'s safety "[b]ecause [Koeckes] was weaving all over, and I didn't want us to go off the road."
¶4 A veterinary office employee testified she spoke with Koeckes at the veterinary office and observed no signs Koeckes had been drinking. Koeckes testified she did not drink any alcohol until after hitting the garage. She "chugged some rum" because she was worried B.B. would be angry about the damage to his car and home. She "took seven swallows out of the bottle" and then "drank three more."
¶5 The court found Koeckes not guilty on four of the aggravated DUI charges (driving with a BAC of .08 or more and driving with a BAC of .20 or more) because it could not "rule out possible consumption after the accident, which would have affected [Koeckes]'s alcohol concentration." It convicted her, however, of criminal damage, the two remaining aggravated DUI charges (driving under the influence while impaired to the slightest degree with a minor in the vehicle), and of two counts of vehicular endangerment, each a lesser included offense of reckless endangerment. The court suspended imposition of sentence on each charge and placed Koeckes on supervised probation for four years with a jail term of 100 days with two days of presentence incarceration credit. The court also ordered Koeckes to pay restitution and various fines.
DISCUSSION
¶6 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Koeckes received a fair trial. She was represented by counsel at all stages of the proceedings and was present at all critical stages.
¶7 Koeckes knowingly, voluntarily, and intelligently waived her right to a jury trial. See Ariz. R. Crim. P. 18.1(b); State v. Innes, 227 Ariz. 545, 546, ¶ 5, 260 P.3d 1110, 1111 (App. 2011). The evidence presented at the bench trial was substantial and supports the verdicts. The superior court received and considered a presentence report, Koeckes was given an opportunity to speak at sentencing and did so, and her sentence was within the range of acceptable sentences for her offenses. See Ariz. Rev. Stat. ("A.R.S.") § 13-901(A), (F) (Supp. 2013); A.R.S. § 13-902(B)(2) (Supp. 2013).
¶8 We decline to order briefing and affirm Koeckes's convictions and imposition of probation.
CONCLUSION
¶9 After the filing of this decision, defense counsel's obligations pertaining to Koeckes's representation in this appeal have ended. Defense counsel need do no more than inform Koeckes of the outcome of this appeal and her future options unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶10 Koeckes has 30 days from the date of this decision to proceed, if she wishes, with an in propria persona petition for review. On the court's own motion, we also grant Koeckes 30 days from the date of this decision to file an in propria persona motion for reconsideration.