State v. Hobbs ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARLON LAWRENCE HOBBS, Appellant.
No. 1 CA-CR 16-0573
FILED 6-22-2017
Appeal from the Superior Court in Maricopa County
No. CR2015-112213-001
The Honorable Mark H. Brain, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. HOBBS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.
J O H N S E N, Judge:
¶1 Marlon Lawrence Hobbs timely filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), following his conviction of two counts of aggravated
driving while under the influence of intoxicating liquor, each a Class 4
felony. Hobbs's counsel has searched the record on appeal and found no
arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S.
259 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 1999).
Hobbs was given the opportunity to file a supplemental brief but did not
do so. Counsel now asks this court to search the record for fundamental
error. After reviewing the entire record, we affirm Hobbs's convictions and
sentences as modified.
FACTS AND PROCEDURAL BACKGROUND
¶2 A Phoenix police officer stopped a vehicle after he saw it
speeding and drifting out of its lane.1 At trial, the officer identified the
driver as Hobbs, and testified Hobbs displayed slurred speech, watery
bloodshot eyes and other signs of driving under the influence. A blood test
revealed Hobbs's blood alcohol concentration was 0.218.
¶3 A jury found Hobbs guilty of two counts of aggravated
driving while under the influence of intoxicating liquor, in violation of
Arizona Revised Statutes ("A.R.S.") sections 28-1381(A)(1) (2017),
-1381(A)(2), -1383(A)(1) (2017).2 The jury also found the aggravating
circumstance of committing the offense while on release for a pending
felony offense. After finding two historical prior felony convictions, the
superior court sentenced Hobbs to a term of 12 years' incarceration on each
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Hobbs. State
v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. HOBBS
Decision of the Court
charge, to be served concurrently. The 12-year terms included
presumptive terms of 10 years plus two additional years because the
offenses were committed while on release, pursuant to A.R.S. §§ 13-701(C)
(2017) and -703(J) (2017). The court granted Hobbs 523 days of presentence
incarceration credit.
¶4 Hobbs timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2017), 13-4031 (2017) and -4033 (2017).
DISCUSSION
¶5 The record reflects Hobbs received a fair trial. Hobbs was
represented by counsel at all stages of the proceeding except during a
period in which he waived counsel.3 Hobbs was present at all critical
stages; his lawyer waived Hobbs's presence at a pretrial conference at
which the court excluded 69 days for purposes of Arizona Rule of Criminal
Procedure 8. Later, representing himself, Hobbs filed a "Motion to
Redetermine Last Day and Dismiss for violation of Rule 8," asserting he had
been coerced into waiving the 69 days because he was not present at that
pretrial conference and had not waived his right to be present. Hobbs also
claimed he had been coerced into waiving time on another occasion, but
did not elaborate. The superior court may rely on counsel's waiver of a
defendant's presence; "personal waiver by the defendant is not required."
State v. Rose, 231 Ariz. 500, 504, ¶ 9 (2013) (quoting State v. Canion, 199 Ariz.
227, 234, ¶ 26 (App. 2000)). The superior court did not err in denying
Hobbs's motion because Hobbs failed to show that he was prejudiced by
his absence. See State v. Dann, 205 Ariz. 557, 575, ¶ 73 (2003).
¶6 The court held appropriate pretrial hearings. It did not
conduct a voluntariness hearing; however, the record did not suggest a
question about the voluntariness of Hobbs's statements to police. See State
v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275 (1974).
¶7 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charges, the State's burden of proof and the necessity of a unanimous
3 Hobbs filed a motion for waiver of counsel, which the court granted
after finding that he made the decision to represent himself knowingly,
willingly and voluntarily. At trial, Hobbs asked to revoke his prior waiver
of counsel, and the court re-appointed counsel for him.
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STATE v. HOBBS
Decision of the Court
verdict. The jury returned a unanimous verdict, which was confirmed by
juror polling. The court considered sentencing recommendations from the
State and from the defense and imposed legal sentences for the crimes of
which Hobbs was convicted.
CONCLUSION
¶8 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. We affirm the convictions and the
resulting sentences, but modify the judgment to state that the conviction on
count two was for violating A.R.S. § 28-1381(A)(2) rather than A.R.S. § 28-
1381(A)(1).
¶9 Defense counsel's obligations pertaining to Hobbs's
representation in this appeal have ended. Counsel need do no more than
inform Hobbs of the outcome of this appeal and his 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 (1984). On the court's own motion, Hobbs has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Hobbs has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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