State v. Romero

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LEVI JOE ROMERO, Appellant.
Nos. 1 CA-CR 16-0081; 1 CA-CR 16-0082 (Consolidated)
FILED 5-9-2017
Appeal from the Superior Court in Maricopa County
No. CR2012-134452-001; CR2015-002047-001
The Honorable David V. Seyer, Commissioner
AFFIRMED
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. ROMERO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
J O N E S, Judge:
¶1 Levi Romero appeals his convictions and sentences for one
count of aggravated driving while under the influence (DUI), one count of
aggravated driving with a blood alcohol concentration (BAC) of 0.08 or
greater, and one count of taking another’s identity. After searching the
entire record, Romero’s defense counsel has identified no arguable question
of law that is not frivolous. Therefore, in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense
counsel asks this Court to search the record for fundamental error. Romero
was afforded an opportunity to file a supplemental brief in propria persona
but did not do so. After reviewing the record, we find no error.
Accordingly, Romero’s convictions and sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 At approximately 9:30 p.m. on March 18, 2015, Phoenix Police
Sergeant M.S. saw a maroon Expedition “make a wide U-turn.” Sergeant
M.S. followed the Expedition and observed it “weaving over the lanes quite
a bit,” so he turned on the overhead lights of his fully marked police vehicle
to pull the Expedition over. The Expedition continued for twenty more
seconds before the driver “pulled into the two-way left-hand turn lane and
just stopped.”
¶3 At 9:45 p.m., Sergeant M.S. contacted the driver, later
identified as Romero, and saw that he “had slumped over the wheel . . .
almost like he was sleeping.” Romero had not put his car in park, however,
and the vehicle lurched forward several feet before reversing
approximately fifteen feet; Sergeant M.S. was eventually able to put the car
in park and remove the keys. When Romero exited the vehicle, Sergeant
1 “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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STATE v. ROMERO
Decision of the Court
M.S. observed him to be lethargic, with a strong odor of alcohol, red and
watery eyes, and a flushed face. Romero was unable to complete a
horizontal gaze nystagmus test, and Sergeant M.S. noticed an open bottle
of malt liquor inside Romero’s vehicle.
¶4 Officer K.P. eventually took over the investigation. Officer
K.P. placed Romero under arrest and took him to a mobile DUI van where
a qualified phlebotomist drew Romero’s blood at 11:18 p.m. Subsequent
testing indicated Romero’s BAC was 0.228. It was later discovered
Romero’s driver’s license had been suspended, and Arizona’s Motor
Vehicle Department (MVD) had notified him of the suspension multiple
times prior to his arrest.
¶5 The jury found Romero guilty of both aggravated DUI and
aggravated driving with a BAC of 0.08 or greater. At a separate trial on
prior felony convictions, the trial court admitted three self-authenticating
sentencing minute entries indicating Romero had been convicted of: (1)
first-degree trafficking in stolen property in violation of Arizona Revised
Statutes (A.R.S.) section 13-2307(B),2 a Class 2 felony, in February 2005, for
which he was sentenced to 4.5 years’ imprisonment; (2) aggravated assault
in violation of A.R.S. § 13-1204(A), a Class 3 felony, in February 2005, for
which he was sentenced to 4 years’ probation; and (3) taking another’s
identity in violation of A.R.S. § 13-2008(A), a Class 4 felony, in January 2013.
Romero’s probation officer testified Romero was on probation for taking
the identity of another on March 18, 2015. The court concluded the State
had proven beyond a reasonable doubt Romero violated the terms of his
probation by committing the DUI offenses3 and had three historical prior
felony convictions.
¶6 Romero’s sentencing and disposition hearings were held
simultaneously. The trial court revoked Romero’s probation and sentenced
him as a non-dangerous, non-repetitive offender to a mitigated term of 1
year imprisonment for taking the identity of another. The court then
sentenced Romero as a non-dangerous, repetitive offender to two
concurrent, presumptive terms of 10 years’ imprisonment for the DUI
2 Absent material changes from the relevant date, we cite a statute’s
current version.
3 Romero waived his right to a jury trial regarding aggravating
circumstances.
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STATE v. ROMERO
Decision of the Court
offenses, with those sentences to run consecutive to the sentence for taking
another’s identity.
¶7 Romero timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶8 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person is guilty of aggravated DUI if, “while the
person’s driver license or privilege to drive is suspended, canceled, revoked
or refused,” he “drive[s] or [is] in actual physical control of a vehicle in this
state . . . [w]hile under the influence of intoxicating liquor . . . [and] impaired
to the slightest degree.” A.R.S. §§ 28-1381(A)(1), -1383(A)(1). A person is
guilty of aggravated driving with a BAC of 0.08 or greater if, while the
person’s driver’s license is suspended, he drives a vehicle and “has an
alcohol concentration of 0.08 or more within two hours of driving or being
in actual physical control of the vehicle and the alcohol concentration
results from alcohol consumed either before or while driving or being in
actual physical control of the vehicle.” A.R.S. §§ 28-1381(A)(2), -1383(A)(1).
If the person’s BAC was 0.08 or higher within two hours of driving, “it may
be presumed that the defendant was under the influence of intoxicating
liquor.” A.R.S. § 28-1381(G)(3).
¶9 Furthermore, “aggravated DUI based on a suspended license
requires proof that the defendant . . . knew or should have known of the
suspension,” and “[o]nce the state proves mailing of the notice of
suspension, the state no longer has the burden to prove receipt of the notice
or actual knowledge of its contents[;] [t]he burden then shifts to the
defendant to show that he did not receive the notice.” State v. Cifelli, 214
Ariz. 524, 527, ¶¶ 12-13 (App. 2007) (citing State v. Williams, 144 Ariz. 487,
489 (1985), then quoting State v. Church, 175 Ariz. 104, 108 (App. 1983)); see
also A.R.S. § 28-3318(D), (E). Finally, should “the defendant commit[] an
additional offense or violate[] a condition [of probation], [the court] may
revoke probation in accordance with the rules of criminal procedure at any
time before the expiration or termination of the period of probation.” A.R.S.
§ 13-901(C). “If there is a determination of guilt . . . of a criminal offense by
a probationer . . . , no [probation] violation hearing shall be required and
the court shall set the matter down for a disposition hearing at the time set
for entry of judgment on the criminal offense.” Ariz. R. Crim. P. 27.8(e).
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STATE v. ROMERO
Decision of the Court
¶10 Based upon the record before us, sufficient evidence was
presented upon which a jury could determine beyond a reasonable doubt
Romero was guilty of the charged offenses. Romero was operating the
Expedition when Sergeant M.S. observed erratic driving and pulled him
over, at which time the sergeant detected a strong odor of alcohol
emanating from Romero and observed an open bottle of malt liquor in the
vehicle. Romero had a BAC of 0.228 within two hours of being pulled over.
Additionally, Romero did not consume any alcohol between the time he
was pulled over and the time he had his blood drawn. The evidence also
establishes Romero was on notice that his license was suspended at the
time. Moreover, Romero’s DUI convictions warranted revocation of his
probation.
¶11 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Romero
was represented by counsel at all stages and was present at all critical stages
of the proceedings, including the entire trial and the verdict. See, e.g., State
v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel) (citations omitted); State
v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present). The jury was properly
comprised of eight jurors, and the record shows no evidence of jury
misconduct. See Ariz. Const. art. 2, § 23; A.R.S. § 21-102(B); Ariz. R. Crim.
P. 18.1(a). At sentencing, Romero was given an opportunity to speak, and
the trial court stated on the record the evidence and materials it considered
and the factors it found in imposing the sentences. See Ariz. R. Crim. P.
26.9, 26.10. Additionally, the sentences imposed were within the statutory
limits. See A.R.S. §§ 13-105(22)(b), (c), -702(D), -703(C), (J), -708(C), (E).
CONCLUSION
¶12 Romero’s convictions and sentences are affirmed.
¶13 Defense counsel’s obligations pertaining to Romero’s
representation in this appeal have ended. Defense counsel need do no more
than inform Romero of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
¶14 Romero has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
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STATE v. ROMERO
Decision of the Court
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Romero
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
6