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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       JAMES BRIAN JONES, Appellant.

                              No. 1 CA-CR 19-0301
                              No. 1 CA-CR 19-0270
                                (Consolidated)
                                FILED 2-27-2020


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201800144
            The Honorable Thomas K. Kelly, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Law Offices of Gonzales & Poirer, P.L.L.C., Flagstaff
By Antonio Gonzales
Counsel for Appellant
                             STATE v. JONES
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.


M c M U R D I E, Judge:

¶1             James Brian Jones appeals his convictions for possession of
dangerous drugs (methamphetamine) and possession of drug
paraphernalia, and the resulting sentence. Jones’ counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he
found no arguable question of law that was not frivolous. Jones was
allowed to file a supplemental brief but did not do so. Counsel asks this
court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75
(1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing
the record, we affirm Jones’ convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On October 19, 2017, Yavapai County Sheriff Deputy Caylen
Brooks stopped a gray Ford Explorer in Yavapai County for not having a
functioning license-plate light. Jones was driving the vehicle.

¶3             When Jones handed Brooks his driver’s license, Brooks
noticed Jones was nervous. Brooks asked Jones to step out of the vehicle,
and if there were any drugs or weapons in the vehicle. Jones responded that
there was a firearm. Brooks asked for permission to search Jones. While
Jones initially hesitated, he ultimately agreed to the search. When searching
Jones’ left pocket, Brooks felt a plastic baggy. In response, Jones tried to
push Brooks’ hands down or away from the pocket. Brooks shouted at
Jones to keep his hands up and retrieved the plastic baggy, which contained
a white crystalline powder later determined to be methamphetamine.
Brooks seized the drug.

¶4            Upon a search of the vehicle’s trunk, Brooks found a handgun
in a case with a magazine full of ammunition. But there was no round in
the chamber. Brooks seized the firearm and arrested Jones. When he was
released from custody the next day, Jones signed a Release Conditions and
Release Order (“Release Order”) that informed him of his right to be



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                             STATE v. JONES
                            Decision of the Court

present at all proceedings and warned him that they would go forward in
his absence if he failed to appear.

¶5            The State charged Jones with possession or use of dangerous
drugs (methamphetamine), a class 4 felony; possession of drug
paraphernalia, a class 6 felony; and misconduct involving weapons, a class
4 felony, for using or possessing a firearm during the commission of the
other offenses. Jones pled not guilty to all charges.

¶6            Jones’ arraignment was rescheduled several times due to his
absence and his counsel’s inability to communicate new court dates. On
February 5, 2018, an arrest warrant was issued and subsequently quashed
when Jones appeared at the arraignment. A second arrest warrant was
issued after Jones failed to appear for a pretrial conference scheduled for
May 7, 2018. Jones did not appear on June 11, 2018, for another pretrial
conference requested by Jones’ counsel. Jones was arrested on June 13, 2018,
but was again released after posting a bond. At the pretrial conference on
June 25, 2018, Jones appeared, and the court quashed the warrant and
exonerated the bond. Jones attended all other pretrial proceedings in person
or by telephone. Jones’ presence was waived for half of the pretrial
conference held on April 29, 2019.

¶7             Jones’ counsel filed motions to suppress the evidence
gathered from the traffic stop, challenging the basis for the traffic stop and
Jones’ consent to the subsequent search. After listening to testimony from
Deputy Brooks and Jones, and reviewing an audio recording of the stop,
the court denied the motions. At that same evidentiary hearing, Jones was
advised of the charges against him and the potential consequences if he lost
at trial but chose to reject the State’s pending plea offer.

¶8             On April 24, 2019, the State supplemented its initial disclosure
and included the forensic scientist who had tested the methamphetamine
found on Jones as a possible witness. Jones’ counsel filed a motion for
sanctions requesting a dismissal of the charges or for the court to preclude
the late-disclosed forensic scientist’s testimony and report under Arizona
Rule of Criminal Procedure 15 and the United States and Arizona
constitutions. The court denied the motion.

¶9            A trial was held from May 2, 2019 to May 3, 2019. On the
morning of the first day of trial, the court held a voluntariness hearing to
determine whether Jones’ statements to the officer regarding the presence
of a firearm and drugs in the vehicle were voluntary and admissible. Jones
was not present for the hearing because he was running late. The court



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                            STATE v. JONES
                           Decision of the Court

found that the statement was voluntary and informed Jones of the
proceedings that took place in his absence once he arrived. Given the
supplemental-witness-disclosure issue, the court also offered to continue
the trial, but Jones declined. During the trial, the forensic scientist who
tested the methamphetamine testified. Deputy Brooks also testified to the
events of October 19, 2017, including the traffic stop, Jones’ arrest, and the
evidence seized.

¶10            At the end of the State’s case, Jones moved for a judgment of
acquittal on the misconduct involving weapons charge under Arizona Rule
of Criminal Procedure 20. The court granted the motion, finding the State
did not produce substantial evidence of Jones’ access to the firearm during
the commission of the other felonies. Jones elected not to testify in his
defense and presented no evidence on his behalf. The jurors found Jones
guilty for the two remaining counts, and at sentencing the court suspended
the imposition of a sentence and placed Jones on three years’ supervised
probation.

¶11          After receiving the ruling on Jones’ Rule 20 motion, the State
appealed. Jones timely appealed, and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, -4032(A)(1),
and -4033(A)(1). 1

                               DISCUSSION

¶12          We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶13            Concerning Jones’ late arrival to trial, there is sufficient
evidence to conclude Jones voluntarily waived his presence for the
preliminary matters and voluntariness hearing that took place in his
absence. A defendant’s “right to be present at trial is protected both by the
Sixth Amendment to the federal constitution as incorporated and applied
to the states through the Fourteenth Amendment, and by article II, section
24 of the Arizona Constitution.” State v. Levato, 186 Ariz. 441, 443 (1996).
Like many of the constitutional protections afforded to criminal defendants,
however, the right to attend the trial may be waived. State v.


1      The State’s Notice of Cross-Appeal was filed on May 7, 2019. There
has been no subsequent briefing by the State. Thus, the appeal is considered
abandoned, and we do not address it.



                                      4
                             STATE v. JONES
                            Decision of the Court

Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9 (1998). The critical inquiry in this
context is whether the defendant’s absence is voluntary, as “a valid waiver
depends upon voluntariness.” Id.

¶14            Under Arizona Rule of Criminal Procedure 9.1, a court may
infer that a defendant’s absence is voluntary, and thus a valid waiver of the
right to be present, “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.” Because the
superior court’s “finding of voluntary absence, and, therefore, the existence
of a waiver of the right to be present, is basically a question of fact[,] [w]e
will not upset a . . . finding of voluntary absence . . . absent an abuse of
discretion.” State v. Bishop, 139 Ariz. 567, 569 (1984) (citation omitted)
(quotation omitted). However, “in any proceeding involving the surrender
of Constitutional rights, it must appear from the record that the waiver was
knowingly, intelligently and voluntarily made.” State v. Avila, 127 Ariz. 21,
25 (1980).

¶15             Here, each requirement of Rule 9.1 was met. First, Jones
received actual notice of the date and time of trial. At the pretrial conference
held just days before the trial, the court confirmed with Jones the trial date.
Jones was present by phone for the first half of the pretrial conference, and
Jones’ counsel waived his presence for the remainder of the proceeding.
Further, at trial, Jones’ family communicated to the court that Jones was
running late due to traffic, and not because he was unaware that the trial
was scheduled for that day. Once Jones arrived, the court told him what
took place without him. Jones did not object or raise concerns regarding the
trial date or time.

¶16           Second, Jones received notice of the right to be present and
that the proceedings could go forward in his absence when he signed the
Release Order. The Release Order stated:

    DEFENDANT TO READ AND SIGN: I promise to comply with
    my release conditions. I understand I have the right to be present
    at my trial and other proceedings in my case, and if I fail to appear
    the trial or proceedings will be held without me and any bond
    posted may be forfeited. If convicted, I understand I will be
    required to appear for sentencing. If I fail to appear, I may lose my
    right to a direct appeal. If I violate any conditions of this Order, I
    understand my release can be revoked and a warrant may be issued
    for my arrest.




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                             STATE v. JONES
                            Decision of the Court

Such forms provide sufficient notice to defendants of their “right to be
present, and . . . that the proceeding would go forward in the defendant’s
absence” as required by Rule 9.1. See, e.g., State v. Tudgay, 128 Ariz. 1, 3
(1981); State v. Armenta, 112 Ariz. 352, 353–54 (1975). Thus, there is sufficient
evidence to support a finding that Jones voluntarily waived his presence at
the voluntariness hearing and other preliminary matters discussed before
the trial, and the court’s decision to proceed in his absence was appropriate.

¶17           At all stages of the proceedings against him, Jones was
represented by counsel and he was either present, hearings were continued,
or his presence was voluntarily waived. The record reflects the superior
court afforded Jones all his constitutional and statutory rights, and the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court held appropriate pretrial hearings, and the
evidence presented at trial and summarized above was sufficient to support
the jury’s verdicts. Jones’ sentence falls within the range prescribed by law.

                                CONCLUSION

¶18           Jones’ convictions and sentences are affirmed. After the filing
of this decision, defense counsel’s obligations pertaining to Jones’
representation in this appeal will end after informing Jones of the outcome
of this appeal and his future options, unless counsel’s review reveals an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).




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




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