State v. George

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH VRAIL GEORGE, Appellant.

1 CA-CR 24-0491
1 CA-CR 24-0492
(consolidated)
FILED 12-11-2025

Appeal from the Superior Court in Maricopa County
No. CR2017-157187-001
No. CR2020-001749-001
The Honorable Utiki Spurling Laing, Judge Pro Tempore

AFFIRMED IN PART; DISMISSED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph E. Begun
Counsel for Appellee

Bain & Lauritano PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. GEORGE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Kenneth Vrail George appeals from his conviction and
sentence for aggravated driving under the influence (“DUI”), and his
probation revocation and the resulting sentence for a previous offense. We
affirm the superior court’s finding that George voluntarily absented himself
from the aggravated DUI and probation revocation proceedings, causing a
delay in sentencing of over 90 days. We thus dismiss his appeal challenging
the conviction and revocation determination. Because George raises no
issue about the resulting sentences, we affirm the sentences imposed.

FACTS AND PROCEDURAL BACKGROUND

¶2 In December 2017, a grand jury indicted George on one count
of sex trafficking, a class 2 felony; six counts of pandering, a class 5 felony;
one count of receiving the earnings of a prostitute, a class 5 felony; one
count of transporting persons for prostitution, a class 5 felony; and one
count of possession or use of marijuana, a class 6 felony. He entered into a
plea agreement in which he pled guilty to one count of sex trafficking and
one count of pandering, and the court dismissed the other charges with
prejudice. In May 2018, the court sentenced George to a term of 1.5 years’
imprisonment on the pandering conviction and placed him on two years’
supervised probation for the sex trafficking conviction.

¶3 In April 2020, a year into his probation, George’s probation
officer reported that she had lost contact with him and that his whereabouts
were unknown. The State petitioned to revoke his probation, alleging he
traveled to California without permission and failed to obtain approval
before changing his residence. The superior court issued a warrant for
George’s arrest. He was arrested on the warrant in August 2020 and
released.

¶4 The next month, the State filed a supplemental petition to
revoke probation after obtaining an indictment for two counts of
aggravated DUI and one count of possession or use of marijuana (later

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dismissed by the court). George failed to appear at his September 3, 2020,
arraignment, and the court issued a bench warrant. A little over a week
later, George was arrested, and he appeared at the rescheduled arraignment
on September 18.

¶5 At his arraignment, George was released from custody
pending trial on the DUI charges. In the release order, the superior court
informed George that his trial was scheduled to begin in January 2021.
George attended several hearings after his release, but later stopped
attending hearings and failed to contact his attorney, pretrial services, or
the probation department. After various continuances, the trial began in
absentia in October 2021 after the court found that George had voluntarily
absented himself. The jury failed to reach a verdict, and the court declared
a mistrial.

¶6 In early 2022, the court held a second trial, again in absentia,
given George’s failure to appear. The jury did not return a verdict on one
DUI count but found George guilty on the other count. At the close of the
trial in early February 2022, the court affirmed George’s outstanding bench
warrant.

¶7 In September 2023, George wrote to the court stating he was
serving a 364-day sentence in Nevada. In December 2023, he was arrested
in Arizona, and the court scheduled a sentencing hearing. Before the
sentencing hearing, the State submitted evidence showing that George was
not incarcerated in Nevada during either trial. In August 2024, the court
held a sentencing hearing. For the DUI conviction, the court sentenced
George to the presumptive sentence of four and a half years’ imprisonment,
with 281 days’ presentence incarceration credit. On the probation
revocation, the court sentenced him to a consecutive mitigated term of three
years’ imprisonment with 149 days’ presentence incarceration credit.1
George appealed, and the State moved to stay and remand the case for a
voluntariness hearing on his absence at trial. This court granted the motion

1 The presentence report noted that George received 141 days of
presentence incarceration credit for the underlying offense on the probation
violation and therefore should only receive 93 days of credit for these
offenses. But the presentence report and the court included the 141 days in
calculating his presentence credit for the probation violation. Because the
State did not appeal this error and the error runs in favor of the defendant,
we do not disturb the sentence. See State v. Dawson, 164 Ariz. 278, 283-84
(1990).

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to stay. At the hearing on the limited remand, the court found that George
had voluntarily absented himself from the proceedings, creating a delay of
more than 90 days between his conviction and sentencing, thereby waiving
his right to appeal conviction issues.

¶8 George appealed under Arizona Revised Statutes (“A.R.S.”)
§§ 12-120.21(A)(1) and 13-4033(A)(1) and Article 6, Section 9, of the Arizona
Constitution. We affirm the superior court’s determination that George
voluntarily absented himself from the proceedings, causing his sentencing
to be delayed more than 90 days. Thus, George has waived his right to
appeal conviction issues under A.R.S. § 13-4033(C), and we are without
authority to hear that portion of the appeal.

DISCUSSION

¶9 On appeal, George raises two arguments: (1) that the superior
court abused its discretion by not vacating the verdict because his absence
at trial was involuntary, and (2) that the superior court abused its discretion
by denying a requested jury instruction. The State argues that under A.R.S.
§ 13-4033(C), we lack jurisdiction for either claim because George
voluntarily delayed his sentencing for more than 90 days.

¶10 By statute, “[a] defendant may not appeal . . . [from a
conviction] if the defendant’s absence prevents sentencing from occurring
within ninety days after conviction and the defendant fails to prove by clear
and convincing evidence at the time of sentencing that the absence was
involuntary.” A.R.S. § 13-4033(C); see also Ariz. R. Crim. P. 26.9 (The
defendant must be present at sentencing.). The State bears the burden of
proving the defendant knowingly, voluntarily, and intelligently waived his
right to appeal. State v. Brearcliffe, 254 Ariz. 579, 584, ¶ 16 (2023). To meet its
burden, the State must prove that the defendant was advised that, if he
delayed sentencing by more than 90 days after his conviction, he would
waive his right to appeal. Id. Implicit in the State’s burden is proving that
the defendant delayed his sentencing by more than 90 days. See id. To
overcome the statutory waiver shown by the State, a defendant must prove
by clear and convincing evidence that his or her absence was involuntary.
A.R.S. § 13-4033(C).

¶11 If the court finds the defendant’s absence was voluntary, the
waiver finding and sentencing issues are the only issues the defendant may
raise on direct appeal. See A.R.S. § 13-4033(C); Brearcliffe, 254 Ariz. at 584,
¶ 19 (A reviewing court may examine the record on appeal to determine
whether a defendant’s absence was knowing and voluntary.); State v.

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McNulty, ___ Ariz. ___, ___, ¶ 11-12, 573 P.3d 581, 586 (App. 2025) (This
court reviewed the superior court’s finding that the defendant’s absence
delaying sentencing was voluntary, and determined it was involuntary.).

¶12 We first review whether the State met its burden of proving
that George’s absence delayed the sentencing more than 90 days. Because
his absence began before trial, we must determine whether his absence at
trial was voluntary; if so, the 90-day period began on the date of his
conviction. See A.R.S. § 13-4033(C).

A. George Voluntarily Absented Himself from His Trials.

¶13 “The right to be present at trial is protected both by the Sixth
Amendment to the federal constitution as incorporated and applied to the
states through the Fourteenth Amendment, and by article II, section 24 of
the Arizona Constitution.” State v. Levato, 186 Ariz. 441, 443 (1996); see also
United States v. Gagnon, 470 U.S. 522, 526 (1985) (The right to presence is
rooted largely in the Confrontation Clause of the Sixth Amendment, or,
when a defendant is not confronting witnesses or evidence, the Due Process
Clause of the Fifth Amendment.); cf. Ariz. R. Crim. P. 9.1 (explaining how
the right to be present may be waived). By rule, “in a felony or
misdemeanor trial [the defendant] has the right to be present at every stage
of the trial, including, if applicable, the impaneling of the jury, the giving of
additional instructions under Rule 22, and the return of the verdict.” Ariz.
R. Crim. P. 19.2.

¶14 But a defendant may waive the right to be present. Ariz. R.
Crim. P. 9.1, 19.2. Under Rule 9.1, a defendant waives his or her right to be
present at any proceeding if his or her absence is voluntary. The court may
infer the defendant’s absence is voluntary if he or she had notice of the date
and time of the proceeding, of the right to be present, and that the
proceeding would go forward in his or her absence. Ariz. R. Crim. P. 9.1.
But “[t]here is no requirement that a defendant receive notice of his rights
after every continuance,” and “[e]ven if [the defendant] never actually
received notice of the continued trial date, it [is] the [defendant’s] duty
under the conditions of his release to maintain contact with the court
and/or his attorney as to the trial date and any changes in that date.” State
v. Tudgay, 128 Ariz. 1, 3 (1981) (quotations omitted) (cleaned up). Should a
defendant later fail to receive notice of the trial date, his absence would still
be voluntary because he has violated those terms. Id.

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1. George Had Proper Notice.

¶15 When the record shows that the defendant had personal
notice of the time of trial and that the trial would proceed in his absence,
the defendant bears the burden of proving his absence was involuntary.
State v. Sainz, 186 Ariz. 470, 473, n.2 (App. 1996). We first examine whether
the record supports that George had notice.

¶16 The arraignment minute entry states that George was present
for the group advisement. The minute entry also reflects that the
advisement warned that the trial would proceed in his absence. This record
thus established that George received the advisement that he could be tried
in absentia. See Burri v. Campbell, 102 Ariz. 541, 543 (1967) (“It is a settled
principle of law that official acts of public officers are presumed to be
correct and legal, in the absence of clear and convincing evidence to the
contrary.”).

¶17 George argues the advisement minute entry is generic and
does not show whether it was actually read to him. But the minute entry
clearly states that George was present for the group advisement, and he
provides no factual basis for his argument that this “generic language” in
the minute entry was not provided during the advisement. We will not
presume the court committed error. State v. Saiz, 3 Ariz. App. 223, 225 (1966)
(“We will presume no error where none has been indicated, nor will we go
behind the record in an attempt to discover error.”). George fails to show
error.

¶18 Other evidence in the record also supports the court’s finding.
All four release orders contained a waiver advisement. George asserts that
none of these orders and entries were provided to him, but the record
includes two release orders that George signed in 2017, when he was
charged with the underlying offenses. Given the number of documents that
include the advisement, there is sufficient evidence to support the finding
that George had notice. While George contends that notice was deficient
because the court never sent him notice of his second trial date, George had
a duty under his release conditions to maintain contact with his attorney,
including any changes to that date. See Tudgay, 128 Ariz. at 3.

2. George Did Not Prove His Absence from the Trial Was
Involuntary.

¶19 Because George had notice that the trial could proceed
without him, the burden shifted to him to prove his absence was
involuntary. Sainz, 186 Ariz. at 473, n.2. At sentencing, George argued he

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left the state for a family emergency and did not return to Arizona because
when he was released from custody in Nevada, he was told no warrant was
evident to the local authorities, and he had also heard that because of the
COVID-19 Pandemic, cases were no longer being prosecuted. None of these
reasons establishes an involuntary absence. See Diaz v. United States, 223
U.S. 442, 458 (1912) (Absconding while on bail throughout the trial may not
operate as a defense for absence.); State v. Tacon, 107 Ariz. 353, 355-57 (1971)
(Defendant’s absence was voluntary when he failed to appear because he
had no funds to travel for his trial.); State v. Superior Court (Ochoa), 183 Ariz.
139, 145 (App. 1995) (When a defendant absconds and fails to communicate
with his attorney, his absence is voluntary.).

¶20 And contrary to George’s argument, the court did not have to
hold an evidentiary hearing just because he claimed he was arrested in
Nevada and did not waive his right to be present. See State v. Goldsmith, 112
Ariz. 399, 400 (1975) (Defendant was not entitled to an evidentiary hearing
to rebut the findings of the trial court that his absence at trial was
voluntary.); State v. Fristoe, 135 Ariz. 25, 35 (App. 1982) (No abuse of
discretion when the court refused to hold an evidentiary hearing on
voluntariness when the defendant was out of contact with his attorney.).

¶21 George’s reliance on Sainz is misplaced. In Sainz, the court
held that the superior court should have held an evidentiary hearing
because the defendant presented evidence that he had been incarcerated
during his trial. 186 Ariz. at 472-73. Here, the record shows that George was
out of custody during both trials. Thus, George’s absence during his trials
was voluntary, and his absence delaying sentencing began on his
conviction date, February 7, 2022.

B. George Waived His Right to Appeal Under A.R.S. § 13-4033(C).

¶22 Finally, we address the superior court’s determination that
George’s absence, causing a delay in sentencing, was voluntary. In
Brearcliffe, our supreme court held that the superior court must allow the
defendant to present evidence showing that the absence was involuntary.
Brearcliffe, 254 Ariz. at 584, ¶ 17.

¶23 At the Brearcliffe hearing, the court allowed George to present
evidence. The superior court determined that George had notice that he
would lose his rights if he delayed sentencing. In finding George failed to
prove his absence was involuntary, the court noted that George himself
testified “that he could have asked to come back to Arizona but failed to do
so.” George’s trial concluded on February 7, 2022, and the court updated

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the existing bench warrant. George was released from custody on January
6, 2022. George was not taken into custody again until March 20, 2023, 406
days after his conviction. Thus, George was out of custody for well over
ninety days between his conviction and his arrest in Arizona on December
4, 2023. As a result, the court did not err by finding George’s absence
voluntary. We lack the authority to review George’s jury instruction claim.
See A.R.S. § 13-4033(C); State v. Bolding, 227 Ariz. 82, 84-85, 88, ¶¶ 3-4, 20
(App. 2011) (When a defendant has voluntarily delayed sentencing by more
than 90 days, this court is without jurisdiction to decide conviction issues
raised on the direct appeal.).

CONCLUSION

¶24 We affirm the superior court’s finding that George voluntarily
delayed his sentencing by more than 90 days and dismiss the appeal
challenging his conviction. We affirm the sentences imposed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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