Summary
determining after remand that defendant's absence was voluntary
Summary of this case from State v. LoretoOpinion
No. 1 CA-CR 1940.
January 3, 1978. Rehearing Denied February 3, 1978. Review Denied February 28, 1978.
Appeal from the Maricopa County, Cause No. CR-89278, Philip W. Marquardt, J.
Bruce E. Babbitt, Arizona Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.
Steiger, Helm Kyle by Theodore L. Kyle, Tempe, for appellant.
SUPPLEMENTAL OPINION
Pursuant to the mandate of this Court, issued as a result of our initial opinion in this cause dated March 29, 1977, State v. Cook, 115 Ariz. 146, 564 P.2d 97 (Ct.App. 1977), hearings were held in the Superior Court of Maricopa County on June 9th and 10th, 1977. Supplemental memoranda have been filed with this Court, as well as the transcript of those proceedings, and the matter is now ripe for decision.
Although only limited additional facts were adduced at the hearing, the doubt this Court entertained as to the appellant's voluntary absence from the proceedings subsequent to his arraignment, including both the trial itself and the sentencing, have been removed.
It is certain that appellant was notified of the initial trial setting, as indicated in our prior opinion, State v. Cook, supra. It is also now clear that appellant made no effort to maintain contact with counsel subsequent to the arraignment, did not in fact show up at the courthouse on the day originally set for trial, even though the case had actually been set over, and continued to avoid all efforts of counsel to apprise him of the date of the subsequent trial, which proceeded without his presence. We hold the evidence supports appellant's waiver of his appearance at trial and sentencing. Rule 9.1, Rules of Criminal Procedure, 17 A.R.S.; State v. Goldsmith, 112 Ariz. 399, 542 P.2d 1098 (1975).
The judgment of conviction and the sentence thereon are affirmed.
DONOFRIO and OGG, JJ., concurring.