State v. Sanders ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ERIC WARREN SANDERS, Appellant.
No. 1 CA-CR 18-0073
FILED 1-29-2019
Appeal from the Superior Court in Maricopa County
No. CR 2016-002901-001
The Honorable Lauren R. Guyton, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos D. Carrion
Counsel for Appellant
STATE v. SANDERS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
C A M P B E L L, Judge:
¶1 Eric Sanders timely appeals from his convictions and
sentences for seven counts of taking the identity of another, each a class four
felony, and seven counts of theft of a credit card, each a class five felony.
After searching the record on appeal and finding no arguable question of
law that was not frivolous, Sanders’ counsel 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 reversible error. This court
granted counsel’s motion to allow Sanders to file a pro per supplemental
brief, but Sanders did not do so. After reviewing the entire record, we find
no reversible error and, therefore, affirm Sanders’ convictions and
sentences.
BACKGROUND1
¶2 In June 2015, Postal Inspector Palmeri received a report that
residential mailboxes at a Tempe apartment complex had been broken into.
As part of his investigation, Palmeri searched the post office fraud database
system to ascertain if there were any complaints associated with that
address. Palmeri found an online complaint submitted by Barclaycard
associated with the address of the compromised mailboxes. Palmeri
contacted Barclaycard to inquire about the facts underlying the complaint.
He learned that a resident of the apartment complex ordered a Barclaycard
credit card online but did not receive it in the mail. The resident contacted
Barclaycard and discovered unauthorized fraudulent transactions on his
credit card, leading to Barclaycard filing the online complaint with the post
office. Barclaycard provided Palmeri a list of the unauthorized transactions.
¶3 Included among the unauthorized transactions were 14
transactions from a Safeway store located in Tempe, Arizona that spanned
1 We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Sanders. State v.
Guerra, 161 Ariz. 289, 293 (1989).
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STATE v. SANDERS
Decision of the Court
a seven-day period. Palmeri requested information from Safeway
regarding the unauthorized transactions on the resident’s credit card. Using
the store number where the card was used, the credit card number, and the
date, time, and dollar amounts of the transactions, a Safeway employee
provided Palmeri with video surveillance and still images from the store
and the log for those transactions. The employee also provided documents
showing that the Safeway loyalty club card that was used in conjunction
with the stolen credit card was registered to Sanders. The video surveillance
showed Sanders making purchases with the stolen credit card and exiting
the store with bags of groceries.
¶4 Sanders was charged with seven counts of taking the identity
of another and seven counts of theft of a credit card. Sanders was out of
custody on his own recognizance and failed to appear at the final trial
management conference. The court issued a bench warrant for his arrest.
Sanders also failed to appear for trial. His counsel informed the court that
he had not responded to her calls and she did not know where he was. The
court noted that at the comprehensive pretrial conference, Sanders was
informed by the judge that if he failed to appear, the trial could proceed in
his absence. The court found that Sanders voluntarily absented himself and
proceeded with the trial in his absence. The jury unanimously found
Sanders guilty on all 14 counts. The state alleged three aggravating
circumstances. The jury found only one aggravating circumstance beyond
a reasonable doubt for all 14 counts: that Sanders committed the offenses as
consideration for the receipt, or in the expectation of the receipt, of anything
of pecuniary value.
¶5 Sanders was arrested in Mississippi on November 22, 2017
and appeared for sentencing on January 24, 2018. The prosecution and
defense agreed that Sanders would be sentenced as a Category 2 repetitive
offender, based on the multiple dates of offenses for counts 5 through 14.
Sanders received the presumptive sentence for each count, to be served
concurrently: 2.5 years for counts 1 and 3; 1.5 years for counts 2 and 4; 4.5
years for counts 5, 7, 9, 11, and 13; and 2.25 years for counts 6, 8, 10, 12, and
14. The court awarded 63 days of presentence incarceration credit.2
2 Sanders should have received only 62 days of presentence
incarceration credit. The superior court’s error is in Sanders’ favor and is,
therefore, not fundamental because it did not prejudice him. See State v.
Escalante, 245 Ariz. 135, 141, ¶ 21 (2018) (explaining that fundamental error
is error that prejudices the defendant and goes to the foundation of the case,
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STATE v. SANDERS
Decision of the Court
DISCUSSION
¶6 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. We conclude the court did not err by
trying Sanders in absentia. Under Arizona Rule of Criminal Procedure 9.1,
“a defendant may waive the right to be present at any proceeding other
than sentencing by voluntarily absenting himself or herself from it,” and
“[t]he court may infer that an absence is voluntary if the defendant had
personal notice of the time of the proceeding, the right to be present at it,
and a warning that the proceeding would go forward in his or her absence
should he or she fail to appear.” Ariz. R. Crim. P. (2017). Sanders’ final
release order, signed by him, stated that if he failed to appear, proceedings
could go forward in his absence. Additionally, at the comprehensive
pretrial conference, the judge informed Sanders that if he failed to appear
for trial, the State had the option of proceeding with the trial without him
being present. Sanders received a fair trial. He was represented by counsel
at all stages of the proceedings.
¶7 The evidence presented at trial was substantial and supports
the verdict. The jury was properly comprised of 12 members and the court
properly instructed the jury on the elements of the charges, Sanders’
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The court also instructed the jury not to consider
Sanders’ absence from the trial. The superior court received and considered
a presentence report, Sanders was given an opportunity to speak at
sentencing, and his sentences were within the range of acceptable sentences
for his offense.
CONCLUSION
¶8 We affirm Sanders’ convictions and sentences. Unless defense
counsel finds an issue that may be appropriately submitted to the Arizona
Supreme Court, his obligations are fulfilled once he informs Sanders of the
outcome of this appeal and his future options. See State v. Shattuck, 140 Ariz.
takes away a right essential to a defense, or is so egregious that the person
cannot possibly have received a fair trial).
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STATE v. SANDERS
Decision of the Court
582, 584-85 (1984). Sanders has 30 days from the date of this decision to
proceed, if he wishes, with a pro per motion for reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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