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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CINDERELLA KAY SMITH,
Appellant.
No. 1 CA-CR 20-0145
FILED 8-12-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201800899
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
STATE v. SMITH
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Cinderella Smith appeals her convictions and sentences for
two counts of aggravated driving under the influence. Defense counsel
avows she searched the record and found no arguable, non-frivolous
question of law, and filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), asking this court to
search the record for fundamental error. Smith had a chance to file a
supplemental brief but did not. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 One morning in October 2017, an Arizona state trooper
responded to a possible medical emergency on Interstate 40 to find a car
parked on the shoulder. The trooper stopped his patrol car to investigate
and discovered Smith sleeping in the car. The engine was running and in
reverse gear, but the parking brake was engaged. Smith and the car smelled
of alcohol. A near-finished bottle of rum was found in the front passenger
seat. Smith refused a sobriety test. The trooper obtained a search warrant
to test her blood alcohol level, which revealed a blood alcohol level of 0.251.
Smith was charged with two counts of aggravated driving under the
influence.
¶3 A two-day jury trial followed. Smith denied the charges,
claiming she had stopped the car before drinking any alcohol. She was
convicted on both counts. The court suspended imposition of sentence and
placed Smith on probation for four years. As a condition of probation,
Smith was ordered incarcerated in the Arizona Department of Corrections
for four months and also ordered to serve 129 days in the Mohave County
Jail, with credit for 129 days served. The trial court judge said he could not
award any of the 129 days that Smith served in jail as pre-sentence
incarceration credit toward her four-month probation in the Department of
Corrections.
2
STATE v. SMITH
Decision of the Court
¶4 Smith timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031
and -4033(A)(1).
DISCUSSION
¶5 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.
¶6 Smith was present and represented by counsel at all stages of
the proceedings against her, aside from pretrial conferences for which
defense counsel waived her presence. The record reflects the superior court
afforded Smith all her constitutional and statutory rights, and the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
the evidence presented at trial was enough to support the jury’s verdicts,
and Smith’s sentences fall within the range prescribed by law.
¶7 The superior court, however, incorrectly concluded it lacked
discretion to award pre-sentence incarceration credit under A.R.S. § 28-
1383(D), which provides that defendants convicted of aggravated DUI are
“not eligible for probation, pardon, commutation or suspension of sentence
or release on any other basis until the person has served not less than four
months in prison.” See State v. Clements, 161 Ariz. 123, 125-27 (App. 1989)
(holding, under A.R.S. § 28-692.01(F), later incorporated into A.R.S. § 28-
1383, that superior court has discretion to apply presentence incarceration
credit to felony DWI mandatory minimum of “six months in prison.”); see
also State v. Mathieu, 165 Ariz. 20, 25 (App. 1990). The issue is moot,
however, because Smith is no longer incarcerated. See State v. Hartford, 145
Ariz. 403, 405 (App. 1985) (“[W]hen an entire sentence has been served prior
to consideration of that sole issue on appeal, the validity of its imposition is
a moot question.”).
3
STATE v. SMITH
Decision of the Court
CONCLUSION
¶8 Smith’s convictions and sentences are affirmed. Counsel’s
obligations in this appeal will end once Smith is informed of the outcome
and her future options, unless 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, Smith
has 30 days from the date of this decision to seek reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4