                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  JUAN MANUEL MARTINEZ, Appellant.

                             No. 1 CA-CR 18-0460
                               FILED 4-25-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-159630-002
            The Honorable Julie Ann Mata, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Nicole Countryman, Attorney at Law, Phoenix
By Nicole Countryman
Counsel for Appellant

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                           STATE v. MARTINEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.


M O R S E, Judge:

¶1            Juan Manuel Martinez appeals his convictions and sentences
for possession of a dangerous drug for sale and possession of a narcotic
drug for sale. After searching the entire record, Martinez's defense counsel
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. Martinez filed a supplemental brief in propria persona,
which this Court has considered. Finding no reversible error, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Martinez was a passenger in a vehicle when police pulled
over that vehicle for expired license plate tags. During that stop, an officer
searched Martinez and found that Martinez was carrying a small baggie
that the officer believed to contain cocaine, along with over a thousand
dollars in cash. Forensic analysis later confirmed that the baggie contained
936.4 milligrams of cocaine.

¶3            At some point during the stop, police asked the driver
permission to search the vehicle with a K-9 unit, and he consented. The dog
quickly alerted to a duffel bag in the back seat. Opening the bag, police
found baggies that contained white powdery and crystal-like substances.
Later, forensic analysis determined that the baggies contained 28.32 grams
of methamphetamine and 28.33 grams of cocaine.

¶4            After Martinez was read his Miranda warning, a police officer
questioned him at the police station. Martinez admitted to the officer that
he trafficked in methamphetamine and cocaine. Later, he spontaneously
admitted to another officer that the bag with drugs was his.

¶5           Martinez was not present for trial, and the court proceeded in
absentia. The jury convicted him of possession of dangerous drugs for sale
and possession of narcotic drugs for sale, both class 2 felonies. The court
sentenced Martinez to concurrent terms of eight years and four years for


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                           STATE v. MARTINEZ
                           Decision of the Court

his crimes, with sixty days of presentence incarceration credit. Martinez
timely appealed.

                               DISCUSSION

¶6           "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, ¶ 2, n.2 (App. 2015).

¶7            Martinez first argues that the search of the vehicle violated his
Fourth Amendment rights because the driver's consent was given "under
coercion." The only support Martinez cites for his argument is an officer's
testimony that the driver initially refused to consent and only gave consent
after the K-9 officer arrived on scene. Because Martinez did not urge
suppression at his trial, he has waived those issues, and we therefore
employ fundamental error review. See State v. Newell, 212 Ariz. 389, 398,
¶ 34 (2006) (citing State v. Tison, 129 Ariz. 526, 535 (1981)). Defendant
presents no evidence that the driver's change in mind was involuntary.
Instead, the evidence presented indicates that the driver's consent to the K-
9 officer was freely given: the K-9 officer testified, "He told me that, yeah, I
could search and he had nothing to hide." In addition, at the time he gave
consent, the driver was unrestrained. On this record, Martinez cannot
establish that the consent was involuntary. See State v. Paredes, 167 Ariz.
609, 610 (App. 1991) (affirming trial court where "[o]ur search of the record,
however, does not indicate any basis for believing that the defendant's
consent was other than voluntary").

¶8            Martinez also argues that he "was coerced" into making his
admissions, but provides no evidence indicating coercion. We also see no
evidence of coercion in the record. Without evidence, we cannot say that
the court erred by admitting Martinez's statements at trial. See State v.
Boggs, 218 Ariz. 325, 336, ¶ 44 (2008) ("To find a confession involuntary, we
must find both coercive police behavior and a causal relation between the
coercive behavior and the defendant's overborne will.").

¶9             Martinez also argues that the trial court should not have held
his trial in absentia. Martinez admits, and the record confirms, that "[i]t is
uncontroverted that Mr. Martinez had notice of the . . . trial date, his right
to be present at trial, and that he had been warned that trial could proceed
in his absence." Martinez does not allege any facts that shows his absence
was involuntary. Instead, Martinez points to statements made by his
counsel during sentencing to show that his counsel ignored or misplaced e-
mails in which Martinez had requested a different trial date. However,



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                           STATE v. MARTINEZ
                           Decision of the Court

counsel did not bring these e-mails to the court's attention prior to trial and
Martinez does not claim that counsel informed him that the trial date would
be changed per his request. On this record, Martinez was clearly aware of
the date for trial and the court properly inferred that his absence was
voluntary. See Ariz. R. Crim. P. 9.1 ("The court may infer that a defendant's
absence is voluntary if the defendant had actual notice of the date and time
of the proceeding, notice of the right to be present, and notice that the
proceeding would go forward in the defendant's absence."); see also State v.
Hall, 136 Ariz. 219, 222-23 (App. 1983) (finding valid waiver of right to be
present even though defendant had told his attorney that he may not be
able to be present on the scheduled trial date).

¶10           Martinez also claims his counsel's performance was deficient.
This Court will not consider claims of ineffective assistance of counsel on
direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). Such claims must
be first presented to the trial court in a petition for post-conviction relief.
Id.

¶11            In addition to evaluating the arguments raised in Martinez's
supplemental brief, we have conducted an independent review of the
record. Our review also reveals no fundamental error. See Leon, 104 Ariz.
at 300 ("An exhaustive search of the record has failed to produce any
prejudicial error."). The proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure ("Rule"). The record reveals that
Martinez was represented by counsel at all critical stages of the
proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at
critical stages). The jury was properly comprised of twelve jurors, and the
record shows no evidence of juror misconduct. See A.R.S. § 21-102(A); Rule
18.1. The trial court properly instructed the jury on the elements of the
charged offenses, the State's burden of proof, the necessity of a unanimous
verdict, and the presumption of innocence. At sentencing, Martinez was
given an opportunity to speak, and the court explained the basis for
imposing the sentences. See Rules 26.9, 26.10. Additionally, the court
appropriately imposed a sentence within the statutory limits. See A.R.S.
§ 13-702(D).

                              CONCLUSION

¶12            Martinez's conviction and sentence are affirmed. Defense
counsel shall inform Martinez of the status of the appeal and of his future
options. 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).


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                        STATE v. MARTINEZ
                        Decision of the Court

¶13          Martinez has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona motion for
reconsideration or petition for review.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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