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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTIAN ALEJANDRO MENDOZA, Appellant.
No. 1 CA-CR 21-0137
FILED 3-15-2022
Appeal from the Superior Court in Maricopa County
No. CR2017-124511-001
The Honorable Laura J. Giaquinto, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Cory Engle
Counsel for Appellant
STATE v. MENDOZA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
M c M U R D I E, Judge:
¶1 Christian Alejandro Mendoza appeals from his convictions
and sentences for aggravated driving while under the influence of
intoxicating liquor (“DUI”). Mendoza’s counsel filed a brief per Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that he found no arguable question of law that was not frivolous
after a diligent search of the record. Mendoza was allowed to file a
supplemental brief but did not do so. Counsel asks this court to search the
record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v.
Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we
affirm Mendoza’s convictions and sentences.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Law enforcement responded to a 9-1-1 call reporting a drunk
driver on I-17 in Maricopa County. A Phoenix police officer found the
suspect vehicle, witnessed it erratically veer into another traffic lane, and
initiated a stop. Shortly after that, Trooper Jake Lough of the Arizona
Department of Public Safety (“DPS”) arrived to investigate. Mendoza was
the vehicle’s driver and sole occupant.
¶3 Lough observed that Mendoza swayed slightly and smelled
of alcohol. Lough obtained Mendoza’s consent to perform field sobriety
tests. Based on his observations, Lough arrested Mendoza and transported
him to a DPS facility, where he got Mendoza’s consent for a breath test.
Mendoza registered a blood alcohol concentration of 0.109 and 0.113 in
successive tests. A search of Motor Vehicle Division (“MVD”) records using
Mendoza’s identification card revealed that his driving privilege was
revoked.
1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
2
STATE v. MENDOZA
Decision of the Court
¶4 The State charged Mendoza with two counts of aggravated
DUI, class 4 felonies under A.R.S. § 28-1383: the first for impairment to the
slightest degree under A.R.S. § 28-1381(A)(1), and the second for alcohol
concentration of 0.08 or more under A.R.S. § 28-1381(A)(2). He rejected a
plea offer after the court advised him according to State v. Donald, 198 Ariz.
406, 414, ¶ 14 (App. 2000). The State alleged Mendoza had one prior
conviction for aggravated DUI.
¶5 At a jury trial, three witnesses testified: the officer that
initiated the traffic stop, Lough, and an MVD records custodian. The State
presented evidence that Mendoza drove in Arizona while impaired from
intoxicating liquor and having a blood alcohol concentration of greater than
0.08 while knowing his driving privilege was revoked. Following the State’s
case, Mendoza moved for a judgment of acquittal under Arizona Rule of
Criminal Procedure 20, which the court denied. The jury found Mendoza
guilty on both counts.
¶6 The superior court advised Mendoza before the trial that,
should he be convicted, he would have to appear at sentencing. If he chose
not to appear and his absence prevented the court from sentencing him
within 90 days from the conviction, he would lose his right to appeal.
Mendoza failed to appear for the last day of the trial and remained absent
until he was arrested around 18 months later. After granting multiple
continuances, the court sentenced Mendoza.
¶7 At the sentencing, the State presented evidence that Mendoza
was convicted in Yavapai County in 2006 for aggravated DUI. The superior
court found the State proved the prior conviction by clear and convincing
evidence, making Mendoza a category two repetitive offender under A.R.S.
§ 13-703. The superior court sentenced Mendoza to concurrent presumptive
terms of 4.5 years for each aggravated DUI conviction, with credit for 346
days’ time served.
¶8 Mendoza appealed.
DISCUSSION
A. This Court Has Jurisdiction Over the Appeal.
¶9 We have jurisdiction over Mendoza’s appeal from his
convictions and sentences.
¶10 Under A.R.S. § 13-4033(C), a defendant may not appeal from
a final judgment of conviction “if the defendant’s absence prevents
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STATE v. MENDOZA
Decision of the Court
sentencing from occurring within ninety days after conviction and the
defendant fails to prove by clear and convincing evidence at the time of
sentencing that the absence was involuntary.” But because the right to
appeal is constitutional, a defendant only waives his right to appeal under
the statute if his “voluntary delay of sentencing can be regarded
as . . . knowing, voluntary, and intelligent.” State v. Bolding, 227 Ariz. 82, 88,
¶ 20 (App. 2011). Such an inference can be drawn only if a defendant has
been told he could forfeit the right to appeal if he voluntarily delays the
sentencing for more than 90 days. The superior court determines the
voluntariness at the time of sentencing. State v. Raffaele, 249 Ariz. 474, 479,
¶ 15 (App. 2020).
¶11 The record shows that the superior court did not determine
the voluntariness of Mendoza’s delay at the time of sentencing. Because
such a finding is absent, we do not infer that Mendoza waived his right to
appeal. We recognize that the Arizona Supreme Court may soon
supplement our understanding of Bolding and Raffaele, as argued in State v.
Hons. Brearcliffe/Vasquez et al., No. CV-21-0174-SA (argued Feb. 10, 2022).
But until then, and because this appeal raises no reversible issue, we
address the appeal on the merits under A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A).
B. This Appeal Raises No Reversible Issue.
¶12 We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.
¶13 Counsel represented Mendoza at all stages of the proceedings
against him. Mendoza was present at all stages except for certain trial
periods, including the verdict, for which Mendoza waived his presence.
The record reflects the superior court afforded Mendoza his constitutional
and statutory rights and conducted the proceedings following the Arizona
Rules of Criminal Procedure. The court held appropriate pretrial hearings,
and the evidence presented at trial and summarized above was enough to
support the jury’s verdicts. Mendoza’s sentences fall within the range
prescribed by law, with proper credit given for presentence incarceration.
CONCLUSION
¶14 Mendoza’s convictions and sentences are affirmed. After the
filing of this decision, the defense counsel’s obligations about Mendoza’s
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STATE v. MENDOZA
Decision of the Court
representation in this appeal will end after informing him of the outcome
of this appeal and his future options, unless counsel’s review reveals an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
AMY M. WOOD • Clerk of the Court
FILED: AA
5