State v. Moreno

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALFREDO ROMAN MORENO, Appellant.

No. 1 CA-CR 19-0006
FILED 10-17-2019

Appeal from the Superior Court in Maricopa County
No. CR2013-433596-001
The Honorable Richard J. Hinz, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Alfredo Roman Moreno, Phoenix
Appellant

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.
 STATE v. MORENO
Decision of the Court

T H U M M A, Judge:

¶1 Alfredo Roman Moreno appeals the superior court’s order
denying his application to designate his Class 4 felony conviction a
misdemeanor. Moreno argues the court erred in finding the conviction was
not eligible for such a designation under Arizona Revised Statute (A.R.S.)
section 13-604(A) (2019).1 Because A.R.S. § 13-604(A) only allows certain
undesignated Class 6 felony convictions to be designated misdemeanors,
the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In 2016, Moreno pled guilty to possession of less than two
pounds of marijuana for sale, a Class 4 felony, and a non-dangerous, non-
repetitive offense, and was placed on probation for two years.

¶3 In 2018, after he was discharged from probation, Moreno, pro
se, filed a form “Application to Designate a Class 6 Undesignated Felony as
a Misdemeanor.” Where the form referenced a Class 6 felony, Moreno
crossed out the printed numeral “6” and handwrote “4.” In the form,
Moreno states he had “successfully compl[ied] with all the terms order[ed]
by the Superior Court of the State of Arizona. And therefore, the
designation for the offense to a misdemeanor will provide a less harsh
approach.” The court denied the application, finding Moreno’s Class 4
felony conviction was not eligible for designation as a misdemeanor under
A.R.S. § 13-604(A).2 This court has jurisdiction over Moreno’s timely appeal
from that ruling pursuant to Article 6, Section 9, of the Arizona Constitution
and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2Although Moreno was convicted of a Class 4 felony, the order denying his
application referred to a Class 5 felony, an error that does not impact the
merits of the order denying his application or this appeal.

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 STATE v. MORENO
Decision of the Court

DISCUSSION

¶4 Moreno’s application asked that his Class 4 felony conviction
be designated a misdemeanor pursuant to A.R.S. § 13-604(A). That statute,
however, only authorizes certain Class 6 felony convictions to be
designated as misdemeanors:

[I]f a person is convicted of any class 6 felony
not involving a dangerous offense and if the
court, having regard to the nature and
circumstances of the crime and to the history
and character of the defendant, is of the opinion
that it would be unduly harsh to sentence the
defendant for a felony, the court may enter
judgment of conviction for a class 1
misdemeanor.

A.R.S. § 13-604(A) (emphasis added). The statute does not authorize a more
serious felony offense (like Moreno’s Class 4 felony conviction) to be
designated a misdemeanor. See id.

¶5 Moreno argues that section 13-604(A) should apply because
the order discharging him from probation stated: “*Notice: The defendant
may request misdemeanor designation for an undesignated offense; see
A.R.S. 13-604.” This statement alerts defendants to the possibility of section
13-604 relief, if they qualify. Moreno’s Class 4 felony conviction, however,
is not eligible for designation as a misdemeanor. Nor has Moreno cited any
other authority that would allow a court to designate his Class 4 felony
conviction a misdemeanor or how the form order could modify the
requirements outlined in section 13-604(A).3

3 Moreno states, for the first time on appeal and without supporting
authority, that the law should be “equally discharge[d] to everyone
regardless of their race, gender, immigration status, the laws of the United
States need be impartial and equal to every person under its jurisdiction.”
By failing to press this argument with the superior court, support it with
authority on appeal, or show fundamental error resulting in prejudice, it is
waived. See State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018) (“When a
defendant fails to object to trial error, he forfeits appellate relief absent a
showing of fundamental error”); see also State v. Sanchez, 200 Ariz. 163, 166
¶ 8 (App. 2001) (finding waiver for failure to develop argument).

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 STATE v. MORENO
Decision of the Court

CONCLUSION

¶6 Because Moreno has shown no error, the order denying his
application to designate his Class 4 felony conviction a misdemeanor is
affirmed.

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

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