State v. Romero ( 2017 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    LEVI JOE ROMERO, Appellant.
    Nos. 1 CA-CR 16-0081; 1 CA-CR 16-0082 (Consolidated)
    FILED 5-9-2017
    Appeal from the Superior Court in Maricopa County
    No. CR2012-134452-001; CR2015-002047-001
    The Honorable David V. Seyer, Commissioner
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Tennie B. Martin
    Counsel for Appellant
    STATE v. ROMERO
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Kenton D. Jones delivered the decision of the Court, in
    which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
    J O N E S, Judge:
    ¶1             Levi Romero appeals his convictions and sentences for one
    count of aggravated driving while under the influence (DUI), one count of
    aggravated driving with a blood alcohol concentration (BAC) of 0.08 or
    greater, and one count of taking another’s identity. After searching the
    entire record, Romero’s defense counsel has identified no arguable question
    of law that is not frivolous. Therefore, in accordance with Anders v.
    California, 
    386 U.S. 738
    (1967), and State v. Leon, 
    104 Ariz. 297
    (1969), defense
    counsel asks this Court to search the record for fundamental error. Romero
    was afforded an opportunity to file a supplemental brief in propria persona
    but did not do so. After reviewing the record, we find no error.
    Accordingly, Romero’s convictions and sentences are affirmed.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2              At approximately 9:30 p.m. on March 18, 2015, Phoenix Police
    Sergeant M.S. saw a maroon Expedition “make a wide U-turn.” Sergeant
    M.S. followed the Expedition and observed it “weaving over the lanes quite
    a bit,” so he turned on the overhead lights of his fully marked police vehicle
    to pull the Expedition over. The Expedition continued for twenty more
    seconds before the driver “pulled into the two-way left-hand turn lane and
    just stopped.”
    ¶3            At 9:45 p.m., Sergeant M.S. contacted the driver, later
    identified as Romero, and saw that he “had slumped over the wheel . . .
    almost like he was sleeping.” Romero had not put his car in park, however,
    and the vehicle lurched forward several feet before reversing
    approximately fifteen feet; Sergeant M.S. was eventually able to put the car
    in park and remove the keys. When Romero exited the vehicle, Sergeant
    1      “We view the facts in the light most favorable to sustaining the
    convictions with all reasonable inferences resolved against the defendant.”
    State v. Harm, 
    236 Ariz. 402
    , 404 n.2, ¶ 2 (App. 2015) (quoting State v.
    Valencia, 
    186 Ariz. 493
    , 495 (App. 1996)).
    2
    STATE v. ROMERO
    Decision of the Court
    M.S. observed him to be lethargic, with a strong odor of alcohol, red and
    watery eyes, and a flushed face. Romero was unable to complete a
    horizontal gaze nystagmus test, and Sergeant M.S. noticed an open bottle
    of malt liquor inside Romero’s vehicle.
    ¶4            Officer K.P. eventually took over the investigation. Officer
    K.P. placed Romero under arrest and took him to a mobile DUI van where
    a qualified phlebotomist drew Romero’s blood at 11:18 p.m. Subsequent
    testing indicated Romero’s BAC was 0.228. It was later discovered
    Romero’s driver’s license had been suspended, and Arizona’s Motor
    Vehicle Department (MVD) had notified him of the suspension multiple
    times prior to his arrest.
    ¶5             The jury found Romero guilty of both aggravated DUI and
    aggravated driving with a BAC of 0.08 or greater. At a separate trial on
    prior felony convictions, the trial court admitted three self-authenticating
    sentencing minute entries indicating Romero had been convicted of: (1)
    first-degree trafficking in stolen property in violation of Arizona Revised
    Statutes (A.R.S.) section 13-2307(B),2 a Class 2 felony, in February 2005, for
    which he was sentenced to 4.5 years’ imprisonment; (2) aggravated assault
    in violation of A.R.S. § 13-1204(A), a Class 3 felony, in February 2005, for
    which he was sentenced to 4 years’ probation; and (3) taking another’s
    identity in violation of A.R.S. § 13-2008(A), a Class 4 felony, in January 2013.
    Romero’s probation officer testified Romero was on probation for taking
    the identity of another on March 18, 2015. The court concluded the State
    had proven beyond a reasonable doubt Romero violated the terms of his
    probation by committing the DUI offenses3 and had three historical prior
    felony convictions.
    ¶6           Romero’s sentencing and disposition hearings were held
    simultaneously. The trial court revoked Romero’s probation and sentenced
    him as a non-dangerous, non-repetitive offender to a mitigated term of 1
    year imprisonment for taking the identity of another. The court then
    sentenced Romero as a non-dangerous, repetitive offender to two
    concurrent, presumptive terms of 10 years’ imprisonment for the DUI
    2     Absent material changes from the relevant date, we cite a statute’s
    current version.
    3     Romero waived his right to a jury trial regarding aggravating
    circumstances.
    3
    STATE v. ROMERO
    Decision of the Court
    offenses, with those sentences to run consecutive to the sentence for taking
    another’s identity.
    ¶7            Romero timely appealed. We have jurisdiction pursuant to
    A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
    DISCUSSION
    ¶8               Our review reveals no fundamental error. See 
    Leon, 104 Ariz. at 300
    (“An exhaustive search of the record has failed to produce any
    prejudicial error.”). A person is guilty of aggravated DUI if, “while the
    person’s driver license or privilege to drive is suspended, canceled, revoked
    or refused,” he “drive[s] or [is] in actual physical control of a vehicle in this
    state . . . [w]hile under the influence of intoxicating liquor . . . [and] impaired
    to the slightest degree.” A.R.S. §§ 28-1381(A)(1), -1383(A)(1). A person is
    guilty of aggravated driving with a BAC of 0.08 or greater if, while the
    person’s driver’s license is suspended, he drives a vehicle and “has an
    alcohol concentration of 0.08 or more within two hours of driving or being
    in actual physical control of the vehicle and the alcohol concentration
    results from alcohol consumed either before or while driving or being in
    actual physical control of the vehicle.” A.R.S. §§ 28-1381(A)(2), -1383(A)(1).
    If the person’s BAC was 0.08 or higher within two hours of driving, “it may
    be presumed that the defendant was under the influence of intoxicating
    liquor.” A.R.S. § 28-1381(G)(3).
    ¶9             Furthermore, “aggravated DUI based on a suspended license
    requires proof that the defendant . . . knew or should have known of the
    suspension,” and “[o]nce the state proves mailing of the notice of
    suspension, the state no longer has the burden to prove receipt of the notice
    or actual knowledge of its contents[;] [t]he burden then shifts to the
    defendant to show that he did not receive the notice.” State v. Cifelli, 
    214 Ariz. 524
    , 527, ¶¶ 12-13 (App. 2007) (citing State v. Williams, 
    144 Ariz. 487
    ,
    489 (1985), then quoting State v. Church, 
    175 Ariz. 104
    , 108 (App. 1983)); see
    also A.R.S. § 28-3318(D), (E). Finally, should “the defendant commit[] an
    additional offense or violate[] a condition [of probation], [the court] may
    revoke probation in accordance with the rules of criminal procedure at any
    time before the expiration or termination of the period of probation.” A.R.S.
    § 13-901(C). “If there is a determination of guilt . . . of a criminal offense by
    a probationer . . . , no [probation] violation hearing shall be required and
    the court shall set the matter down for a disposition hearing at the time set
    for entry of judgment on the criminal offense.” Ariz. R. Crim. P. 27.8(e).
    4
    STATE v. ROMERO
    Decision of the Court
    ¶10          Based upon the record before us, sufficient evidence was
    presented upon which a jury could determine beyond a reasonable doubt
    Romero was guilty of the charged offenses. Romero was operating the
    Expedition when Sergeant M.S. observed erratic driving and pulled him
    over, at which time the sergeant detected a strong odor of alcohol
    emanating from Romero and observed an open bottle of malt liquor in the
    vehicle. Romero had a BAC of 0.228 within two hours of being pulled over.
    Additionally, Romero did not consume any alcohol between the time he
    was pulled over and the time he had his blood drawn. The evidence also
    establishes Romero was on notice that his license was suspended at the
    time. Moreover, Romero’s DUI convictions warranted revocation of his
    probation.
    ¶11            All the proceedings were conducted in compliance with the
    Arizona Rules of Criminal Procedure. So far as the record reveals, Romero
    was represented by counsel at all stages and was present at all critical stages
    of the proceedings, including the entire trial and the verdict. See, e.g., State
    v. Conner, 
    163 Ariz. 97
    , 104 (1990) (right to counsel) (citations omitted); State
    v. Bohn, 
    116 Ariz. 500
    , 503 (1977) (right to be present). The jury was properly
    comprised of eight jurors, and the record shows no evidence of jury
    misconduct. See Ariz. Const. art. 2, § 23; A.R.S. § 21-102(B); Ariz. R. Crim.
    P. 18.1(a). At sentencing, Romero was given an opportunity to speak, and
    the trial court stated on the record the evidence and materials it considered
    and the factors it found in imposing the sentences. See Ariz. R. Crim. P.
    26.9, 26.10. Additionally, the sentences imposed were within the statutory
    limits. See A.R.S. §§ 13-105(22)(b), (c), -702(D), -703(C), (J), -708(C), (E).
    CONCLUSION
    ¶12           Romero’s convictions and sentences are affirmed.
    ¶13            Defense counsel’s obligations pertaining to Romero’s
    representation in this appeal have ended. Defense counsel need do no more
    than inform Romero of the outcome of this appeal and his future options,
    unless, upon review, counsel finds an issue appropriate for submission to
    our supreme court by petition for review. State v. Shattuck, 
    140 Ariz. 582
    ,
    584-85 (1984).
    ¶14            Romero has thirty days from the date of this decision to
    proceed, if he wishes, with an in propria persona petition for review. See Ariz.
    5
    STATE v. ROMERO
    Decision of the Court
    R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Romero
    thirty days from the date of this decision to file an in propria persona motion
    for reconsideration.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6