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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALEX VILLAGOMEZ, Appellant.
No. 1 CA-CR 20-0544
FILED 1-25-2022
Appeal from the Superior Court in Maricopa County
No. CR2016-159793-001
The Honorable Scott Sebastian Minder, Judge
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. VILLAGOMEZ
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 Alex Villagomez appeals from his convictions and sentences
for aggravated assault and criminal damage, domestic-violence crimes. He
argues that the superior court abused its discretion by admitting hearsay
testimony and committed fundamental error by failing to follow the
requirements of Arizona Rule of Criminal Procedure 17 when accepting the
stipulation to his prior convictions. We find no reversible error and affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 In 2016, Villagomez’s ex-girlfriend, Kourtney,2 was in her car
in a parking lot when she saw Villagomez. She tried to drive away, but he
followed her. Villagomez rammed his vehicle into Kourtney’s car three
times. She escaped, and a nearby police officer approached her. Kourtney
was visibly upset and screamed that Villagomez was trying to run her off
the road and kill her.
¶3 At a jury trial, various witnesses testified, including the police
officer who approached Kourtney at the scene. The officer testified about
Kourtney’s excited utterances. Later, another officer who did not hear
Kourtney’s statements testified about what the first officer told her
Kourtney said. The court admitted this testimony over Villagomez’s
hearsay objection because the first officer had testified about the statements,
and the statements were proffered to show the effect on the listener. After
the trial, the jury found Villagomez guilty as charged.
¶4 The court advised Villagomez before the trial that, should he
be convicted, he would have to appear at a sentencing. If he chose not to
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 To protect the identity of the victim, we refer to her by a pseudonym.
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STATE v. VILLAGOMEZ
Decision of the Court
appear and his absence prevented the court from sentencing him within 90
days from the conviction, he would lose his right to appeal. Villagomez
failed to appear for the last two days of the trial and remained absent until
he was arrested more than two years later. As a result, the court sentenced
Villagomez over two and a half years after his conviction.
¶5 At the sentencing, Villagomez stated that he would stipulate
to his prior convictions. The court conducted a colloquy with Villagomez to
ensure that he knew he had the right to require the State to prove his priors
and that he was voluntarily waiving that right. The court asked Villagomez
whether he had consumed any drugs, alcohol, or medication in the past 24
hours, discussed his rights with his attorney, and if his attorney had
answered all his questions about his rights. The court asked whether he
understood his rights and was willing to waive those rights and admit to
his prior convictions. Villagomez gave satisfactory answers, and the court
found that he had knowingly, intelligently, and voluntarily waived his
right to have the State prove the prior convictions. The court found four
prior historical convictions based on the State’s allegations. The court,
therefore, sentenced Villagomez as a category three repetitive offender to a
presumptive term of 11.25 years for aggravated assault and one day for
criminal damage.
¶6 Villagomez appealed. The State moved to dismiss this appeal
for lack of subject matter jurisdiction, arguing that Villagomez lost his right
to appeal his conviction by preventing the court from sentencing him
within 90 days after conviction.
DISCUSSION
A. This Court Has Jurisdiction Over the Appeal.
¶7 It is uncontested that we have jurisdiction over Villagomez’s
appeal from the sentence, but the State argues that we do not have subject
matter jurisdiction over Villagomez’s appeal from the convictions.
¶8 Under A.R.S. § 13-4033(C), a defendant may not appeal from
a final judgment of conviction “if the defendant’s absence prevents
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
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STATE v. VILLAGOMEZ
Decision of the Court
informed he could forfeit the right to appeal if he voluntarily delays the
sentencing for more than ninety days and the superior court determines the
voluntariness at the time of sentencing. State v. Raffaele, 249 Ariz. 474, 479,
¶ 15 (App. 2020).
¶9 The State argues that Raffaele’s requirement that the State raise
the waiver issue at sentencing is an “inconsistent misinterpretation of
Bolding” and asks us to hold that Raffaele was wrongly decided. We
recognize that the State has raised the same issue and argument in a special
action petition before the Arizona Supreme Court in State v. Hons.
Espinosa/Eckerstrom et al., No. CV-21-0148-SA (filed June 3, 2021). But, as
discussed below, Villagomez has not raised a reversible issue here. We thus
do not address the State’s argument and will proceed with jurisdiction to
address the merits of this appeal under A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A).
B. The Superior Court Did Not Commit Reversible Error by
Admitting Hearsay Testimony.
¶10 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted, and it is generally not admissible. Ariz. R. Evid.
801, 802. But a statement is not hearsay if offered to show the effect on a
listener whose conduct is at issue. State v. Hernandez, 170 Ariz. 301, 306
(App. 1991); State v. Rivers, 190 Ariz. 56, 60 (App. 1997) (testimony allowed
when the listener’s conduct “had been placed directly in issue”). We review
the superior court’s application of the hearsay rules for an abuse of
discretion. State v. Forde, 233 Ariz. 543, 564, ¶ 77 (2014). Hearsay rule
violations are subject to harmless-error analysis. State v. Bocharski, 218 Ariz.
476, 486, ¶ 38 (2008).
¶11 Villagomez contends the superior court abused its discretion
when it allowed a police officer to testify about Kourtney’s statements even
though that officer did not hear Kourtney make the statements and only
knew about them because another officer told her. The court admitted the
testimony over Villagomez’s objection because it was offered to show the
effect on the listening officer. Villagomez correctly argues that the court
erred by accepting this basis because the listening officer’s conduct was
uncontested at trial and thus not at issue. But the State contends “even
assuming that the challenged testimony was hearsay, it was cumulative,”
and thus the error is harmless.
¶12 In a criminal case, erroneously admitted evidence is harmless
if “the reviewing court is satisfied beyond a reasonable doubt that the error
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STATE v. VILLAGOMEZ
Decision of the Court
did not impact the verdict.” Bocharski, 218 Ariz. at 486, ¶ 38 (quoting State
v. Bass, 198 Ariz. 571, 580, ¶ 39 (2000)).
¶13 The inadmissible hearsay evidence was cumulative and did
not impact the verdict. Besides the inadmissible testimony, the State
presented the officer’s testimony who was at the scene and heard Kourtney
scream that Villagomez was trying to run her off the road and kill her.
Another witness also testified about the same statements. And these
statements were correctly admitted as excited utterances. Because the
inadmissible statement was otherwise established by correctly admitted
testimony, we are satisfied it did not impact the verdict, and the error was
harmless. See also Bass, 198 Ariz. at 581, ¶ 40 (“Evidence is cumulative, and
therefore error is cured only where the tainted evidence supports a fact
otherwise established by existing evidence.”).
C. Villagomez Fails to Allege or Prove Any Prejudice from the
Superior Court’s Rule 17 Colloquy.
¶14 Arizona Rule of Criminal Procedure 17.6 requires a court to
follow the procedures of Rule 17 when accepting a defendant’s admission
to a prior-conviction allegation. The court must advise the defendant of his
rights, including the right to be represented by counsel. Ariz. R. Crim. P.
17.2(a)(3). The court must also advise the defendant of the consequences of
admitting to the priors, including the range of possible sentences. Ariz. R.
Crim. P. 17.2(a)(2). And the court must ask whether the defendant’s
admission is being made voluntarily. Ariz. R. Crim. P. 17.1(b), 17.3(a)(2).
¶15 Villagomez contends he is entitled to resentencing because
the court failed to conduct an adequate colloquy under Rule 17. But we
review for fundamental error because he did not object at sentencing. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
¶16 To show fundamental error, a defendant must “show both
that the error was fundamental and that it caused him prejudice.” State v.
Morales, 215 Ariz. 59, 61, ¶ 10 (2007). Thus, an inadequate Rule 17 colloquy
“does not automatically entitle a defendant to a resentencing” because the
defendant “must also establish prejudice.” Id. at 62, ¶ 11. A defendant
generally can prove prejudice by showing that he “would not have
admitted the fact of the prior conviction[s] had the colloquy been
[adequately] given.” See id. But to do so, “the defendant must, at the very
least, assert on appeal that he would not have admitted the prior felony
convictions had a different colloquy taken place.” State v. Young, 230 Ariz.
265, 269, ¶ 11 (App. 2012).
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STATE v. VILLAGOMEZ
Decision of the Court
¶17 Villagomez does not argue that he was not convicted of the
felonies to which he admitted, the State could not have proven the priors,
or he would not have admitted to the prior convictions had more colloquy
taken place. Villagomez has not shown the prejudice required to prevail.
CONCLUSION
¶18 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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