Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County Nos. CR20074485 and CR20090767001 The Honorable Deborah Bernini, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Alan L. Amann, Assistant Attorney General, Tucson Counsel for Appellee
Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 This consolidated appeal arises from appellant Sean O'Shea's convictions and sentences in two separate cases of driving under the influence of an intoxicant (DUI); one involving DUI offenses that occurred in 2007, and one involving DUI offenses that occurred in 2009. For the following reasons, we affirm O'Shea's convictions and sentences for his 2007 and 2009 offenses, but we vacate the criminal restitution order (CRO) entered at sentencing.
Factual and Procedural Background
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions." State v. Powers, 200 Ariz. 123, ¶ 2, 23 P.3d 668, 669 (App. 2001). In May 2007, a Tucson police officer stopped O'Shea for speeding and swerving outside of his lane. The officer ran a check on O'Shea's license and found that it was valid. During the stop, the officer noticed O'Shea had bloodshot eyes, a flushed face, and the odor of alcohol on his breath. The officer asked O'Shea if he had been drinking, and O'Shea said that he had. After a DUI investigation, the officer arrested O'Shea.
¶3 On November 26, 2007, O'Shea was indicted for four DUI offenses: aggravated DUI while license is suspended or revoked, A.R.S. § 28-1383(A)(1), aggravated DUI with an alcohol concentration (AC) of .08 or more while license is suspended or revoked, A.R.S. § 28-1383(A)(1), aggravated DUI with two or more prior DUI violations, A.R.S. § 28-1383(A)(2), and aggravated DUI with an AC of .08 or more with two or more prior DUI violations, A.R.S. § 28-1383(A)(2). A summons to appear was sent to O'Shea's address on November 27, 2007. O'Shea was to be arraigned on December 17, 2007, but he did not appear, and a warrant was issued for his arrest.
¶4 In March 2010, O'Shea was tried in absentia. During that trial, a custodian of records from the department of motor vehicles testified that O'Shea's license had been suspended and revoked at the time of his offenses. After a three-day jury trial, O'Shea was convicted of aggravated DUI with a suspended or ...