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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC WARREN SANDERS, Appellant.

No. 1 CA-CR 18-0073 

Appeal from the Superior Court in Maricopa County

No. CR 2016-002901-001

The Honorable Lauren R. Guyton, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Carlos D. Carrion

Counsel for Appellant

FILED 1-29-2019
STATE v. SANDERS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Eric Sanders timely appeals from his convictions and 

sentences for seven counts of taking the identity of another, each a class four 

felony, and seven counts of theft of a credit card, each a class five felony. 

After searching the record on appeal and finding no arguable question of 

law that was not frivolous, Sanders’ counsel filed a brief in accordance with 

Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297

(1969), asking this court to search the record for reversible error. This court 

granted counsel’s motion to allow Sanders to file a pro per supplemental 

brief, but Sanders did not do so. After reviewing the entire record, we find 

no reversible error and, therefore, affirm Sanders’ convictions and 

sentences.

BACKGROUND1

¶2 In June 2015, Postal Inspector Palmeri received a report that 

residential mailboxes at a Tempe apartment complex had been broken into. 

As part of his investigation, Palmeri searched the post office fraud database 

system to ascertain if there were any complaints associated with that 

address. Palmeri found an online complaint submitted by Barclaycard

associated with the address of the compromised mailboxes. Palmeri 

contacted Barclaycard to inquire about the facts underlying the complaint. 

He learned that a resident of the apartment complex ordered a Barclaycard 

credit card online but did not receive it in the mail. The resident contacted 

Barclaycard and discovered unauthorized fraudulent transactions on his

credit card, leading to Barclaycard filing the online complaint with the post 

office. Barclaycard provided Palmeri a list of the unauthorized transactions.

¶3 Included among the unauthorized transactions were 14

transactions from a Safeway store located in Tempe, Arizona that spanned 

 

1 We view the facts in the light most favorable to sustaining the jury’s 

verdict and resolve all reasonable inferences against Sanders. State v. 

Guerra, 161 Ariz. 289, 293 (1989). 
STATE v. SANDERS

Decision of the Court

3

a seven-day period. Palmeri requested information from Safeway

regarding the unauthorized transactions on the resident’s credit card. Using 

the store number where the card was used, the credit card number, and the 

date, time, and dollar amounts of the transactions, a Safeway employee

provided Palmeri with video surveillance and still images from the store 

and the log for those transactions. The employee also provided documents 

showing that the Safeway loyalty club card that was used in conjunction 

with the stolen credit card was registered to Sanders. The video surveillance 

showed Sanders making purchases with the stolen credit card and exiting 

the store with bags of groceries.

¶4 Sanders was charged with seven counts of taking the identity 

of another and seven counts of theft of a credit card. Sanders was out of 

custody on his own recognizance and failed to appear at the final trial 

management conference. The court issued a bench warrant for his arrest.

Sanders also failed to appear for trial. His counsel informed the court that 

he had not responded to her calls and she did not know where he was. The 

court noted that at the comprehensive pretrial conference, Sanders was 

informed by the judge that if he failed to appear, the trial could proceed in 

his absence. The court found that Sanders voluntarily absented himself and

proceeded with the trial in his absence. The jury unanimously found 

Sanders guilty on all 14 counts. The state alleged three aggravating 

circumstances. The jury found only one aggravating circumstance beyond 

a reasonable doubt for all 14 counts: that Sanders committed the offenses as 

consideration for the receipt, or in the expectation of the receipt, of anything 

of pecuniary value.

¶5 Sanders was arrested in Mississippi on November 22, 2017 

and appeared for sentencing on January 24, 2018. The prosecution and 

defense agreed that Sanders would be sentenced as a Category 2 repetitive 

offender, based on the multiple dates of offenses for counts 5 through 14. 

Sanders received the presumptive sentence for each count, to be served 

concurrently: 2.5 years for counts 1 and 3; 1.5 years for counts 2 and 4; 4.5 

years for counts 5, 7, 9, 11, and 13; and 2.25 years for counts 6, 8, 10, 12, and 

14. The court awarded 63 days of presentence incarceration credit.2

 

2 Sanders should have received only 62 days of presentence 

incarceration credit. The superior court’s error is in Sanders’ favor and is, 

therefore, not fundamental because it did not prejudice him. See State v. 

Escalante, 245 Ariz. 135, 141, ¶ 21 (2018) (explaining that fundamental error 

is error that prejudices the defendant and goes to the foundation of the case, 
STATE v. SANDERS

Decision of the Court

4

DISCUSSION

¶6 We have reviewed the entire record for reversible error and 

find none. See Leon, 104 Ariz. at 300. We conclude the court did not err by 

trying Sanders in absentia. Under Arizona Rule of Criminal Procedure 9.1, 

“a defendant may waive the right to be present at any proceeding other 

than sentencing by voluntarily absenting himself or herself from it,” and 

“[t]he court may infer that an absence is voluntary if the defendant had 

personal notice of the time of the proceeding, the right to be present at it, 

and a warning that the proceeding would go forward in his or her absence 

should he or she fail to appear.” Ariz. R. Crim. P. (2017). Sanders’ final 

release order, signed by him, stated that if he failed to appear, proceedings

could go forward in his absence. Additionally, at the comprehensive 

pretrial conference, the judge informed Sanders that if he failed to appear 

for trial, the State had the option of proceeding with the trial without him 

being present. Sanders received a fair trial. He was represented by counsel 

at all stages of the proceedings. 

¶7 The evidence presented at trial was substantial and supports 

the verdict. The jury was properly comprised of 12 members and the court 

properly instructed the jury on the elements of the charges, Sanders’ 

presumption of innocence, the State’s burden of proof, and the necessity of 

a unanimous verdict. The court also instructed the jury not to consider 

Sanders’ absence from the trial. The superior court received and considered 

a presentence report, Sanders was given an opportunity to speak at 

sentencing, and his sentences were within the range of acceptable sentences 

for his offense.

CONCLUSION

¶8 We affirm Sanders’ convictions and sentences. Unless defense 

counsel finds an issue that may be appropriately submitted to the Arizona 

Supreme Court, his obligations are fulfilled once he informs Sanders of the 

outcome of this appeal and his future options. See State v. Shattuck, 140 Ariz. 

 

takes away a right essential to a defense, or is so egregious that the person 

cannot possibly have received a fair trial).
STATE v. SANDERS

Decision of the Court

5

582, 584-85 (1984). Sanders has 30 days from the date of this decision to 

proceed, if he wishes, with a pro per motion for reconsideration or petition 

for review.