State v. Martinez-Tapia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JESUS RAMON MARTINEZ-TAPIA, JR., Appellant.

No. 1 CA-CR 21-0173
FILED 9-20-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR201780539
The Honorable Debra R. Phelan, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

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

Kenneth S. Countryman PC, Tempe
By Kenneth S. Countryman
Counsel for Appellant
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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.

F U R U Y A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for Appellant Jesus Ramon
Martinez-Tapia, Jr. advised this court that he has found no arguable
question of law after searching the entire record and asks this court to
conduct an Anders review. Martinez-Tapia was given the opportunity to file
a supplemental brief but did not do so. This court has reviewed counsel’s
brief and the record and has found no reversible error as to Martinez-
Tapia’s convictions. However, he was not given full credit for his
presentence incarceration. Accordingly, Martinez-Tapia’s convictions are
affirmed, and his sentences are modified.

FACTS AND PROCEDURAL HISTORY

¶2 “We view 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 (App. 2015) quoting
State v. Valencia, 186 Ariz. 493, 495 (App. 1996).

¶3 On August 30, 2017, around 10:35 p.m., Officer Richard Hicks
with the Cottonwood Police Department responded to the Chaparral Bar
after receiving a report of disorderly conduct by a patron, Martinez-Tapia.
Upon arrival, a bartender asked for assistance in removing Martinez-Tapia
from the premises. Officer Hicks spoke with Martinez-Tapia, observing
“issues with his balance,” “red, watery eyes,” “very slurred speech,” and
“detect[ing] an odor of an unknown alcoholic beverage coming from his
person.” Given his observations, Officer Hicks told Martinez-Tapia he
needed to leave the property on foot, which he did.

¶4 About 15 minutes later, patrons in the bar parking lot
informed Officer Hicks that Martinez-Tapia had driven off northbound
onto Main Street in a white pickup that was missing its tailgate. Officer
Hicks set out in that direction in his marked vehicle. He soon saw a truck
matching the descriptions given by the patrons weaving within its lane,
leaving its lane of travel a few times, and leaving the roadway at one point.

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Officer Hicks initiated a stop and Martinez-Tapia pulled over, but not
without almost losing control of the vehicle after running into some
overgrown vegetation before pulling back onto the pavement.

¶5 After Officer Hicks told Martinez-Tapia to shut off the engine
and exit, he observed the same signs and symptoms of alcohol consumption
as Martinez-Tapia had back at the bar. Martinez-Tapia refused to undergo
field sobriety tests and was placed under arrest for suspicion of DUI. Officer
Hicks transported Martinez-Tapia to the police station to continue the DUI
investigation, where he refused to consent to a blood draw. Officer Hicks
obtained and served a search warrant to draw Martinez-Tapia’s blood at
the station, but the officer phlebotomist was unable to locate a vein to do
so. Officer Hicks then transported Martinez-Tapia to Verde Valley Medical
Center in Cottonwood, where his blood was drawn around 1:45 a.m. the
following morning by a certified phlebotomist technician.

¶6 Analysis of the blood draw by a Department of Public Safety
criminalist revealed Martinez-Tapia had a blood alcohol concentration
(“BAC”) of 0.178 at the time his blood was drawn. Retrograde calculations
provided a BAC-figure within two hours of driving based on the
approximate start time of Martinez-Tapia’s driving and factoring in the
time of his blood draw. That calculation revealed a BAC between .18 and
.19 within two hours of Martinez-Tapia’s driving (approximating his drive
time at 11:12 p.m.). Martinez-Tapia’s driver’s license had been previously
suspended and revoked when he committed the offenses. The Arizona
Motor Vehicle Division (“MVD”) had earlier sent notices of such
suspension via first class mail to the address provided by Martinez-Tapia
to the MVD. See Arizona Revised Statutes (“A.R.S.”) § 28-3318.

¶7 The State charged Martinez-Tapia with two counts of
aggravated DUI. See A.R.S. §§ 28-1381(A)(1)–(2), -1383(A)(1). Before trial,
the State also dismissed without prejudice charges for possession of
marijuana and drug paraphernalia. The superior court held a voluntariness
hearing and a hearing pursuant to Arizona Rule of Evidence 609, both
before trial, but their outcomes are immaterial, given that the State did not
introduce any statements made by Martinez-Tapia at trial or seek to
impeach his testimony with prior convictions.

¶8 The court denied Martinez-Tapia’s motions in limine
concerning his in-bar behavior and portions of audio/video recordings
captured via police dash camera. And after an evidentiary hearing, the
court partially denied Martinez-Tapia’s other motions in limine concerning
his refusal to submit to field sobriety testing or breath testing, wherein the

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court found that such refusals could be presented at trial but that the State
could not elicit testimony or present evidence surrounding Martinez-
Tapia’s request to speak with an attorney.

¶9 Martinez-Tapia did not appear for trial. Before taking witness
testimony, the superior court issued a statewide warrant for Martinez-
Tapia’s arrest and set a secured bond, but he still failed to appear. Because
Martinez-Tapia’s absence appeared voluntary, the court proceeded with
trial in absentia. After a two-day trial, a jury found Martinez-Tapia guilty
as charged. The court denied Martinez-Tapia’s motion under Rule 20 of the
Arizona Rules of Criminal Procedure.

¶10 During sentencing proceedings, the court found Martinez-
Tapia had at least two historical prior felony convictions, and he was
sentenced to presumptive concurrent terms of 10-years’ imprisonment for
each count and awarded 70 days of pre-incarceration credit for each count.
Martinez-Tapia timely appealed.

DISCUSSION

¶11 A defendant is entitled to credit for “[a]ll time actually spent
in custody pursuant to an offense until the prisoner is sentenced to
imprisonment for such offense.” A.R.S. § 13–712(B). Failure to award full
credit for presentence incarceration constitutes fundamental error. State v.
Cofield, 210 Ariz. 84, 86 ¶ 10 (App. 2005) citing State v. Ritch, 160 Ariz. 495,
498 (App. 1989).

¶12 The record shows Martinez-Tapia was arrested and taken into
custody regarding this matter first on August 31, 2017, though he was also
released that same day. He was next arrested on January 30, 2021, after he
was pronounced guilty following his trial in absentia. A bail hearing was
set for February 8, 2021, at which the court ordered Martinez-Tapia held
without bail and remanded to custody to await sentencing in this matter.
The court originally set a sentencing hearing for March 8, 2021, but
ultimately sentencing did not occur until April 19, 2021. Thus, Martinez-
Tapia was incarcerated for a total of 80 days before sentencing. However,
he was credited with only 70 days of presentence incarceration.

¶13 We have authority to modify a sentence to reflect the correct
amount of presentence incarceration credit. State v. Long, 207 Ariz. 140, 148
n.6 ¶ 42 (App. 2004) (citing A.R.S. § 13–4037(B)); see also Ariz. R. Crim. P.
31.17(b). Accordingly, Martinez-Tapia’s sentences are modified to reflect
credit for 80 total days of presentence incarceration.

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¶14 No other fundamental error is discernable from this record.
See Leon, 104 Ariz. at 300 (“An exhaustive search of the record has failed to
produce any prejudicial error.”). Martinez-Tapia was represented by
counsel at all stages of the proceedings, except during a pretrial conference
that was continued because he sought new counsel. The record further
shows Martinez-Tapia was present for all critical stages, except during his
two-day jury trial, in which his presence was voluntarily waived—having
had actual notice of the date and time of trial, notice that a warrant could
be issued for his arrest if he failed to appear, and notice that trial would go
forward in his absence. See Ariz. R. Crim. P. 9.1.

¶15 The record contains substantial evidence supporting the
jury’s verdicts. Other than as discussed above, the sentence imposed was
within statutory limits. See A.R.S. §§ 28-1381(A)(1)–(2), -1383(A)(1), (O)(1),
and 13-703(J). In all other respects, from the record presented, all
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure.

CONCLUSION

¶16 We have read and considered counsel’s brief and have
searched the record provided for reversible error and have found none.
Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Accordingly, Martinez-Tapia’s convictions are affirmed. His sentences are
modified to reflect presentence incarceration credit of 80 days for each
count.

¶17 Upon the filing of this decision, counsel is directed to inform
Martinez-Tapia of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).
Martinez-Tapia shall have 30 days from the date of this decision to proceed,
if he desires, with a pro se motion for reconsideration or petition for review.

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

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