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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              JONATHAN LAWRENCE YOUNG, Appellant.

                             No. 1 CA-CR 17-0332
                               FILED 4-24-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-146367-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant

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



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.


B E E N E, Judge:

¶1            This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969)
following Jonathan Lawrence Young’s (“Young”) convictions for
aggravated DUI for driving while his license was suspended or revoked,
and aggravated DUI for having a blood alcohol content of .08 or greater,
both class 4 felonies. Young’s counsel searched the record on appeal and
found no arguable question of law that is not frivolous. See State v. Clark,
196 Ariz. 530 (App. 1999). Counsel now asks us to search the record for
fundamental error. After reviewing the entire record, we affirm Young’s
convictions and sentences.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             On October 10, 2013 at approximately 11:00 a.m., a police
officer observed a vehicle failing to stop for a red light. The officer initiated
a traffic stop and the driver continued almost a block before stopping.

¶3            The officer asked to see the driver’s license and car
registration. The driver fumbled for his paperwork and handed the officer
an Arizona ID card, which identified him as Young. While Young was
attempting to locate his paperwork, the officer witnessed him move a can
of alcohol from the console to the floor behind the passenger seat. Young
appeared to be impaired; his eyes were red and bloodshot, and the officer
smelled alcohol on his breath.

¶4          The officer asked Young to exit his car. Once outside, Young
was unsteady on his feet and admitted to drinking beer before being pulled
over. When Young refused to take a field sobriety test, the officer placed


1       “We review 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 n.2, ¶¶ 2-3 (App. 2015) (citation omitted).



                                       2
                             STATE v. YOUNG
                            Decision of the Court

him under arrest. The officer transported Young to the Tempe City Jail
where he read him his Miranda2 rights and administered two breath alcohol
tests. The results of these tests were 0.222 and 0.206. A Motor Vehicle
Division records check revealed that Young’s driving privileges were
suspended and revoked.

¶5             Young was charged with two counts of aggravated driving
while under the influence of intoxicated liquor, both class 4 felonies. Young
was tried in absentia and found guilty on all counts. In a separate bench
trial, the State proved that Young had two prior felony convictions for
aggravated DUI. Young was sentenced to slightly aggravated, concurrent
terms of 11 years’ incarceration. Young timely appealed his conviction. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes sections 12-120.21(A)(1), 13-
4031 and -4033(A)(1).

                               DISCUSSION

¶6              The record reflects no fundamental error in pretrial or trial
proceedings. Young was represented by counsel at all critical stages in the
proceedings. While Young was not present at trial, when he was released
prior to trial, he was advised that the proceedings would go forward in his
absence if he did not appear, and Young has not claimed that his absence
was involuntary. See State v. Reed, 196 Ariz. 37, 38, ¶ 3 (App. 1999); see also
Ariz. R. Crim. P. 9.1. The superior court conducted a Donald3 hearing in
Young’s presence.

¶7            The jury was properly composed of eight members and two
alternates. The State presented direct and circumstantial evidence
sufficient for a reasonable jury to convict. The court properly denied
Young’s motion for directed verdict and appropriately instructed the jury
on the elements of the charges. The key instructions concerning burden of
proof, presumption of innocence, reasonable doubt, and the necessity of a
unanimous verdict were properly administered. The jury returned
unanimous guilty verdicts on both counts.

¶8           The superior court received a presentence report, accounted
for aggravating and mitigating factors, and provided Young an
opportunity to speak at sentencing. The superior court properly sentenced


2      Miranda v. Arizona, 384 U.S. 436 (1966).

3      State v. Donald, 198 Ariz. 406 (App. 2000).


                                      3
                              STATE v. YOUNG
                             Decision of the Court

Young to slightly aggravated, concurrent sentences of 11 years’
incarceration for each count. The sentencing minute entry was corrected to
show Young’s sentence will run concurrent with his sentence for a separate,
unrelated felony conviction.

¶9            Young’s counsel suggests that the State’s failure to file an
information before trial potentially deprived the superior court of subject
matter jurisdiction. While Article 2, Section 30, of the Arizona Constitution
requires that “[n]o person shall be prosecuted criminally in any court of
record for felony or misdemeanor, otherwise than by information or
indictment[,]” the failure to file an information will be reviewed only for
fundamental error if, as in this case, the defendant fails to object before trial.
State v. Maldonado, 223 Ariz. 309, 313, ¶ 25 (2010). Fundamental error is
“error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude that
the defendant could not possibly have received a fair trial.” State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citation omitted). The defendant
bears the burden of proving both the existence of the error and that the error
was prejudicial. Id. at ¶ 20.

¶10             Here, although no information or indictment was filed, the
direct complaint was sufficiently detailed to make Young aware of the
charges against him. Young acknowledged the charges against him when
he voluntarily signed a document waiving his right to a preliminary
hearing. See Ariz. R. Crim. P. 5.1(a)(2). The superior court found that the
direct complaint coupled with the waiver indicates Young had sufficient
notice of the charges against him. Because the failure to file an information
does not go to the foundation of the case and was not prejudicial, the State’s
failure to file an information is not fundamental error.

                                CONCLUSION

¶11           We have reviewed the entire record for reversible error and
find none; therefore, we affirm the convictions and resulting sentences.

¶12          After the filing of this decision, defense counsel’s obligation
pertaining to Young’s representation in this appeal will end. Defense
counsel need do no more than inform Young of the outcome of this appeal
and his future options, unless, upon review, counsel finds “an issue
appropriate for submission” to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the Court’s own
motion, Young has 30 days from the date of this decision to proceed, if he
wishes, with a pro per motion for reconsideration. Further, Young has 30



                                        4
                            STATE v. YOUNG
                           Decision of the Court

days from the date of this decision to proceed, if he wishes, with a pro per
petition for review.




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




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