State v. Nevarez-Laboy ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JULIO ENRIQUE NEVAREZ-LABOY, Appellant.
No. 1 CA-CR 20-0291
FILED 4-20-2021
Appeal from the Superior Court in Maricopa County
No. CR 2018-162236-001
The Honorable Susanna C. Pineda, Judge
AFFRIMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Bain & Lauritano, Glendale
By Amy E. Bain
Counsel for Appellant
STATE v. NEVAREZ-LABOY
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Julio Enrique Nevarez-LaBoy (“Defendant”) was
given the opportunity to file a supplemental brief but did not do so. Our
obligation is to review the entire record for reversible error, State v. Clark,
196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the evidence in the light most
favorable to sustaining the conviction and resolving all reasonable
inferences against Defendant, State v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 On December 23, 2018, an asset protection manager (“the
manager”) for a large department store was monitoring surveillance
footage when he noticed Defendant leaving the store with two tool sets.
The manager found this unusual because the item is expensive and people
typically do not buy two at the same time. Defendant then re-entered the
store, and the manager started to follow him in person. The manager
observed Defendant carrying two more tool sets out of the store, one at a
time, and did not pay for either one. Security footage showed Defendant
exiting the store with a total of eight tool sets and placing them in his van.
¶3 Through surveillance cameras, the manager observed
Defendant change his shirt, relocate his vehicle, and then enter the store.
Police officers arrived and waited by Defendant’s van until he exited the
store carrying a ninth tool set.
¶4 The officers arrested Defendant at the scene and read him his
Miranda rights. After obtaining a search warrant, the officers searched
Defendant’s van and recovered eight tool sets (in addition to the ninth tool
set Defendant was carrying when arrested) and over 30 pairs of jeans.
When questioned, Defendant told police he had made a mistake and he did
not have a receipt. Defendant later admitted to police he obtained the jeans
from the same department store on the day he was arrested. Defendant
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STATE v. NEVAREZ-LABOY
Decision of the Court
explained that he planned to sell the tool sets and jeans, and he chose that
store because he thought it would be staffed with fewer employees.
¶5 After the incident, the manager reviewed more surveillance
footage. He saw Defendant enter the store and leave with two large plastic
bags that appeared to be full, and then repeated the same conduct. The
manager confirmed there were no sales on any of the jeans Defendant had
taken from the store. The manager also testified that the tools cost $459.99
per set, and the pants were $59.50 each for 28 pairs of jeans, and $69.50 each
for the other 5 pairs of jeans.
¶6 The State charged Defendant as follows: (1) one count of theft,
with property valued at $4,000 or more but less than $25,000 in violation of
A.R.S. § 13-1802, a class 3 felony, and (2) one count of organized retail theft
in violation of A.R.S. § 13-1819, a class 4 felony. After failing to appear at a
pretrial conference, the court issued a warrant for Defendant’s arrest, and
the trial was held in absentia. The jury convicted Defendant on both counts.
¶7 Around March 2020, Defendant was caught with narcotics,
taken into custody, and pled guilty on the new drug possession charge. The
superior court sentenced Defendant to 3.5 years on the theft charge and 2.5
years on the organized retail theft charge. Those two convictions were then
considered prior historical felony convictions for purposes of sentencing on
the drug possession charge, and the court sentenced Defendant to the
presumptive term of 10 years. The court ordered each of the sentences to
run concurrently, with credit for 58 days of presentence incarceration.
Defendant timely appealed.
¶8 After a thorough review of the record, we find no reversible
error, Clark, 196 Ariz. at 541, ¶ 50, except as noted, infra ¶ 9. Defendant was
not present for the trial; however, his absence from trial was voluntary, as
he was properly advised of the need to appear at all scheduled hearings
and warned of the consequences if he failed to do so. See Ariz. R. Crim. P.
9.1. (stating that a “defendant’s voluntary absence waives the right to be
present at any proceeding,” and “[t]he court may infer that a defendant’s
absence is voluntary if the defendant had actual notice of the date and time
of the proceeding, notice of the right to be present, and notice that the
proceeding would go forward in the defendant’s absence.”).
¶9 Defendant was represented by counsel at all critical stages of
the proceedings against him. The evidence presented supports the
convictions, and the sentences imposed fall within the range permitted by
law. As far as the record reveals, these proceedings were conducted in
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compliance with the Arizona Rules of Criminal Procedure and the
Defendant’s constitutional and statutory rights. Accordingly, we affirm
Defendant’s convictions and sentences, except we vacate the portion of the
sentencing order requiring Defendant to pay the cost of DNA testing. See
State v. Reyes, 232 Ariz. 468, 472, ¶ 14 (App. 2013) (finding no statutory basis
to order a defendant to pay DNA testing cost).
¶10 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, her obligations are
fulfilled once she informs Defendant of the outcome of this appeal and his
future options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Defendant
has 30 days from the date of this decision to proceed, if he wishes, with a
pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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