State v. Mendoza

• Decision Date: 21 November 2019
• Docket Number: No. 1 CA-CR 18-0512,1 CA-CR 18-0512
• Citation: 455 P.3d 705,248 Ariz. 6
• Parties: STATE of Arizona, Appellee, v. Vincent MENDOZA, Appellant.
• Court: Arizona Court of Appeals

248 Ariz. 6

455 P.3d 705

STATE of Arizona, Appellee,

v.Vincent MENDOZA, Appellant.

No. 1 CA-CR 18-0512

Court of Appeals of Arizona, Division 1.

FILED November 21, 2019

Arizona Attorney General’s Office, Phoenix, By Eric Knobloch Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix, By Paul J. Prato Counsel for Appellant

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.

McMURDIE, Judge:

¶1 Vincent Mendoza appeals his conviction and sentence for one count of aggravated driving or actual physical control of a vehicle while under the influence of intoxicating liquor or drugs, a class 4 felony. We hold: (1) a superior court judge who, in violation of Arizona Rule of Criminal Procedure ("Rule") 17.4(a)(2), participates in settlement discussions between a defendant and the State without the parties’ consent, errs by thereafter presiding over that defendant’s trial and sentencing; (2) such error is fundamental if the totality of the circumstances raises a presumption of judicial vindictiveness; and (3) if the presumption is unrebutted by the State, it requires the defendant to be either resentenced or retried before a different judge. Because we find an unrebutted presumption of judicial vindictiveness exists regarding Mendoza’s sentence, we affirm his conviction but vacate his sentence and remand for resentencing before a different superior court judge.

FACTS AND PROCEDURAL BACKGROUND¹

¶2 On a night in October 2016, Officer Jaime Cole, a patrol officer with the Goodyear Police Department, noticed Mendoza’s vehicle traveling northbound at speed slower than the posted speed limit. Cole decided to follow the car and soon saw that Mendoza was having trouble staying in his lane. Mendoza nearly struck a curb while executing a lane change and crossed over a solid white fog line. Based on these observations, Cole initiated a traffic stop. Mendoza was seated in the driver’s seat. As Cole spoke with Mendoza, she noticed Mendoza’s eyes were red, bloodshot, and watery; he had difficulty multi-tasking; and the odor of alcohol was coming from inside the vehicle. Mendoza admitted to Cole that he drank six beers that night and had an ignition interlock device installed in the vehicle "to prevent this," and added that a friend had blown into the machine to allow him to drive the car. Eventually, Cole arrested Mendoza for driving under the influence.

¶3 At the police station, Mendoza underwent blood and breath testing. The blood testing returned a blood alcohol concentration of 0.128. The breath testing returned results of 0.119 and 0.117. After the screening, Mendoza waived his Miranda² rights, and Officer Cole interviewed him. During the interview, Mendoza again admitted drinking at least six beers earlier that night but denied that he felt the effects of the alcohol or that he was impaired to the slightest degree.

¶4 The State charged Mendoza with one count of driving or actual physical control while under the influence of intoxicating liquor and under a court order to equip a certified ignition interlock device ("Count 1") and one count of driving or actual physical control while he had an alcohol concentration of 0.08 or more in his body within two hours of the time of driving and while under a court order to equip a certified ignition interlock device ("Count 2"), both class 4 felonies. In March 2018, during a status conference before the assigned trial judge, the parties indicated to the court that the State had offered a plea agreement with that day as the deadline for Mendoza to accept or reject it. Mendoza’s counsel stated that Mendoza "wanted to discuss the case with the Court." The court agreed and proceeded to inform Mendoza of the charges, their elements, and that the plea offer was for nine years’ imprisonment.

¶5 Upon further questioning, the State asserted that because Mendoza had two prior historical felony convictions for aggravated driving under the influence and aggravated assault involving a vehicle, he would be sentenced as a category three repetitive offender if convicted, Ariz. Rev. Stat. ("A.R.S.") § 13-703(C), and that under A.R.S. § 13-703(J), he would face a sentencing range of 6 to 15 years. The court then made the following statements to Mendoza:

Okay. So, Mr. Mendoza, after trial you would face 6 to 15. That six is completely, 100 percent unreasonable. There is not a judge here that will give you six, period. The fact that you’ve already done seven and a half on a vehicular aggravated assault ... means someone’s going to give you more. Okay? And seven and a half on a vehicular aggravated assault and then coming back with essentially what looks like a third felony DUI type activity, when you already assaulted somebody, like—no.

* * *

Your chances of getting nine after trial are literally about zero. Your chances of getting 10 are extremely low. Your chances of getting above 10 like the 12, 13, 14, 15, that’s—it’s [a] better chance you get that than you get ten or nine for sure.

I can’t imagine anyone giving you less than the presumptive when you’ve already been to prison for seven and a half years related to a vehicular assault and you've got another Agg DUI and you’re here for another Agg DUI, and you go to trial because when you go to trial, you also lose the mitigation of acceptance of responsibility, remorse, saving taxpayer time, court time, saving money for the courts. You lose all of that that goes in the good pile.

Okay. When you go to trial, that just doesn’t exist. Okay? So when you go to trial, you have less in the good pile. When we’re weighing the good and the bad, and if you have less in the good pile, the stuff in the bad pile weighs heavier. Does that make sense?

The court continued to discuss Mendoza’s case with him, including the sentence he would receive if he went to trial and was convicted, with little intervention from either Mendoza’s counsel or the State. The following colloquy occurred during this conversation:

THE COURT: If you are convicted at trial, you will get more than nine years. So your plea offer may save you some time. It might not be what you want, but they’re not going to give you something better.

[MENDOZA]: I’m by myself, Your Honor, so if I get 10 years, I get 10 years. ... I have no family. When my mom died my family just—just disowned me and not supported me.

THE COURT: And your time is not worth anything? You’d rather just spend your years in prison?

[MENDOZA]: I was an electrician for—I was an electrician for the prison so I worked the whole time I was there.

THE COURT: Oh, so you like prison?

[MENDOZA]: I don’t like it, but I don’t like—just I’m putting pretty much a gun to my head. Either do or die.

THE COURT: No, you’re right. You’re pretty much in the same spot as everybody else in here when they have to decide on a plea.

[MENDOZA]: I made a mistake, Your Honor. I can’t change the past. But unfortunately—

THE COURT: Well, you can’t but you can try to minimize the damage. But if you want to go to prison for longer, you let me know at sentencing because I’ll be happy—

[MENDOZA]: I don’t.

THE COURT: —to send you for 15 and have no problem with it.

[MENDOZA]: I don’t want to, that’s why I (indiscernible) and maybe do some understanding. I’m not saying that I’m not guilty. I’m just understanding—

THE COURT: I’m telling you after trial, your chances of getting below 10 are about zero. And not just from me, from about anyone.

At the end of the hearing, Mendoza rejected the State’s plea offer, and the case went to trial. The same superior court judge who participated in the March 2018 ad hoc settlement conference presided over the trial.

¶6 After a four-day trial, the jury found Mendoza guilty of Count 1 but acquitted him of Count 2. Before Mendoza’s sentencing, the Maricopa County Adult Probation Department prepared a presentence report that recommended Mendoza be sentenced to the presumptive term of imprisonment, 10 years. The court found that Mendoza had four prior felony convictions—two of which were historical—and proceeded to sentencing. In considering the mitigators at issue in the case, the court acknowledged Mendoza had sought treatment while awaiting trial but explained that:

There is no acceptance of responsibility. There is no remorse. There is none of the mitigators that you get when you take a plea. I explain to people that ... means that just doesn’t exist in that pile any longer. There is no punishment for taking a case to trial. However, I hear a lot more in the trial than I ever hear when somebody does a plea.

The court found as aggravating circumstances that Mendoza committed the offense a short time after being released from prison, he circumvented the ignition interlock device to drive his vehicle, and he was driving with a passenger in his car. The court also found that Mendoza had previously been convicted of aggravated driving under the influence within the ten years preceding the date of the offense, a statutory aggravator. A.R.S. § 13-701(D)(11). The court concluded the maximum sentence was appropriate and sentenced Mendoza to 12 years’ imprisonment with 315 days’ presentence incarceration credit. After rendering its sentence, the court stated:

The aggravators are just exceptional and my concern for the safety of the community given what I heard during the trial is —I’m very concerned. So based on that I don’t think I can give any less than [12 years].

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

¶7 Mendoza’s appellate counsel filed a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon , 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Counsel asked this court to search the record for arguable issues. See Penson v. Ohio , 488 U.S. 75, 109...