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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  RICHARD RAUL SANCHEZ, Appellant.

                             No. 1 CA-CR 18-0031
                               FILED 11-27-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-153674-001
         The Honorable William R. Wingard, Judge Pro Tempore

                        AFFIRMED AS MODIFIED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
                             STATE v. SANCHEZ
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.


M c M U R D I E, Judge:

¶1             Richard Raul Sanchez appeals his conviction on two counts of
misconduct involving weapons and the resulting sentences. Sanchez’s
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. Sanchez was given the opportunity 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 Sanchez’s
convictions and sentences as modified.

              FACTS AND PROCEDURAL BACKGROUND

¶2             In the early morning hours of November 15, 2016, Phoenix
Police Officer Mark Wibbing was on patrol at a public park, where he
noticed a vehicle parked alone in the parking lot. Wibbing parked in the lot
and ran the vehicle’s license plate numbers. Wibbing discovered the
registered owner of the vehicle was a female with an outstanding felony
warrant and called for backup. While Wibbing waited for the backup
officers to arrive, he observed Sanchez and a female get out of the vehicle.
As the two exited the vehicle and began walking through the park, Officers
David Murphy and Zabatka Colbert arrived at the scene.

¶3           Wibbing got out of his vehicle and yelled at Sanchez and his
companion to stop and talk to him. Instead, the two began running towards
the neighborhood beyond the park. Murphy and Colbert pursued them
while Wibbing proceeded in a different direction to cut them off. Murphy
observed Sanchez pull an object from the left side of his jacket and heard “a
thud on the ground.” The officers eventually apprehended Sanchez;
searched him; and discovered shotgun shells in his pocket. Meanwhile,
Murphy retraced the path of the chase and discovered a loaded, double
barrel, sawed-off shotgun on the ground. The officers learned that Murphy
also had an outstanding felony warrant. The shotgun was modified, as the


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                           STATE v. SANCHEZ
                           Decision of the Court

barrel measured approximately 11.75 inches, and the overall length of the
shotgun measured approximately 20.75 inches.

¶4            Colbert and Murphy arrested Sanchez and drove him to the
police station, where Murphy informed Sanchez of his Miranda rights and
interviewed him. During the interview, Sanchez apologized for running
away from the officers and for throwing the gun on the ground.

¶5              The State charged Sanchez with two counts of misconduct
involving weapons—one count for being a felon in possession of a deadly
weapon and the other count for possessing a prohibited weapon. Before
trial, Sanchez moved to exclude several pieces of evidence, which the
superior court granted in part. The superior court also informed Sanchez
that he must attend his trial, or he would waive his right to be present.
However, Sanchez did not attend the trial; the court issued a bench warrant
for his arrest; and proceeded without him.

¶6             All three officers testified at the trial regarding their
encounter with Sanchez. In addition, the State called John Copeland, a
former employee of the firearms section of the City of Phoenix crime lab, to
testify that the stock of the shotgun had been illegally cut down, and it was
in an operable condition.

¶7           Following the conclusion of the State’s case, Sanchez’s
counsel moved for a directed verdict on both counts, which the superior
court denied, and the jury found Sanchez guilty of both counts. Sanchez
was present for sentencing. After considering Sanchez’s prior convictions,
the court sentenced him to a slightly mitigated term of nine years’
imprisonment with 110 days’ presentence incarceration credit.

                              DISCUSSION

¶8             As a preliminary matter, although Sanchez was absent during
his trial and sentencing took place more than 90 days after his conviction,
Sanchez did not forfeit his right to appeal. Under A.R.S. § 13-4033(C), a
defendant may not appeal his conviction “if the defendant’s absence
prevents sentencing from occurring within ninety days after conviction and
the defendant fails to prove by clear and convincing evidence at the time of
sentencing that the absence was involuntary.” In the instant case, Sanchez
was convicted on September 25, 2017, and his initial sentencing hearing was
scheduled for December 8, 2017. The hearing was later moved to January 5,
2018—more than 90 days after Sanchez’s conviction. Because Sanchez was
in custody between December 8, 2017, and his sentencing, we conclude that



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                           STATE v. SANCHEZ
                           Decision of the Court

Sanchez’s absence did not prevent the sentencing hearing from taking place
within 90 days. Accordingly, we proceed to consider Sanchez’s appeal.

¶9           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.

¶10            Sanchez was present and represented by counsel at all stages
of the pretrial proceedings against him. He chose not to attend the trial. His
trial was completed in absentia pursuant to Arizona Rule of Criminal
Procedure 9.1. The record reflects the superior court afforded Sanchez all
his constitutional and statutory rights, and the proceedings were conducted
in accordance with the Arizona Rules of Criminal Procedure. The court
conducted appropriate pretrial hearings, and the evidence presented at trial
and summarized above was sufficient to support the jury’s verdicts.
Sanchez’s sentences fall within the range prescribed by law, with proper
credit given for presentence incarceration.

¶11           However, counsel points out the superior court imposed a $15
fee pursuant to A.R.S. § 12-116.08, which was effective from September 13,
2013, to August 9, 2016. Because Sanchez committed the crimes at issue on
November 15, 2016, the imposition of this fee was in error, and we vacate
that portion of Sanchez’s fees.

                              CONCLUSION

¶12            Sanchez’s convictions and sentences are affirmed as modified.
After the filing of this decision, defense counsel’s obligations pertaining to
Sanchez’s representation in this appeal will end after informing Sanchez 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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