State v. Summers ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JACQUELIN CRISTINE SUMMERS, Appellant.
No. 1 CA-CR 14-0556
FILED 5-17-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-446986-001
The Honorable Charles Donofrio III, Judge Pro Tempore
AFFIRMED AS MODIFIED
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. SUMMERS
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Acting Presiding Judge Andrew W. Gould and Judge Patricia K. Norris
joined.
B R O W N, Chief Judge:
¶1 Jacquelin Cristine Summers appeals her convictions and
sentences for two counts of aggravated driving while under the influence
of intoxicating liquor (“DUI”). Counsel for Summers filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), advising that after searching the record on appeal, she
was unable to find any arguable grounds for reversal. Summers was
granted the opportunity to file a supplemental brief in propria persona, but
she has not done so.
¶2 Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the facts
in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Summers. State v. Guerra, 161 Ariz. 289, 293
(1989). For the following reasons, we affirm Summers’ convictions and
sentences.
¶3 The State charged Summers with two counts of DUI
(impaired to the slightest degree and blood alcohol concentration .08 or
greater), with the charges being aggravated based on Summers’ two prior
DUI convictions within the previous 84 months, in violation of Arizona
Revised Statutes sections 28-1381, -1383. The following evidence was
presented at trial.
¶4 In the early morning hours of March 23, 2013, Phoenix Police
Commander Joseph Knott was travelling on I-10 in an unmarked police car
when a Cadillac sedan passed his vehicle at a high rate of speed. Knott
accelerated to 90 miles per hour but could not gain on the Cadillac. After
exiting I-10 and following the Cadillac on surface streets, Knott activated
the police vehicle’s lights and siren, which caused the Cadillac to brake and
slow down, but not stop. Instead, the Cadillac repeatedly slowed and then
accelerated, engaging in unusual side-to-side movements. Because the
Cadillac had dark-tinted windows, Knott could not discern what was
2
STATE v. SUMMERS
Decision of the Court
occurring in the vehicle and requested the assistance of a back-up unit.
Eventually the Cadillac came to a full stop and Knott parked behind it. He
directed a spotlight at the Cadillac, but still could not see the vehicle’s
interior. He repeatedly yelled for the driver to exit. Eventually, Summers
responded that she was looking for her shoes and a cigarette before exiting
the vehicle. When Summers finally emerged she had an unsteady,
wobbling gait and smelled of alcohol. When questioned, Summers
admitted to drinking earlier in the evening.
¶5 Officer Bohatir responded to the request for assistance. While
Bohatir spoke to Summers, he observed that Summers had bloodshot,
watery eyes and smelled of alcohol. In response to Bohatir’s questioning,
Summers admitted drinking alcohol several hours earlier, and did not
dispute that she was the driver of the vehicle. Bohatir conducted field
sobriety testing on Summers and observed six cues of impairment.
Summers was placed under arrest for DUI and transported to a mobile DUI
van for processing.
¶6 Officer Wearne drew a sample of Summers’ blood. While
conducting the blood draw, Wearne asked Summers several questions in
which she admitted that she had been driving the vehicle, but claimed she
was impaired by fatigue, not alcohol. Summers was then cited and
released. At trial, the State introduced evidence that Summer’s blood
alcohol concentration was 0.173. Before resting its case, the State submitted
the parties’ stipulation that Summers had two prior DUI convictions within
84 months of the current offense.
¶7 Summers admitted at trial she was impaired at the time of the
traffic stop and did not dispute her blood alcohol concentration was 0.173.
Instead, Summers’ testified she had lied to police and was not actually the
driver of the vehicle. She explained that her boyfriend, T.W., was driving
the Cadillac and she was in the passenger seat when Knott activated his
lights and siren. Because T.W. did not have a valid driver’s license and was
afraid their vehicle could be towed if he was stopped, he asked Summers to
switch seats. Consistent with Summer’s testimony, T.W. testified he was
the driver and he and Summers traded places because he did not have a
valid driver’s license.
3
STATE v. SUMMERS
Decision of the Court
¶8 A jury found Summers guilty as charged.1 The trial court
sentenced Summers to three years’ probation after serving concurrent four-
month terms of imprisonment on each count, with 24 days’ presentence
incarceration credit.2 This timely appeal followed.
¶9 We have searched the entire record for reversible error and
have found none. All of the proceedings were conducted in accordance
with Arizona Rules of Criminal Procedure. The record shows that
Summers was present at all pertinent proceedings and was represented by
counsel. Summers had an opportunity to speak before sentencing, and the
sentences imposed were within the statutory limits. Accordingly, we affirm
Summers’ convictions and sentences.
¶10 Upon the filing of this decision, counsel shall inform
Summers of the status of the appeal and her options. Defense counsel has
no further obligations unless, upon review, 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). Summers shall
have thirty days from the date of this decision to proceed, if she so desires,
with a pro per motion for reconsideration or petition for review.
:ama
1 The sentencing minute entry states that Summers waived her right
to a jury trial and entered a plea of guilty. However, the record clearly
reflects that the trial court conducted a jury trial. We therefore modify the
sentencing minute entry to reflect that Summers was convicted by a jury.
2 The sentencing minute entry also states that the date of the present
offense was May 15, 2009 and that the sentence in Count 1 is to be served
concurrent to Count 1. Recognizing that these are clerical errors, we modify
the sentencing minute entry to reflect that date of the offense was March 23,
2013, and the sentence in Count 1 is to be served concurrent to Count 2.
4