State v. Roman ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOSE ISRAEL ROMAN, Appellant.
No. 1 CA-CR 22-0041
FILED 10-20-2022
Appeal from the Superior Court in Yuma County
No. S1400CR201901136
The Honorable Brandon S. Kinsey, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Amy M. Thorson
Counsel for Appellee
Yuma County Public Defender’s Office, Yuma
By Robert Trebilcock
Counsel for Appellant
STATE v. ROMAN
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Jose Israel Roman appeals his convictions and sentences for
possession of dangerous drugs and possession of drug paraphernalia. For
the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2019, Yuma police responded to a 911 call about a man
chasing a woman in the parking lot of a long-term care facility. When police
arrived, the reporting party informed that the man was down the street.
Police found Roman, who matched the suspect’s description, standing
outside of a nearby house. When asked, Roman acknowledged he had been
at the care facility, but refused to answer any more questions and refused
to give police his name or date of birth. Police arrested Roman for refusing
to provide his name. A.R.S. § 13-2412(A).
¶3 Officers searched Roman at the police station and found a
plastic baggie of methamphetamine in his shirt pocket. The State charged
Roman with possession of a dangerous drug, a class 4 felony, and
possession of drug paraphernalia, a class 6 felony.
¶4 Before trial, Roman moved to suppress any evidence of drugs
arguing he was unlawfully arrested. The court denied his motion. When
Roman failed to appear for trial, he was tried in absentia and a jury
convicted him as charged.
¶5 Roman was located and arrested nearly three months later.
The court scheduled sentencing for the following month, but when Roman
claimed to have been present for trial, his counsel moved the court for a
mental health evaluation before sentencing. Ariz. R. Crim. P. 26.5. The court
granted the request but ordered a Rule 11 preliminary competency
evaluation rather than the requested Rule 26.5 mental health evaluation.
Less than two weeks later, Roman’s counsel withdrew the request when
Roman “informed counsel he knows he wasn’t at trial and was just bluffing
for the judge.”
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STATE v. ROMAN
Decision of the Court
¶6 The trial court sentenced Roman as a category three repetitive
offender to presumptive terms of 10 years imprisonment on the class 4
felony, and 3.75 years imprisonment on the class 6 felony, to run concurrent
with each other. Roman did not appeal his convictions or sentences.
¶7 Unaware that Roman had withdrawn his evaluation request,
the court-ordered psychologist conducted a Rule 11 competency evaluation
of Roman just 9 days before sentencing and issued her report 4 days after
sentencing. The psychologist opined that Roman was “Not Competent but
Restorable within statutory timeline.”
¶8 Once Roman received the report, he timely moved to vacate
the judgment against him “on the basis of newly discovered material facts”
related to his competency. Ariz. R. Crim. P. 24.2. The trial court denied his
motion. Roman now appeals.
DISCUSSION
¶9 Roman raises multiple issues on appeal, including allegations
that (1) his Rule 8 speedy trial right was violated and (2) the trial court
erred in denying his suppression motion. But Roman did not appeal either
issue within 20 days of sentencing.1 Ariz. Crim. P. 31.2(a)(2)(A). This court,
therefore, lacks jurisdiction to review the merits of his appeal on those
issues. State v. Limon, 229 Ariz. 22, 23, ¶ 3 (App. 2011) (“When a notice of
appeal is untimely, we lack jurisdiction over the appeal.”).
¶10 Rule 24.2, however, affords a defendant up to 60 days after
pronouncement of sentence to move the trial court to vacate the judgment
and sentence on grounds that, inter alia, “newly discovered material facts
exist” that probably would have changed the judgment or sentence. See also
Ariz. R. Crim. P. 32.1(e). Roman timely moved the trial court to vacate his
judgment and sentences, and when the court declined, Roman timely
appealed from that denial. Ariz. R. Crim. P. 24.2(d). We, therefore, have
jurisdiction over Roman’s appeal from the trial court’s denial of his motion
to vacate judgment pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. § 12-120.21(A)(1).
¶11 Roman contends the trial court should have vacated his
judgment and sentences based upon the psychologist’s opinion that Roman
was not competent (though restorable). In the alternative, he contends that
1The trial court incorrectly advised Roman that he had 30 days to appeal
his convictions and sentences. Regardless, Roman failed to file a notice of
appeal within that timeframe.
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STATE v. ROMAN
Decision of the Court
the trial court should have held a Rule 11 competency hearing before
denying his motion.
¶12 We review the denial of a motion to vacate judgment for an
abuse of discretion. State v. Parker, 231 Ariz. 391, 408, ¶ 78 (2013). A motion
to vacate based upon newly discovered evidence is appropriate when:
(1) the newly discovered evidence is material; (2) the evidence
was discovered after trial; (3) due diligence was exercised in
discovering the material facts; (4) the evidence is not merely
cumulative or impeaching, unless the impeachment evidence
substantially undermines testimony that was of critical
significance at trial; and (5) the new evidence, if introduced,
would probably change the verdict or sentence in a new trial.
Id. (citation omitted); Ariz. R. Crim. P. 24.2(a)(2); Ariz. R. Crim. P. 32.1(e).
¶13 The psychologist evaluated Roman in December 2021—5
months after Roman was tried in absentia. The psychologist did not opine
whether Roman was competent (or incompetent) 5 months earlier. Because
the trial court was not presented any newly discovered evidence regarding
Roman’s competency at the time of trial, we cannot say it abused its
discretion in refusing to vacate Roman’s judgment and sentences based
upon the Rule 11 report. See State v. Mendoza-Tapia, 229 Ariz. 224, 231-32,
¶ 25 (App. 2012) (holding a finding of a defendant’s incompetence after
conviction was not reasonable ground to doubt his competency during
trial); see also Bishop v. Superior Court, In & For Pima Cnty., 150 Ariz. 404, 409
(1986) (holding that a trial court is not bound by the opinions of health
experts it appoints and may disagree with their findings because the
“determination of both fact and law is [the court’s]”).
¶14 Lastly, Roman argues that Rule 11.5 and A.R.S. § 13-4510(A)
required the trial court to hold a competency hearing within 30 days of
receipt of the Rule 11 report. However, the purpose of that hearing would
be “to determine a defendant’s competency to stand trial.” § 13-4510(A).
(Emphasis added). Since Roman’s trial had concluded months before the
court ordered or received the Rule 11 report—saying nothing of the fact that
Roman withdrew his mental health evaluation request altogether—the
court did not abuse its discretion in refusing to hold the hearing. On this
record, Roman has shown no error.
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STATE v. ROMAN
Decision of the Court
CONCLUSION
¶15 For the foregoing reasons, we affirm the trial court’s denial of
Roman’s motion to vacate judgment. Roman’s convictions and sentences
are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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