State v. Vavages

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHERYLE VAVAGES,
Appellant.

No. 1 CA-CR 14-0795
FILED 9-15-2015

Appeal from the Superior Court in Maricopa County
CR2013-426764-001
The Honorable Brian Kaiser, Commissioner

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
 STATE v. VAVAGES
Decision of the Court

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.

O R O Z C O, Judge:

¶1 Cheryle Vavages (Vavages) appeals her convictions and
sentences for four counts of aggravated driving while under the influence
of intoxicating liquor. Vavages’s counsel filed a brief in accordance with
Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967);
and State v. Leon, 104 Ariz. 297 (1969), indicating he searched the entire
record on appeal and found no arguable question of law that was not
frivolous. This court granted Vavages leave to file a supplemental brief in
propria persona, but she has not done so. On appeal, we review the entire
record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App.
1999). Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On the evening of March 16, 2013, two on-duty Scottsdale
police officers heard what sounded like a vehicle collision at a nearby
intersection. The officers responded to the scene, observing that the car
Vavages was driving appeared to have rear ended another vehicle. One of
the officers, David Stanley (Officer Stanley), approached Vavages and
requested her driver’s license, vehicle registration and proof of insurance.

¶3 Officer Stanley noticed that Vavages’ eyes appeared to be
bloodshot and her speech was “thick.” Officer Stanley asked Vavages if she
had consumed any alcohol that evening. Vavages reported she had “two
beers.” Officer Stanley then asked Vavages to exit the vehicle to conduct
field sobriety tests, noting that she used both the driver’s seat and door to
stand up and get out of her car. During the first field sobriety test, Vavages
exhibited six markers of impairment. While explaining the second field
sobriety test, the “walk-and-turn test,” Officer Stanley noticed that Vavages
continued to step off the line on the street. Vavages declined to complete
the walk-and-turn test or any additional field sobriety tests.

¶4 While conducting a license check, Officer Stanley learned that
Vavages’s driving privileges had previously been revoked and she had

2
 STATE v. VAVAGES
Decision of the Court

more than one conviction for driving while under the influence. Vavages
was arrested for driving under the influence. She consented to and
provided a blood sample, obtained by Office Stanley.

¶5 Vavages was charged with four counts of aggravated driving
or actual physical control while under the influence of intoxicating liquor.
She was convicted by a jury on all four counts. Vavages was sentenced to
four months’ imprisonment with thirty-two days of presentence
incarceration credit, and four years’ probation as to each count, to run
concurrently.

¶6 We have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12–
120.21.A.1 and 13–4031 and –4033.A.1 (West 2015).1 Finding no reversible
error, we affirm.

DISCUSSION

¶7 Convictions on counts 1 and 3 require evidence that Vavages:
(1) drove or was in physical control of a vehicle, (2) while under the
influence of alcohol, (3) was impaired to the slightest degree, (4) that she
had two or more convictions under A.R.S. § 28-1381.A.1 (driving under the
influence or DUI) within the past eighty-four months and (5) she knew or
should have known that her license to drive was suspended. A.R.S. §§ 28-
1381.A.1, -1383.A.1, and -1383.A.2.

¶8 Convictions on counts 2 and 4 require evidence that Vavages:
(1) drove or was in physical control of a vehicle, (2) with a blood alcohol
content of .08 or more, (3) that she had two or more DUI convictions under
A.R.S. § 28-1381.A.1 within the past eighty-four months and that (4) she
knew or should have known her license to drive was suspended. A.R.S. §§
28-1381.A.2, -1383.A.1, and-1383.A.2.

¶9 At trial, the State presented evidence that within an hour of
observing Vavages in control of her vehicle, her blood alcohol concentration
was reported at .253 percent. Officer Stanley testified that Vavages showed
six indicators of impairment during the first field sobriety test. An Arizona
Motor Vehicle Department custodian of records testified that Vavages had
been convicted of DUI in 2007 and in 2009, and that she was notified by
mail that her license to drive had been suspended since 2010.

1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

3
 STATE v. VAVAGES
Decision of the Court

¶10 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. See Clark,
196 Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the jury’s findings of guilt. Vavages was present and
represented by counsel at all critical stages of the proceedings. At
sentencing, Vavages and her counsel were given an opportunity to speak
and the court imposed a legal sentence.

¶11 Counsel’s obligations pertaining to Vavages’s representation
in this appeal have ended. Counsel need do nothing more than inform
Vavages of the status of the appeal and her future options, unless counsel’s
review reveals an issue appropriate for submission to the Arizona Supreme
Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
Vavages shall have thirty days from the date of this decision to proceed, if
she so desires, with an in propria persona motion for reconsideration or
petition for review.

CONCLUSION

¶12 For the foregoing reasons, Vavages’s convictions and
sentences are affirmed.

:ama

4