Court of Appeals of Arizona, First Division, Department C
Not for Publication Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-166584-001 The Honorable Jeanne Garcia, Judge
Thomas C. Horne, Arizona Attorney General Tucson By Joseph T. Maziarz, Section Chief Counsel Criminal Appeals/Capital Litigation Division And Diane Leigh Hunt, Assistant Attorney General Attorneys for Appellee.
Marty Lieberman, Maricopa County Office of The Legal Defender Phoenix By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant .
MICHAEL J. BROWN, Presiding Judge.
¶1 Roy Saiz Rodriguez appeals his convictions and sentences for possession or use of dangerous drugs and possession of drug paraphernalia. Rodriguez argues (1) he did not waive his right to appeal by delaying his sentencing; (2) the trial court erred when it admitted an unduly suggestive photograph of Rodriguez; and (3) the court did not properly instruct the jury. For the reasons that follow, we affirm.
¶2 Police stopped Rodriguez on his bicycle after they observed him commit a traffic violation. They identified Rodriquez through his Arizona Identification Card and arrested him for an outstanding misdemeanor warrant. The search incident to the arrest revealed methamphetamine and related drug paraphernalia in Rodriguez's clothing.
¶3 The State charged Rodriguez with possession or use of dangerous drugs (methamphetamine) and possession of drug paraphernalia. The trial proceeded in absentia after Rodriguez absconded. A jury convicted Rodriguez as charged and the trial court sentenced him to a mitigated aggregate term of six years' imprisonment. Rodriguez appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A), 13-4031 and -4033.
I. Waiver of the Right to Appeal
¶4 Because Rodriguez absconded, the court was unable to sentence him until eleven months after his convictions. As set forth in A.R.S. § 13-4033(C), a defendant may not appeal a conviction if the defendant's voluntary absence prevents sentencing within ninety days after the conviction. In apparent anticipation of the State's claim of waiver, Rodriguez first argues on appeal that he did not waive his right to appeal when he delayed sentencing by his absence because no one made him aware such a waiver was possible.
¶5 This court's opinion in State v. Bolding is dispositive. If a defendant delays sentencing for more than ninety days through a voluntary absence, that defendant waives the right to appeal only if the defendant was first warned that such a waiver was possible. 227 Ariz. 82, 88, ¶ 20, 253 P.3d 279, 285 (App. 2011). The parties do not dispute that Rodriguez was never informed he could waive his right to appeal based on his absence. Therefore, Rodriguez did not waive his right to appeal pursuant to A.R.S. § 13-4033(C). While the State ...