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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        EDWARD GLEBA, Appellant.

                             No. 1 CA-CR 14-0237
                              FILED 2-4-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-148610-001
          The Honorable Phemonia L. Miller, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant

Edward Gleba, San Luis
Appellant
                            STATE v. GLEBA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


B R O W N, Judge:

¶1             Edward Gleba appeals his convictions and sentences for four
counts of aggravated driving under the influence of intoxicating liquor
(“aggravated DUI”). Counsel for Gleba filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), advising that after searching the record on appeal, he was unable to
find any arguable grounds for reversal. Gleba was granted the opportunity
to file a supplemental brief in propria persona, and he has done so.1

¶2             Our obligation is to review the entire record for reversible
error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the facts
in the light most favorable to sustaining the conviction and resolve all
reasonable inferences against Gleba. State v. Guerra, 161 Ariz. 289, 293
(1989). Finding no reversible error, we affirm.

                             BACKGROUND

¶3            The State charged Gleba with Count 1, driving while under
the influence of intoxicating liquor with a suspended license, in violation of
Arizona Revised Statutes (“A.R.S.”) sections 28-1381(A)(1), -1383(A)(1);
Count 2, driving while under the influence of intoxicating liquor with a
blood alcohol concentration of 0.08 or more with a suspended license, in
violation of A.R.S. §§ 28-1381(A)(2), -1383(A)(1); Count 3, driving while
under the influence of intoxicating liquor with two prior DUI violations
within 84 months, in violation of A.R.S. §§ 28-1381(A)(1), -1383(A)(2); and
Count 4, driving while under the influence of intoxicating liquor with a
blood alcohol concentration of 0.08 or more with two prior DUI violations


1      Gleba has also filed a “Motion To Strike Answering Brief as
Untimely [ARCP 31.13(a)],” asking this court to strike any answering brief
filed by the State filed after June 22, 2015. Pursuant to this court’s order
dated February 19, 2015, “the filing of an answering brief by [the] State of
Arizona shall await further order of this court.” As we have not ordered an
answering brief to be filed by the State, we deny Gleba’s motion as moot.

                                      2
                             STATE v. GLEBA
                            Decision of the Court

within 84 months, in violation of A.R.S. §§ 28-1381(A)(2), -1383(A)(2). The
following evidence was presented at trial.

¶4            On the evening of April 6, 2012, Detective Dyer and Officer
Engram were on routine foot patrol in downtown Scottsdale. At
approximately 11:00 p.m., while walking in the northbound direction of
Brown Street, Dyer heard a “screeching” and “scraping” noise that he
“immediately recognized” as the sound of a flat tire, and Engram heard a
“loud thumping” sound. When Dyer and Engram turned in the direction
of the noise, they observed a black Dodge Charger traveling southbound
on Brown from Camelback. They observed the driver, Gleba, pull the car
over to the side of the street, exit from the driver’s side of the vehicle, and
look at the rear driver’s side tire.

¶5           Although Dyer observed no other individuals in or near the
vehicle as he approached Gleba, Gleba suggested he was not the driver,
commenting that “she” was driving but failed to identify who that person
was. While speaking with Gleba, Dyer detected an odor of alcohol and
noted that Gleba had bloodshot, watery eyes and slurred speech. Because
Dyer was not equipped to handle a DUI investigation, he waited for a
backup unit.

¶6            When Officer Rowley arrived, Gleba was seated on the curb.
Rowley noted Gleba had bloodshot, watery eyes, slurred speech, and an
odor of alcohol. Gleba consented to field sobriety tests and Rowley detected
numerous cues of impairment. Gleba admitted he had been drinking and
consented to a blood test, which later revealed Gleba’s blood alcohol
content (“BAC”) was .209.

¶7            The State presented evidence that Gleba’s license had been
suspended “indefinitely” since 2008, and therefore was suspended on April
6, 2012. A custodian of records for the Motor Vehicle Division of the
Arizona Department of Transportation (“Department”) testified that
multiple notices of suspension had been sent to Gleba’s address of record.

¶8            Gayle Jarrell, a former Phoenix police officer with experience
as a vehicle inspector and accident reconstructionist, testified for the
defense. Based on his training and experience, Jarrell opined that Gleba’s
vehicle sustained no damage as would result if the rim of the tire was
making an audible scraping sound along the road.

¶9           Gleba testified that immediately before the police approached
him, he had left a hotel restaurant to return to his car to charge his phone.
When he arrived at the vehicle, he noticed the flat tire. Gleba testified that


                                      3
                            STATE v. GLEBA
                           Decision of the Court

he “had absolutely not” been driving when Dyer and Engram approached
him.

¶10            The jury found Gleba guilty as charged. After finding he had
three prior felony convictions, the trial court sentenced Gleba to concurrent
ten-year terms of imprisonment for each count.2 This timely appeal
followed.

                               DISCUSSION

       A.     Sufficiency of the Evidence

¶11            Citing conflicting evidence and discrepancies in testimony
presented at trial, Gleba first argues there was an insufficient basis for the
State to file charges against him. Although Gleba frames the issue as
insufficient facts to support the charging documents, he relies on evidence
presented at trial. We therefore construe his argument as a challenge to the
sufficiency of the evidence to support his convictions.

¶12           In evaluating a challenge to the sufficiency of evidence, we
consider the evidence in the light most favorable to sustaining the verdict
and uphold the verdict “if substantial evidence exists to support [it].” State
v. Stroud, 209 Ariz. 410, 411, ¶ 6 (2005). Substantial evidence “must be
evidence that reasonable persons could accept as sufficient to support a
guilty verdict beyond a reasonable doubt.” Id. at 412, ¶ 6 (internal
quotations omitted).

¶13             To convict Gleba of the four counts of aggravated DUI, the
State was required to prove that Gleba: (1) was in actual physical control of
a vehicle, (2) was under the influence and impaired, (3) had a BAC of 0.08
or greater, (4) had a suspended license, and (5) had two prior DUI violations
within 84 months. A.R.S. §§ 28-1381(A)(1), (A)(2), -1383(A)(1), (A)(2).



2      At sentencing, the trial court found Gleba had violated his probation
in two unrelated matters, CR2010-006297 and CR2011-006270. The court
imposed mitigated, concurrent terms of one and one-half years
imprisonment in those cases and credited Gleba with 562 and 568 days of
presentence incarceration, respectively.        Because his presentence
incarceration credit was applied to CR2010-006297 and CR2011-006270,
Gleba was not credited with presentence incarceration on his DUI
convictions.



                                      4
                              STATE v. GLEBA
                             Decision of the Court

¶14           Gleba does not dispute that he was impaired or that he had a
BAC well over .08 at the time he was taken into custody. Nor does he
dispute he had two prior DUI violations within 84 months. Instead, he
argues he never drove his vehicle after he commenced drinking that
evening and was simply standing by his car to charge his phone when
approached by Dyer and Engram. In support, Gleba points to his own
testimony as well as that of his expert, Jarrell, who concluded there was no
damage to the vehicle’s tires as would occur if the vehicle was driven with
a substantially flat tire. Nonetheless, Dyer and Engram testified they heard
a noise that sounded like a car being driven with a flat tire and they saw
Gleba driving the vehicle. Given these eyewitness accounts, there was
sufficient evidence to support the jury’s verdicts. See Guerra, 161 Ariz. at
293 (“When reviewing the sufficiency of the evidence, an appellate court
does not reweigh the evidence” and “[i]f conflicts in evidence exist, the
appellate court must resolve such conflicts in favor of sustaining the verdict
against the defendant.”).

¶15          Gleba does not dispute that his license was suspended, but he
challenges the sufficiency of the evidence that he had knowledge of the
suspension. Specifically, Gleba contends that he “moved a number of times
during the period in question” and never received notice that his license
was suspended.

¶16            “Driving under the influence is a strict liability offense, but
aggravated DUI based on a suspended license requires proof that the
defendant drove a motor vehicle under the influence of alcohol while his
license was suspended, and that he knew or should have known of the
suspension.” State v. Cifelli, 214 Ariz. 524, 527, ¶ 12 (App. 2007). Pursuant
to statute, the Department “must provide written notice to a licensee
informing him when his license is suspended.” Id.; see also A.R.S. § 28-
3318(A)(1). “The written notice must be sent by mail to the address
provided to the Department on the licensee’s application, unless the
licensee has notified the Department of a change” in address pursuant to
statute. Cifelli, 214 Ariz. at 527, ¶ 12; (citing A.R.S. § 28-448(A)(2) (requiring
licensees, including persons with a license that is “suspended, revoked, or
canceled,” to “notify the department within ten days” of any change in
address); A.R.S. § 28-3318(C)). Service of the notice is “complete on
mailing.” A.R.S. § 28-3318(D). Section 28-3318(E) provides: “Compliance
with the mailing provisions of this section constitutes notice of the
suspension . . . for purposes of prosecution under § 28-1383[.] The state is
not required to prove actual receipt of the notice or actual knowledge of the
suspension[.]”



                                        5
                            STATE v. GLEBA
                           Decision of the Court

¶17            “Although the statutory scheme establishes a presumption
that the licensee has received notice, and therefore has actual knowledge,
of his license suspension when the Department complies with the mailing
requirement, this presumption is rebuttable and a defendant may
demonstrate that he did not receive the notice.” Cifelli, 214 Ariz. at 527, ¶
13. “[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. The burden then shifts to the defendant to show that he did
not receive the notice.” Id. (internal citation and quotation omitted).

¶18            Here, the State presented evidence of numerous notices of
license suspensions being mailed to Gleba’s address of record. Although
Gleba testified to separating from his wife during the relevant period, he
never claimed a disruption in his receipt of mail, nor did he assert that he
failed to receive the notices of suspension. On this record, the trial court
properly instructed the jurors that they could consider the statutory notice
presumption as satisfying the mens rea element for the charged offenses.

      B.      Pre-Charge Delay

¶19           Gleba next contends he was prejudiced by the State’s delay in
charging him. Specifically, Gleba argues he lost the ability to gather the
surveillance video of the hotel where he had been dining. Because the
record does not reflect that Gleba raised this claim in the trial court, we
review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). “To prevail under this standard of review, a defendant must
establish both that fundamental error exists and that the error in his case
caused him prejudice.”3 Id. at 567, ¶ 20.

¶20          On April 6, 2012, Gleba was taken into custody. He was soon
released, however, and the State did not file a complaint against Gleba until
September 14, 2012 and did not charge him by information until January
10, 2013.

¶21           For a charging delay to violate due process, a defendant must
show that (1) the delay was intended to gain a tactical advantage or to
harass him, and (2) the delay actually and substantially prejudiced him. See
State v. Dunlap, 187 Ariz. 441, 450 (App. 1996). “[A] defendant has a heavy


3      Gleba likewise failed to raise in the trial court the remainder of the
issues he identifies in his supplemental brief and we therefore review them
under the fundamental error standard. See Henderson, 210 Ariz. at 567, ¶
19.

                                     6
                            STATE v. GLEBA
                           Decision of the Court

burden to prove that pre-indictment delay caused actual prejudice; the
proof must be definite and not speculative.” Id. (internal quotation
omitted). “To make a showing of actual and substantial prejudice, it is not
enough to show the mere passage of time nor to offer some suggestion of
speculative harm; rather the defendant must present concrete evidence
showing material harm.” Id. (internal quotation omitted).

¶22           Gleba does not argue, and the record does not reflect, that the
State delayed charging Gleba to gain a tactical advantage over him. Equally
important, Gleba has only speculated that the hotel may have had
surveillance footage that would have included his curbside vehicle, without
any evidence to support this claim. Therefore, Gleba has not satisfied his
burden of establishing a violation of due process.

       C.     Probable Cause

¶23            Citing Gerstein v. Pugh, 420 U.S. 103 (1975), Gleba contends he
was denied constitutional safeguards by being detained pursuant to the
charging documents without a probable cause determination. As explained
in Gerstein, states may have different pretrial procedures, but each “must
provide a fair and reliable determination of probable cause as a condition
for any significant pretrial restraint of liberty, and this determination must
be made by a judicial officer either before or promptly after arrest.” 420
U.S. at 125. Under Arizona law, a petitioner “arrested pursuant to a warrant
[] has had his informal judicial determination of probable cause[.]”
Rockwood v. Superior Court, 27 Ariz. App. 338, 339 (1976).

¶24          On October 24, 2012, the State filed a direct complaint and
warrant for arrest. Therefore, Gleba was taken into custody pursuant to a
warrant, which issued upon a Gerstein-compliant judicial determination of
probable cause.

       D.     Racial Composition of Jury

¶25         Gleba challenges the composition of the jury because no
“Mexican-Americans” were impaneled, notwithstanding that “the
percentage of Mexican-Americans in the general population” is
approximately “30%.”

¶26            To establish a prima facie violation of the Sixth Amendment’s
fair cross-section requirement, a defendant must show:

       (1) that the group alleged to be excluded is a “distinctive”
       group in the community; (2) that the representation of this


                                      7
                              STATE v. GLEBA
                             Decision of the Court

       group in venires from which juries are selected is not fair and
       reasonable in relation to the number of such persons in the
       community; and (3) that this underrepresentation is due to
       systematic exclusion of the group in the jury-selection
       process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). When these requirements are
satisfied, the burden then shifts to the state to demonstrate a significant
state interest “manifestly and primarily” advanced by the selection criteria
at issue. Id. at 367.

¶27           There is no dispute regarding the first prong. Gleba has failed
to present sufficient evidence to assess the second prong, however, relying
on an unsubstantiated figure. More importantly, Gleba has not argued, and
our review of the record does not reveal, any basis for concluding that any
underrepresentation among the jurors in this case is due to systematic
exclusion of Hispanics in the jury selection process. We therefore find no
error.

       E.      Number of Jurors

¶28             Gleba contends the trial court erred by impaneling only eight
jurors when he was exposed to a possible forty-year sentence. However,
even assuming that Gleba’s sentences could have been imposed
consecutively, our supreme court has held that once a jury of less than
twelve persons begins deliberations, a trial court cannot impose a sentence
that is thirty years or greater. See State v. Soliz, 223 Ariz. 116, 120, ¶ 16 (2009)
(“By failing to request a jury of twelve, the State effectively waived its
ability to obtain a sentence of thirty years or more.”).

       F.      Speedy Trial Violation

¶29           Gleba contends his right to a speedy trial was violated
because he was not tried within 150 days of his arraignment as required by
Arizona Rule of Criminal Procedure (“Rule”) 8.2(a)(1). Gleba was already
in custody at the time of his arraignment on January 10, 2013 and remained
in custody thereafter. The trial court set the initial last day for June 16, 2013,
in accordance with Rule 8.2. On April 29, 2013, Gleba filed a motion to
suppress, challenging the reliability of the blood test. The court
subsequently held two evidentiary hearings on the matter, and excluded
time from May 31, 2013 through September 30, 2013 (122 days) to address
the issue, with a new last day of October 16, 2013.




                                         8
                             STATE v. GLEBA
                            Decision of the Court

¶30            On August 9, 2013, the trial court denied the motion to
suppress. Given the time excluded, Gleba’s first trial timely commenced on
October 7, 2013. The jury deadlocked, however, and the court declared a
mistrial on October 16, 2013. Pursuant to Rule 8.2(c), “[a] new trial ordered
after a mistrial . . . shall commence within 60 days of the entry of the order
of the court.” Gleba’s second trial began December 2, 2013, with a new last
day calculation of December 15, 2013. Therefore, we reject Gleba’s assertion
that his speedy trial rights were violated.

       G.     Duplicitous Charges

¶31           Gleba contends the trial court erred by permitting the State to
bring duplicitous charges. Specifically, Gleba contends that all four DUI
convictions arise out of the same alleged driving incident, and the
constitution prohibits the imposition of multiple punishments for the same
offense.

¶32            By statute, an “act . . . which is made punishable in different
ways by different sections of the laws may be punished under both, but in
no event may sentences be other than concurrent.” A.R.S. § 13-116. To
determine whether a defendant’s criminal conduct constitutes a single act
for purposes of A.R.S. § 13-116, we subtract “the evidence necessary to
convict of one crime” and if “the remaining evidence satisfies the elements
of the other crime, then consecutive sentences may be permissible under
A.R.S. § 13-116.” State v. McDonagh, 232 Ariz. 247, 250, ¶ 12 (App. 2013)
(internal citation and quotations omitted).

¶33           Here, a single act of driving was common to all four
aggravated DUI offenses of which Gleba was convicted. Because the
elements of no count could be satisfied after subtracting the act of driving,
the sentences for the four convictions could only be imposed concurrently.
The trial court correctly imposed concurrent sentences, and thus the
charges were not duplicitous.

       H.     Declaration of Mistrial

¶34           Gleba argues the trial court erred in declaring a mistrial and
therefore the second trial violated his right against double jeopardy. In
evaluating a double jeopardy claim, we review the trial court’s decision to
declare a mistrial for an abuse of discretion. State v. Aguilar, 217 Ariz. 235,
238, ¶ 7 (App. 2007). Both the federal and state constitutions protect a
defendant from being tried multiple times for the same criminal offense.
U.S. Const. amend. V; Ariz. Const. art. 2, § 10.



                                      9
                              STATE v. GLEBA
                             Decision of the Court

¶35           Nonetheless, the defendant’s right to a single trial “must in
some instances be subordinated to the public’s interest in fair trials
designed to end in just judgments.” Aguilar, 217 Ariz. at 238, ¶ 10 (internal
quotations omitted). “When the court declares a mistrial sua sponte, retrial
will not be barred if there was a manifest necessity for the mistrial or . . . the
ends of public justice will otherwise be defeated.” Id.

¶36           In the first trial, the jury sent the court a note that it had
reached an impasse. In response, the court inquired in writing whether the
jurors were “deadlocked on all counts.” The court brought the jurors into
the courtroom, and, in the presence of counsel, asked the jurors whether
they believed that, with “further deliberations,” they may be able to reach
a verdict within a reasonable period of time. The jurors responded they did
not believe they could do so.

¶37           Pursuant to Rule 22.4,

       if the jury advises the court that it has reached an impasse in
       its deliberations, the court may, in the presence of counsel,
       inquire of the jurors to determine whether and how court and
       counsel can assist them in their deliberative process. After
       receiving the jurors’ response, if any, the judge may direct that
       further proceedings occur as appropriate.

Applying the rule to this case, the trial court acted within its discretion in
responding to the jury’s impasse notification. Although the court may also
have properly elected to give the jury more time to deliberate, we cannot
say the court abused its discretion by discharging the jurors and declaring
a mistrial upon being informed that the jurors were deadlocked on every
count.

       I.      Vindictive Prosecution

¶38          Gleba contends the State engaged in vindictive prosecution
by “pil[ing] on all manner of prior felony convictions,” allegedly in
response to his exercise of the right to a jury trial, and the trial court
therefore erred by imposing sentences based on those prior felony
convictions.

¶39           Contrary to Gleba’s claims, the record does not reflect that the
State alleged multiple priors as a means of retaliating for Gleba’s refusal to
enter a plea agreement. The State filed the allegations of prior felony
convictions early in the case, while plea negotiations and settlement were
still ongoing. Therefore, because there is no evidence to support Gleba’s


                                       10
                            STATE v. GLEBA
                           Decision of the Court

claim of prosecutorial vindictiveness, the trial court did not err by finding
Gleba had multiple prior felonies and sentencing him accordingly.4

                              CONCLUSION

¶40          We have searched the entire record for reversible error and
have found none. All of the proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure. The record shows Gleba
was present at all pertinent proceedings and was represented by counsel.
Gleba had an opportunity to speak before sentencing, and the sentence
imposed was within the statutory limits. Accordingly, we affirm Gleba’s
convictions and sentences.

¶41            Upon the filing of this decision, counsel shall inform Gleba of
the status of the appeal and his options. Defense 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). Gleba shall have thirty days from
the date of this decision to proceed, if he so desires, with a pro per motion
for reconsideration or petition for review.




                                    :ama




4       Gleba contends that the trial judge lacked the legal authority, as a
commissioner, to preside over his trial. However, the judge had been
appointed as a judge pro tempore during the relevant trial proceedings.
Additionally, Gleba raises several issues implicating ineffective assistance
of counsel, but such issues must be raised in the first instance by filing a
petition for post-conviction relief. See State v. Sprietz, 202 Ariz. 1, 3, ¶ 9
(2002).




                                     11
