State v. Leyva Rabago ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KARLA STEPHANIE LEYVA RABAGO,
Appellant.
No. 1 CA-CR 20-0061
FILED 3-16-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-115451-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. LEYVA RABAGO
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 Karla Stephanie Leyva Rabago appeals her convictions and
sentences for two counts of aggravated driving while under the influence
of intoxicating liquor or drugs. After reviewing the record, Rabago’s
counsel filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), and State v. Leon, 104 Ariz. 297 (1969), asking us to search the record
for fundamental error. Rabago had a chance to file a supplemental brief but
did not. We affirm Rabago’s convictions and sentences after reviewing the
record.
FACTS AND PROCEDURAL BACKGROUND
¶2 Early one morning in April 2019, a Phoenix police officer
observed Rabago driving against the flow of traffic and conducted a traffic
stop. Rabago admitted she drank “a couple beers.” The officer saw that
Rabago’s eyes were bloodshot and he smelled alcohol coming from the car’s
interior. Rabago then failed a field-sobriety test. Breathalyzer tests
recorded Rabago’s blood alcohol levels at .204 and .191.
¶3 The State charged Rabago with one count of aggravated
driving while under the influence of intoxicating liquor or drugs and
impaired to the slightest degree, and one count of aggravated driving while
under the influence of intoxicating liquor or drugs and with a blood alcohol
level over .08. The State alleged no prior convictions. Rabago pleaded not
guilty on both charges. After a three-day trial, the jury convicted Rabago
of both counts. The superior court sentenced Rabago to 4 months in prison
and 2.5 years supervised probation, giving her 217 days’ presentence credit.
Rabago timely appealed. We have jurisdiction. See Ariz. Const., art. 6, sec.
9; A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶4 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300.
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STATE v. LEYVA RABAGO
Decision of the Court
¶5 Rabago’s counsel contends the superior court erroneously
imposed a $4 Peace Officer Training Equipment Fund (“POTEF”)
assessment in Rabago’s sentencing order because the court imposed no
POTEF assessment in its oral pronouncement of sentencing. We agree. The
written sentencing order must be corrected to strike the assessment. See
State v. Ovante, 231 Ariz. 180, 188, ¶¶ 38-39 (2013).
¶6 We otherwise find no error. Rabago was present at all stages
of the proceedings against her, except for a portion of the first day of trial
when her presence was waived. She was represented by counsel at all
critical stages. The record reflects that the superior court afforded Rabago
all her constitutional and statutory rights and that the proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
The court conducted appropriate pretrial hearings, and the evidence
presented at trial and summarized above was enough to support the jury’s
verdict. Rabago’s sentence falls within the range prescribed by law.
CONCLUSION
¶7 We modify Rabago’s sentence by vacating the $4 POTEF
assessment from Rabago’s written sentencing order and affirm her
convictions and sentences as modified. Counsel’s obligations in this appeal
will end once Rabago 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, Rabago has 30 days from the
date of this decision to proceed with a pro se motion for reconsideration or
petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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