State v. Molina

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC PINA MOLINA, Appellant.

No. 1 CA-CR 19-0530
FILED 6-23-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-148165-001
The Honorable Julie A. LaFave, Judge Pro Tempore

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
 STATE v. MOLINA
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Eric Pina
Molina has advised this Court of a clerical error in the sentencing order and
order of confinement, but has found no other arguable questions of law and
asks us to search the record for fundamental error. Molina was convicted
of three counts of aggravated driving under the influence. Molina was
given an opportunity to file a supplemental brief in propria persona; he has
not done so. After reviewing the record, we conclude there is no reversable
error and affirm Molina’s convictions. We correct the sentencing order and
order of confinement in light of a clerical error.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Molina. State v.
Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).

¶3 At approximately 2:30 a.m. on March 18, 2017, a Gilbert Police
Department officer on patrol noticed a vehicle driving faster than the
posted speed limit and initiated a traffic stop on Ray Road. The officer
approached the driver’s side window; Molina provided the officer with an
Arizona identification card and admitted he was driving with a suspended
license. During the traffic stop, the officer noticed Molina’s speech was
slurred and detected an odor of alcohol, but Molina denied drinking alcohol
that night or ever using drugs. Molina exited the vehicle at the officer’s
request, but he refused to complete a field sobriety test, and the officer
placed him under arrest.

¶4 The officer transported Molina to the Gilbert/Chandler
holding facility, where Molina acted “very confrontational, very
argumentative, very vulgar, and insulting” toward officers and detention
staff. After obtaining a search warrant for Molina’s blood, a phlebotomist
drew a blood sample from Molina at 4:00 a.m. A toxicology analysis

2
 STATE v. MOLINA
Decision of the Court

determined Molina had a blood-alcohol level of .207, and analysts also
detected cannabinoids and cocaine in the blood sample.

¶5 Molina was charged and indicted with three counts, each a
Class 4 felony: Count 1, aggravated driving under the influence of alcohol
or drugs while impaired and knowing his license was suspended; Count 2,
aggravated driving under the influence with an alcohol concentration of
0.08 or greater and knowing his license was suspended; and Count 3,
aggravated driving under the influence with the presence of a drug in his
body and knowing his license was suspended. See Arizona Revised
Statutes (“A.R.S.”) sections 28-1381, -1382, -1383(A)(1). After a hearing
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 11, the superior
court found Molina competent to assist with his defense. Molina rejected a
global plea offer that would have resolved the instant case and two other
outstanding cases. The superior court also denied Molina’s request for
change of counsel, citing the impending trial date.

¶6 The three-day trial began on April 15, 2019. Although he
arrived late, Molina attended the first day of trial, which consisted of jury
selection. Molina failed to appear on the second and third days of trial; the
trial proceeded in his absence with Molina’s counsel representing him. The
superior court issued a warrant for his arrest.

¶7 The State presented evidence of Molina’s suspended license,
and forensic scientists testified as to the results of the analysis performed
on Molina’s blood sample as well as the metabolization rates and effects of
cannabinoids and cocaine. Counsel for Molina did not call witnesses, but
did cross-examine three of the State’s witnesses. The jury returned verdicts
of guilty as to all three counts.

¶8 The superior court conducted the sentencing hearing in
compliance with Molina’s constitutional rights and Rule 26.1 Molina and a
family member addressed the court on his behalf. After determining the
presumptive sentence was appropriate for all three counts, the court

1 The sentencing hearing also addressed three other matters,
including CR 2017-128193-001, in which Molina was found guilty of five
felony counts after a jury trial. Molina accepted a plea deal as to the other
two matters, CR 2017-148166-001, a Class 6 felony, and CR 2019-005520-001,
a Class 4 felony. The decision in this appeal does not affect the resolution
of any of these other cases.

3
 STATE v. MOLINA
Decision of the Court

imposed concurrent sentences of 2.5 years in the Department of Corrections
on each count, with 86 days’ credit for presentence incarceration.2

DISCUSSION

¶9 We review Molina’s convictions and sentences for
fundamental error. See State v. Hernandez, 246 Ariz. 407, 410, ¶ 6 (App.
2019). Fundamental error goes “to the foundation of the case . . . 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. Hunter, 142 Ariz. 88, 90 (1984).

¶10 Counsel for Molina has advised this Court that after a diligent
search of the entire record, counsel has found no arguable question of law.
We have read and considered counsel’s brief and fully reviewed the record
for reversible error. See Leon, 104 Ariz. at 300. We find none. All the
proceedings were conducted in compliance of the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Molina at all stages of the proceedings, and the sentences imposed were
within the statutory limits. At sentencing, Molina and his counsel were
given an opportunity to speak, and the superior court imposed a legal
sentence.

¶11 Counsel for Molina correctly notes a clerical error in the
sentencing order and order of confinement. At the sentencing hearing, the
court stated it imposed presumptive sentences of 2.5 years for each of the
three counts and determined no prior historical felony convictions applied.
The sentencing order and order of confinement, however, each state Molina
received a 4.5-year sentence for Count 2 as a Category 2 non-dangerous,
repetitive offense pursuant to A.R.S. § 13-703(I). “Where there is a
discrepancy between the oral sentence and the written judgment, the oral
pronouncement of sentence controls.” State v. Hanson, 138 Ariz. 296, 304-05
(App. 1983); cf. State v. Bowles, 173 Ariz. 214, 216 (App. 1992) (finding
remand for clarification of sentence is appropriate where discrepancy
“cannot be resolved by reference to the record”). We therefore correct the

2 The court also imposed the following fees and assessments: a $250
DUI abatement fund fee, a DUI fine totaling $1372.50 including surcharges,
a $1500 prison construction operation fund fee, a $1500 public safety
equipment fund fee, a $20 probation assessment, a $20 time payment fee, a
$2 victim rights enforcement assessment, and a $13 criminal penalty to
benefit the Gilbert Police Department.

4
 STATE v. MOLINA
Decision of the Court

sentencing order and order of confinement to reflect that the sentence for
Count 2 is for 2.5 years pursuant to A.R.S. § 13-702(D).

¶12 Upon the filing of this decision, defense counsel shall inform
Molina of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Molina shall have thirty days
from the date of this decision to proceed, if he so desires, with an in propria
persona motion for reconsideration or petition for review.

CONCLUSION

¶13 For the foregoing reasons, we affirm Molina’s convictions and
correct the sentencing order and order of confinement as to Count 2.

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

5