State v. Marquez

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. MARIAH A. MARQUEZ, Appellant. No. 1 CA-CR 26-0072 FILED 11-06-2026 Appeal from the Superior Court in Maricopa County No. CR2024-000073-001 The Honorable Samin Adib, Commissioner VACATED AND REMANDED COUNSEL Arizona Attorney General’s Office, Tucson By Diane Leigh Hunt Counsel for Appellee Maricopa County Public Defender’s Office, Phoenix By Grahame McNevin Counsel for Appellant  STATE v. MARQUEZ Decision of the Court MEMORANDUM DECISION Judge D. Andrew Gaona delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Brian Y. Furuya joined. G A O N A, Judge: ¶1 Mariah Marquez pled guilty to an undesignated class-six offense. The superior court later designated that offense a felony during a hearing Marquez didn’t attend. Marquez now appeals from that designation. Because the record doesn’t show that Marquez had actual notice of—and was thus voluntarily absent from—the designation hearing, we vacate the felony designation and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶2 In January 2024, the State charged Marquez with nine felony drug offenses. Marquez pled guilty to one count of unlawful possession of drug paraphernalia, an undesignated class-six offense. As the plea agreement specified, the superior court placed Marquez on probation for 18 months. ¶3 Marquez’s plea agreement required that she complete substance abuse treatment. It also provided that “[t]he offense may not be designated a misdemeanor unless and until the defendant successfully completes probation.” ¶4 In December 2025, the Adult Probation Department (APD) recommended that the court designate Marquez’s conviction a felony because Marquez failed to schedule an assessment for substance abuse treatment and didn’t complete a treatment program. The superior court discharged Marquez from probation and set a review hearing on the felony designation. The superior court sent the minute entry setting the hearing to Marquez’s last known address. According to Marquez, the address on the minute entry had the incorrect zip code. ¶5 Marquez wasn’t at the designation hearing. Her counsel objected to proceeding without her present and explained that she was experiencing homelessness and didn’t have notice of the hearing. Marquez’s probation officer told the court he last had contact with Marquez in November 2025, she didn’t report to APD in December, and he couldn’t 2  STATE v. MARQUEZ Decision of the Court locate her despite visiting several residences where Marquez sometimes stayed. He also visited Marquez’s mother’s and grandmother’s homes; neither family member knew where she was. ¶6 The superior court found that the minute entry setting the hearing was sufficient notice because it was Marquez’s obligation to keep the court and APD updated of her whereabouts. Rejecting defense counsel’s argument that “actual personal service” is a requirement under the law, the superior court designated the offense as a felony. Marquez timely appealed, and we have jurisdiction under A.R.S. § 13-4033(A)(3). DISCUSSION ¶7 Marquez argues that the superior court’s felony designation violated her due process rights because she didn’t receive sufficient notice of the hearing. Marquez first contends she didn’t have notice because the court mailed the minute entry setting the designation hearing to an address with an incorrect zip code. She also posits that mail sent to a defendant’s last known address, with nothing else, is insufficient notice. The State counters that the superior court correctly found the notice here sufficient, and that even if it weren’t, Marquez’s absence from the designation hearing wasn’t prejudicial. We consider and reject the State’s arguments (in reverse order). I. Involuntary Absence or Insufficient Notice of a Designation Hearing Is Prejudicial. ¶8 We first address the State’s argument that Marquez wasn’t prejudiced even if she didn’t receive actual notice of the designation hearing. The State argues that Marquez’s absence couldn’t have prejudiced her because the result would have been the same even if she’d been there. ¶9 This argument turns on the plea agreement’s text: “The offense may not be designated a misdemeanor unless and until the defendant successfully completes probation.” Because Marquez didn’t complete probation, the State says, the superior court “lacked any discretion but to designate the offense a felony.” (Emphasis in original). As the State’s argument goes, prejudice was impossible because the felony designation was a “foregone conclusion.” ¶10 But precedent says otherwise. In State v. Benson, 176 Ariz. 281, 283 (App. 1993), we held that a defendant is entitled to “actual notice and a right to an opportunity to be heard with regard to the designation of his class 6 offense.” These are “procedural protections” that are “guaranteed 3  STATE v. MARQUEZ Decision of the Court by the federal and state constitutions” and A.R.S. § 13-604(A). Id. Benson emphasized A.R.S. § 13-604(A)’s discretionary nature; indeed, the statute provides: if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. (Emphasis added). “The statute, by its terms, confers discretion upon the court with respect to the ultimate designation of the offense.” State v. Smith, 166 Ariz. 118, 119 (App. 1990). Exercising this discretion requires that “both parties have the opportunity to present conflicting facts and equitable considerations.” Id. at 120. “Denial of notice and a hearing in this context would violate a defendant’s right to due process under the state constitution.” Benson, 176 Ariz. at 284. ¶11 According to the State, the designation hearing was a mere formality because (1) the superior court could only consider Marquez’s failure to complete probation and (2) the felony designation was the only possible outcome. This ignores the discretion § 13-604(A) grants the superior court. See State v. Cienfuegos, No. 2 CA-CR 2021-0017 at *3 (App. Oct. 19, 2021) (mem. decision) (probation performance is relevant, but “is not the only consideration for the trial court at a designation hearing.”). We thus reject the State’s argument that the superior court lacked “any discretion but to designate the offense a felony.” ¶12 Even if the superior court found that a misdemeanor designation wasn’t appropriate, its hands weren’t tied. After learning of Marquez’s homelessness, the probation officer’s unsuccessful attempts to locate Marquez, and counsel’s objection to the hearing based on the lack of notice, the superior court had at least three other options: (1) staying the hearing until a later date, (2) reinstating probation, or (3) leaving the designation open-ended. And, as we discuss below, the superior court could also have inquired into whether Marquez received actual notice and determined whether her absence was voluntary. 4  STATE v. MARQUEZ Decision of the Court ¶13 A felony designation has “significant consequences” for a defendant, State v. Delgarito, 189 Ariz. 58, 60 (App. 1997), and we reject the State’s characterization of Marquez’s hearing as “essentially pro forma” and the felony designation as a “foregone conclusion.” The State’s argument here tracks its position in Benson that a designation is a mere “ministerial formality.” Benson, 176 Ariz. at 284. But as we held in Benson, “[h]ow the offense is treated until the designation is made is not relevant to the question of how the designation ultimately is made.” Id. ¶14 No matter what the superior court ultimately decided, Marquez had a right to receive actual notice of the hearing and an opportunity to be heard before that decision. II. The Record Doesn’t Support the Superior Court’s Finding that Marquez had Actual Notice of Her Designation Hearing. ¶15 We review a superior court’s designation of a felony offense for abuse of discretion. State v. Pinto, 179 Ariz. 593, 597 (App. 1994). But the question here is different: whether Marquez had actual notice of—and was thus voluntarily absent from—the hearing during which the superior court designated her offense. As we recently held, our review of this question is de novo. State v. Gomez, No. 1 CA-CR 24-0659, 2026 WL 2178885, at *3 ¶¶ 15–17 (App. July 29, 2026). ¶16 Under Arizona Rule of Criminal Procedure (“Rule”) 9.1, “[t]he court may infer that a defendant’s absence is voluntary if the defendant had (1) actual notice of the date and time of the proceeding, (2) notice of the right to be present, and (3) notice that the proceeding would go forward in the defendant’s absence.” Marquez signed a release order warning that she must keep in contact with her attorney, appear at all court proceedings, and proceedings may go forward in her absence. This order satisfied Rule 9.1’s second and third requirements, but not the first. Gomez, No. 1 CA-CR 24-0659, at *4 ¶ 18. ¶17 As to “actual notice,” no one disputes the superior court sent notice to Marquez’s last known address. But nothing in the record clearly shows that Marquez had actual notice of the hearing. See State v. McCrimmon, 187 Ariz. 169, 171 (1996) (criminal proceedings conducted in the absence of a defendant are appropriate “only where the record clearly shows that the defendant has waived [their] right to be present.”). During that hearing, Marquez’s counsel objected to proceeding. He said there was “conflicting information . . . as to when she was actually given the instruction to enroll in residential treatment.” Marquez was on probation 5  STATE v. MARQUEZ Decision of the Court for a different offense, and counsel suggested there may have been confusion about when Marquez had to engage with the drug treatment program. Counsel also pointed to an “administrative error” that caused Marquez’s discharge to be delayed, arguably leading Marquez to have “even less time to actually engage” with the drug treatment program. Counsel also informed the court that Marquez was experiencing homelessness. The probation officer explained that he hadn’t had contact with Marquez since November and hadn’t been able to locate her after visiting several known addresses and her mother’s and grandmother’s homes. ¶18 Despite being presented with this information, the superior court inquired no further into whether Marquez received actual notice of the hearing or was voluntarily absent. Instead, the court found that notice was adequate (and, impliedly, that Marquez’s absence was voluntary) because the court sent the minute entry to Marquez’s last known address. But the record didn’t support this finding. See Gomez, No. 1 CA-CR 24-0659, at *5 ¶ 22 (“[T]he superior court errs in finding a defendant had ‘actual notice’ of a trial under Rule 9.1 when it fails to adequately inquire into, and make a record of, the facts surrounding the defendant’s actual knowledge of the correct date of the [proceeding].”).1 ¶19 Without additional inquiry, we “can[’t] determine” whether Marquez was voluntarily absent. Gomez, No. 1 CA-CR 24-0659, at *5 ¶ 22. As a result, the superior court’s “actual notice” finding was error and the designation that followed it cannot stand. Id. ¶ 23 (finding reversible error under similar circumstances). CONCLUSION ¶20 We vacate Marquez’s felony designation and remand for further proceedings. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 1 In fairness to the superior court, the designation hearing occurred on February 4, 2026, and we didn’t issue Gomez until several months later. 6