State v. Dudley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK ANDREW DUDLEY, Appellant.

No. 1 CA-CR 22-0456
FILED 2-15-2024

Appeal from the Superior Court in Yavapai County
No. V1300CR202080703
The Honorable Krista M. Carman, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee

Law Office of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant

Mark Andrew Dudley, Douglas
Appellant
 STATE v. DUDLEY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 Mark Andrew Dudley appeals his convictions and sentences
for one count of driving or actual physical control while under the influence
of intoxicating liquor or drugs, one count of driving while license is
revoked, and one count of aggravated actual and physical control with an
alcohol concentration of 0.08 or above while his license to drive was
revoked. After searching the entire record, Dudley's defense counsel
identified no non-frivolous arguable question of law. In accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asks this Court to search the record for fundamental
error. Dudley filed a supplemental brief in propria persona, which we have
considered. Finding no reversible error, we affirm Dudley's convictions
and sentences and modify the written sentencing order to reflect that
Dudley was sentenced as a category three repetitive offender.

FACTS AND PROCEDURAL BACKGROUND

¶2 In November 2020, a couple towing their recreational vehicle
("R.V.") took a wrong turn down a dead-end road. Shortly after, Dudley's
truck stopped behind the couple, effectively blocking them from backing
out of the road. The couple then called law enforcement to help them back
out of the road.

¶3 When police arrived, they discovered Dudley asleep in the
truck's driver's seat, with the ignition on, the transmission in drive, and his
foot on the brake. Police assisted Dudley out of the truck and could smell
a "strong odor of alcohol" emanating from Dudley and the truck. Dudley
refused the police's request that he perform a field sobriety test. Police
arrested Dudley on suspicion of driving while under the influence. Police
searched the truck and found a half-empty beer and a large knife. Police
brought Dudley to the police station, where he submitted to two
breathalyzer tests showing he had a blood alcohol content of .120 and .112.

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¶4 The State charged Dudley with aggravated driving or actual
physical control while under the influence of intoxicating liquor or drugs,
a class 4 felony, under A.R.S. §§ 28-1381(A)(1) and 28-1383(A)(1) ("Count
1"); aggravated driving or actual physical control while under the influence
of intoxicating liquor or drugs, a class 4 felony, under A.R.S. §§
28-1381(A)(2) and 28-1383(A)(1) ("Count 2"); and misconduct involving
weapons, a class 4 felony, under A.R.S. § 13-3102(A)(4) ("Count 3"). The
State subsequently moved to sever Count 3 and proceed to trial on Counts
1 and 2.

¶5 In July 2022, the superior court conducted a four-day jury
trial, during which the couple towing the R.V., police officers, the quality
assurance officer for the breathalyzer, and the custodian of records for the
Arizona Motor Vehicle Department ("MVD") testified for the prosecution.
Dudley's spouse, brother-in-law, friend, and a forensic engineer testified for
the defense.

¶6 The couple testified they saw one person in the truck and no
one exit. Police on the scene testified that they found Dudley asleep behind
the wheel, with his foot on the brake, while the truck was running and in
drive. The jury also heard testimony that Dudley smelled of alcohol;
marijuana odor emanated from the truck; officers found a partially empty
beer can in the truck; and Dudley's breathalyzer test showed he had a blood
alcohol content of .120 and .112. Officers also testified that the truck
appeared to move under its own power when it was loaded onto the tow
truck. The quality assurance officer testified that the breathalyzer had been
calibrated and was working properly. The MVD custodian of records
testified that Dudley had a revoked license at the time of the incident and
Dudley had proper notice of the revocation.

¶7 Dudley's brother-in-law and friend testified they had seen
Dudley earlier that day, knew Dudley did not have a license, and his spouse
always drove. Dudley's spouse testified that only she drove the truck that
evening until it broke down and could no longer move. After the truck
broke, Dudley's spouse said she and Dudley had an argument, Dudley
frustrated her, and she left the truck, leaving it and Dudley where the police
found it. The forensic engineer testified that the damage he observed on
the truck's brake system could render the vehicle immobile.

¶8 The jury found Dudley guilty of the lesser included offenses
for Count 1, driving or actual physical control while under the influence
and driving with a revoked license, and guilty of Count 2, aggravated
actual and physical control with an alcohol concentration of 0.08 or above.

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At the sentencing hearing, the court found Dudley was a category three
repetitive offender and sentenced him to a mitigated six-year term for
Count 2. The court also sentenced Dudley to 52 days in jail for the lesser
included offenses in Count 1, all to run concurrently with the sentence
imposed for Count 2.

¶9 Dudley timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶10 Dudley raises several issues in his supplemental brief, but
none were raised at trial. Thus, we review only for fundamental error. See
State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) ("Because [defendant] did
not object . . . , we will not reverse unless the court committed error that
was both fundamental and prejudicial."). Fundamental error goes to the
"foundation of the case," takes away "a right essential to his defense" and is
"of such magnitude that the defendant could not possibly have received a
fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v.
Hunter, 142 Ariz. 88, 90 (1984)). The defendant bears the burden of proof
and "must establish both that fundamental error exists and that the error in
his case caused him prejudice." Id. at 567, ¶ 20. "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 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).

I. Illegal Stop and Seizure.

¶11 Dudley first argues the police violated his constitutional
rights by disturbing him on "private property," opening the truck door
"only" because of his "prior incidents" with police, and violating his Fourth
and Fourteenth Amendment rights.

¶12 Because Dudley did not file a motion to suppress, there was
neither an evidentiary hearing nor a ruling by the court on these issues. A
defendant waives a challenge to the admissibility of evidence when he fails
to challenge it below. See State v. Tison, 129 Ariz. 526, 535 (1981) (refusing
to consider grounds for suppression not raised at suppression hearing). We
recognize that Arizona courts have, as a matter of discretion, sometimes
reviewed suppression issues for fundamental error. See State v. Newell, 212
Ariz. 389, 398, ¶ 34 (2006) (noting that courts "may" review a suppression
argument raised for the first time on appeal for fundamental error). But,
given the absence of factual findings below, we lack evidence and context

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from which we could conduct fundamental-error review. See State v. Brita, 158 Ariz. 121, 124 (1988) ("It is highly undesirable to attempt to resolve
issues for the first time on appeal, particularly when the record below was
made with no thought in mind of the legal issue to be decided."). As a
result, we find this issue waived.1

II. Intoxication Evidence.

¶13 Next, Dudley argues that he was not given a chance to obtain
exculpatory evidence because a phlebotomist was unavailable to draw his
blood when police administered his breathalyzer.

¶14 "[A] defendant has the right to seek a private blood draw if
the State does not administer a blood test." State v. Olcan, 204 Ariz. 181, 183,
¶ 8 (App. 2003); see A.R.S. § 28-1388(C) ("The person tested shall be given a
reasonable opportunity to arrange for any physician, registered nurse or
other qualified person of the person's own choosing to administer a test or
tests in addition to any administered at the direction of a law enforcement
officer."). If the defendant affirmatively requests a blood test, law
enforcement may not interfere with his efforts to obtain one. Olcan, 204
Ariz. at 184, ¶ 12. But Dudley does not argue he requested an independent
test, only that he could not obtain "exculpatory evidence" because there was
not a phlebotomist at the police station. Nothing in the record suggests that
Dudley requested an independent blood test, and therefore, we find no
fundamental error in the use of the breathalyzer results as evidence of his
intoxication. See Van Herreweghe v. Burke, 201 Ariz. 387, 390, ¶ 10 (App.
2001) (rejecting argument that defendant did not know how to arrange an
independent test from jail and noting "[t]he difficulties of obtaining an
independent test do not violate a defendant's rights if those difficulties are
not created by the State").

1 Although the issue is waived on appeal, it may be raised in a timely
request for post-conviction relief. See Ariz. R. Crim. P. 32; State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (noting that ineffective assistance of counsel claims
should be raised in Rule 32 proceedings). A full record is necessary to
decide such issues and we do not suggest that counsel was ineffective in
failing to file a motion to suppress. See Kimmelman v. Morrison, 477 U.S. 365,
375 (1986) (stating that a defendant must "prove that his Fourth
Amendment claim is meritorious" to show ineffective assistance of
counsel); State v. Fillmore, 187 Ariz. 174, 181 (App. 1996) (noting that counsel
may fall below professional norms by failing to file a motion to suppress if
the evidence was "clearly of questionable validity").

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¶15 Dudley also argues the breath sample operational checklist
was unsigned by either the officer administering the test or Dudley and
should have been inadmissible at trial. But there is no requirement that the
operational checklist be signed to be admissible at trial. See A.R.S. §
28-1323(A) (providing five requirements for an administered breathalyzer
test to be admissible at trial). Thus, there was no error in its admission, let
alone fundamental error.

III. Speedy Trial.

¶16 Dudley argues that the State deprived him of his right to a
speedy trial due to "collusive acts by county of Yavapai." Dudley presents
no citations to the record to support his claim.

¶17 Generally, a defendant who is out of custody while awaiting
trial must be tried "[n]o later than 180 days after arraignment." Ariz. R.
Crim. P. 8.2(a)(2). Delays "caused or resulting from" the defendant's
"absence or incompetence" are excluded time from the 180-day
requirement. Ariz. R. Crim. P. 8.4(a).

¶18 Dudley was arraigned on January 27, 2021. On April 19,
Dudley failed to appear at a pretrial hearing, and the court issued a warrant
for his arrest. Later that same day, Dudley appeared before the court at a
settlement conference and rejected a plea offer. The court then quashed the
warrant and set trial for September 8, 2021, 225 days after Dudley's
arraignment. Dudley did not object to the trial date setting.

¶19 On August 16, the Office of Public Defenders reassigned
Dudley different counsel, and a week later, Dudley moved to continue the
trial. The court granted the motion, vacated the September trial date, and
ordered "time is excluded." On November 8, 2021, the court rescheduled
trial for July 26, 2022.

¶20 A defendant waives his speedy trial rights under Arizona
Rules of Criminal Procedure ("Rule") 8.2 "by not objecting to the denial of
speedy trial in a timely manner." State v. Spreitz, 190 Ariz. 129, 138 (1997).
But, even if we assume the court violated Dudley's Rule 8.2 speedy trial
rights in setting the September 2021 trial date, he would not be entitled to
relief because he has not demonstrated that the delay prejudiced him. See
State v. Vasko, 193 Ariz. 142, 147, ¶¶ 20–22 (App. 1998) (noting that a
defendant must show he was prejudiced by a Rule 8.2 delay for there to be
reversible error). As to the July 2022 trial date, a "defendant may not obtain
a continuance and then assert, on appeal, failure to comply with the rule as

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ground for retrial." State v. Gretzler, 126 Ariz. 60, 71 (1980). Thus, Dudley's
Rule 8.2 rights were not violated.

¶21 For similar reasons, we do not find a speedy trial violation
under the United States or Arizona Constitution. See State v. Wassenaar, 215
Ariz. 565, 571, ¶ 18 (App. 2007) (including prejudice as the most important
of four factors for a constitutional speedy trial violation).

IV. Prosecutorial Misconduct.

¶22 Dudley contends the prosecutor was seen outside the
courtroom within earshot of the jury stating, "she is obviously lying."
Dudley's citations to support this claim are either not related to
prosecutorial misconduct, are not related to the alleged incident, or are not
in the record. And nothing in the record suggests the prosecutor committed
any misconduct.

V. Improper Testimony.

¶23 Dudley argues that the MVD custodian's testimony violated
"fundamental fairness" by stating he had a suspended license from a prior
conviction. Dudley specifically cites this line of questioning as improper:

Q. And based off your review and that report, can you tell us
what was the status of the driver's license on November 7,
2020.

A. The driver status on that date of violation was revoked.

Q. And does it say why?

A. Looks like a revocation stemming from a violation back on
April 11, 2006, conviction for a --

Q. We don't want to get into his conviction. But there was
some violation?

A. That is correct. Yes.

¶24 Here, any inadmissible testimony does not rise to the level of
fundamental error and the "conviction" testimony was not mentioned again
during trial. See State v. Wood, 180 Ariz. 53, 65 (1994) (finding that admitting
one erroneous statement did not deprive the defendant of a fair trial
"[g]iven the clear quantum of evidence supporting" his conviction); State v.
Stuard, 176 Ariz. 589, 601–02 (1993) (finding no fundamental error from a

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"short remark" about defendant's prior imprisonment when "no one made
any further mention of Defendant's criminal record to the jury").

VI. Double Jeopardy.

¶25 Next, Dudley argues that his convictions for both
misdemeanor driving or actual physical control while under the influence
pursuant to A.R.S. § 28-1381(A)(1), and aggravated driving or actual
physical control while under the influence pursuant to A.R.S. §§
28-1381(A)(2) and 28-1383(A)(1), constitute double jeopardy. Our supreme
court has considered and rejected this argument. Although a violation of
subsections (1) and (2) of A.R.S. § 28-1381(A) can arise "out of one act, the
statutes describe two separate and distinct offenses." Anderjeski v. City Ct.
of Mesa, 135 Ariz. 549, 550 (1983). "It is possible to have less than 0.[08] blood
alcohol content and still be under the influence of intoxicating liquor." Id.
Likewise, "a person may have over 0.[08] per cent blood alcohol content and
still not have his driving abilities significantly impaired." Id. at 551.
Therefore, Dudley was not punished twice for the same offense, and his
convictions do not violate double jeopardy protections. Id.

VII. Right to Petition.

¶26 Dudley also argues his "right to petition was abridged" when
the court denied his motion for an evidentiary hearing. Dudley filed the
motion after sentencing and four months after he filed a notice of appeal.
The court treated the motion as a request for post-conviction relief, noted
that this appeal was pending, and took no action on the motion. We find
no error. See Lightning A Ranch Venture v. Tankersley, 161 Ariz. 497, 499
(App. 1989) ("A trial court loses jurisdiction of a case while an appeal is
pending, except with regard to matters in furtherance of the appeal.").

VIII. No Fundamental Error.

¶27 In addition to evaluating the arguments raised in Dudley's
supplemental brief, we have conducted an independent review of the
record. Our review revealed no fundamental error. See Leon, 104 Ariz. at
300. All proceedings were conducted in compliance with the Rules, and the
record reveals that Dudley was present at all critical stages of the
proceedings and represented by counsel. See Ariz. R. Crim. P. 6.1, 19.2. The
State presented sufficient evidence from which the jury could determine
Dudley's guilt beyond a reasonable doubt. See State v. West, 226 Ariz. 559,
562, ¶ 16 (2011). The jury was comprised of eight members. See A.R.S. § 21-
102(B). The superior court properly instructed the jury on the presumption
of innocence, the burden of proof, and the elements of the charged offenses.

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The court received a presentence report. Ariz. R. Crim. P. 26.4. The court
afforded Dudley an opportunity to speak at sentencing, imposed sentences
within the statutory limits, and stated on the record the evidence and
factors it considered in imposing the sentences. See A.R.S. §§ 13-701, -703;
Ariz. R. Crim. P. 26.9–26.10.

IX. Clerical Error.

¶28 The court's written sentencing order incorrectly indicated that
Dudley was sentenced to Count 2 as a "nonrepetitive offender" for a
mitigated six-year term of imprisonment. Aggravated driving or actual
physical control with an alcohol concentration of 0.08 or above is a class 4
felony. A.R.S. § 28-1383(O)(1). At the sentencing hearing, the court found
that Dudley had been convicted of five previous felonies and was a
category three repetitive offender. See A.R.S. § 13-703(J) (establishing a
mitigated six-year prison term for category three repetitive offenders
convicted of a class 4 felony). We correct the written sentencing order to
reflect that Dudley was sentenced as a category three repetitive offender.
See State v. Hanson, 138 Ariz. 296, 304–05 (App. 1983) ("Where there is a
discrepancy between the oral sentence and the written judgment, the oral
pronouncement of sentence controls.").

CONCLUSION

¶29 We modify the sentencing order to correct the above error and
affirm Dudley's convictions and sentences. Upon the filing of this decision,
defense counsel shall inform Dudley 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). Dudley shall have 30 days from the date of this decision to proceed,
if he desires, with a pro per motion for reconsideration or petition for
review.

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

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