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State v. Leyva2/25/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury tr ial held in his absence, appellant Jose Luis Leyva was convicted of aggravated driving while under the influence of intoxicants (DUI) while his license was suspended and aggravated driving with a blood alcohol concentration of .10 or more while his license was suspended. The trial court sentenced appellant to presumptive, concurrent prison ter ms of 4.5 years. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P. 2d 878 (1969). Appellant has filed a supplemental brief.
As an arguable issue, counsel asks us to consider whether the trial court erred by permitting the case to proceed in appellant' s absence. " The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and article II, § 24, of the Arizona Constitution, establish and protect a defendant' s right to be present at his trial. " State v. Reed, 196 Ar iz. 37, 3, 992 P.2d 1132, 3 (App. 1999). But " defendant may voluntarily relinquish the right to attend trial." State v. Garcia-Contreras, 191 Ar iz. 144, , 953 P. 2d 536, 9 (1998). In that regard, Rule 9.1, Ariz. R. Crim. P. , 16A A. R.S. , states that a trial " court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear. " It is the defendant' s burden of establishing that his or her absence was involuntary. State v. Suniga, 145 Ar iz. 389, 701 P. 2d 1197 (App. 1985). We review for an abuse of discretion the tr ial court' s determination that a defendant' s absence is voluntary. State v. Muniz-Caudillo, 185 Ariz. 261, 914 P.2d 1353 (App. 1996).
The record shows that appellant appeared at his arraignment on October 24, 2000, at which time he was advised that he needed to contact his attorney and that he was required to appear at the November 21, 2000 case management conference. Appellant signed a form acknowledging the next court date and his understanding of his right to appear at all proceedings involving his case and that if he did not appear, the trial or any other proceedings would proceed in his absence and that a warrant would be issued for his ar rest. The minute entry from the November 21, 2000 case management conference states that appellant and his counsel requested a continuance of the hearing, which was also a change-of-plea hearing, because appellant wanted time to get his personal affairs in order before being taken into custody. The conference was reset for November 28. On that date, appellant failed to appear and, after questioning defense counsel about appellant' s absence, the court issued a warrant for appellant' s arrest, as the pr osecutor requested. Although we have not been provided with a transcript from that conference, counsel for appellant acknowledges that at that hearing the trial cour t found appellant' s absence was voluntary.
Appellant did not appear at the hearing on the motion to set the case for trial, at which the warrant was confirmed, or at the pretrial conference, during which the warrant was again confirmed. Also at the pretrial conference, the prosecutor stated he wished to proceed with the trial in appellant' s absence. The trial was held in appellant' s absence, the court noting that appellant continued to be under warrant.
The record shows appellant was apprised of the fact that if he did not appear at any pro
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