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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EDDIE BOJORQUEZ, Appellant.

No. 1 CA-CR 22-0338

Appeal from the Superior Court in Yavapai County

No. V1300CR201180048

The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Ashley Torkelson Levine

Counsel for Appellee

Zickerman Law Office, Flagstaff

By Adam Zickerman

Counsel for Appellant

FILED 5-30-2023
STATE v. BOJORQUEZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which 

Judge Michael J. Brown and Judge Michael S. Catlett joined.

M c M U R D I E, Judge:

¶1 Eddie Bojorquez appeals from the revocation of his probation

and the resulting prison sentence, arguing there was an unreasonable delay 

between the revocation petition and the later hearing. We affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In June 2011, Bojorquez pled guilty to several criminal 

offenses, including burglary, theft, and criminal damage. As a result, he was 

sentenced to concurrent terms of imprisonment, the longest of which was 

six years. The court also suspended his sentence and placed him on a 

five-year probation term upon his release from prison. One of the 

conditions of his probation was that he “maintain a crime-free lifestyle by 

obeying all laws, and not engag[e] or participat[e] in any criminal activity.”

¶3 While on probation in 2019, Bojorquez was arrested following

an incident where he trespassed onto the property of his ex-girlfriend and 

refused to leave. Then, in August 2020, Bojorquez was arrested under

federal authority and charged with smuggling undocumented immigrants 

into the United States. Following these incidents, the State petitioned to 

revoke Bojorquez’s probation on September 1, and he was arraigned on

September 8. A probation violation management conference was set for 

December.

¶4 But the defense requested and was granted a continuance at 

the management conference, and nearly two years of postponements 

followed until Bojorquez’s violation hearing, which did not occur until June 

2022. During that time, the defense requested a continuance at least five 

times. On other occasions, Bojorquez failed to appear for COVID-related 

reasons or errors in the defense counsel’s calendar. The State, by contrast,

1 We view the facts in the light most favorable to sustaining the 

judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
STATE v. BOJORQUEZ

Decision of the Court

3

alleges that it “was ready to proceed at every hearing, telephonically or 

otherwise.”

¶5 At the violation hearing, Bojorquez moved to dismiss the 

revocation petition, noting that the petition “has been hanging over his 

head for nearly two years.” And Bojorquez argued that the delay in the 

proceedings denied him “expeditious disposition” and deprived him of the 

opportunity for the sentence to run concurrently with his federal sentence, 

which he had now served. The superior court denied the motion, 

explaining:

We’ve been trying to get Mr. Bojorquez before this Court for 

years and he has been represented by counsel each time. The 

Court has been extremely frustrated with defense counsel . . . 

because he did not get Mr. Bojorquez here. I took him at his 

word that he could not make Mr. Bojorquez available and 

continued to waive his presence. . . . I see no prejudice at all 

to the defendant, so I am going to deny the motion.

¶6 The court found that Bojorquez violated the conditions of his 

probation, revoked his probation, and sentenced him to concurrent prison 

terms, the longest of which was three and a half years. Bojorquez appealed, 

and we have jurisdiction under Article 6, Section 9 of the Arizona 

Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(4).

DISCUSSION

¶7 We review the superior court’s denial of a motion to dismiss 

a probation revocation petition for an abuse of discretion. See State v. Adler, 

189 Ariz. 280, 282 (1997). An unreasonable delay in the proceedings may be 

grounds to bar the State from revoking probation. See, e.g., id. at 285. We 

determine reasonableness by assessing the “length of the delay, reasons for 

the delay, and prejudice to the defendant.” State v. Flemming, 184 Ariz. 110, 

115 (1995). We will not set aside a probation revocation for unreasonable 

delay unless the delay prejudiced the defendant. Adler, 189 Ariz. at 284.

¶8 First, Bojorquez asserts “[w]aiting two years for a Probation 

Revocation Hearing is unreasonable.” But reasonableness is determined not 

only by the duration of the delay but also by the reasons for the delay and 

the prejudice to the defendant. Flemming, 184 Ariz. at 115; see also 

Commonwealth v. Young, 396 A.2d 741, 742 (Pa. Super. 1978) (cited in

Flemming, 184 Ariz. at 115) (“The requirement of reasonable promptness is 

not a prophylactic rule, violation of which is determined solely by the

length of time between the conviction and the hearing. . . . Instead, the 
STATE v. BOJORQUEZ

Decision of the Court

4

question is whether the delay was reasonable under the circumstances of 

the specific case.”).

¶9 In claiming unreasonableness, Bojorquez asserts the superior 

court failed to abide by the timing requirement of Arizona Rule of Criminal 

Procedure 27.8(b)(1). But the Rule directs that “[t]he court must hold a 

hearing . . . no more than 20 days after the revocation arraignment, unless 

the probationer in writing or on the record requests, and the court agrees, to set the 

hearing for another date.” Ariz. R. Crim. P. 27.8(b)(1) (emphasis added). Thus, 

the Rule itself provides an exception to the timing requirement if there are 

“reasons for the delay.” See Flemming, 184 Ariz. at 115.

¶10 Next, Bojorquez makes little argument that the “reasons for 

the delay” should warrant the dismissal of the revocation petition. Instead, 

he contends only that “the prosecution has the burden to prove a valid and 

important reason for the delay” and that the State “could have made a 

reasonably good faith effort” to obtain Bojorquez’s presence.

¶11 This argument is meritless. It is undisputed that Bojorquez

requested multiple continuances, including at the conference immediately

preceding the violation hearing. Indeed, as the State identifies in its brief, 

“[F]rom the point at which the hearing was supposed to take place, the 

delay was either directly attributable to the defense or agreed to by the 

defense.” And Bojorquez offers no argument or evidence to rebut the State’s 

claim that it was “ready to proceed at every hearing, telephonically or 

otherwise.”

¶12 Bojorquez relies on Adler, arguing that delay was 

unreasonable here because “neither [the] rules, nor the Constitution, 

contemplates that probation revocation proceedings will begin after a 

lengthy prison term ends.” Adler, 189 Ariz. at 284 (quoting Flemming, 184 

Ariz. at 116–17). But the “reasons for the delay” factor of Adler and Flemming 

distinguishes those cases from this case. The defendants in those cases 

“requested a speedy disposition of the probation violation charges.” Adler, 

189 Ariz. at 283.

¶13 The record here contains no such request; it contains the 

opposite. Unlike Adler, this petition “has been hanging over [Bojorquez’s] 

head for nearly two years” only because Bojorquez himself has taken steps 

to hold it there. Compare Adler, 189 Ariz. 280, with State v. McGhee, 1 CA-CR 

16-0817, 2017 WL 3184399, at *2, ¶¶ 9–10 (Ariz. App. July 27, 2017) (mem. 

decision) (due process rights not violated when a defendant did not attempt 

“to have his probation violation adjudicated sooner”).
STATE v. BOJORQUEZ

Decision of the Court

5

¶14 Bojorquez also cites State v. Fahringer, 136 Ariz. 414 (App. 

1983), arguing that the superior court abused its discretion—not by denying 

him a speedy disposition but by granting his requests for continuance. But

Fahringer does not apply here. In Fahringer, we held that the superior court 

abused its discretion by continuing a probation revocation hearing until 

after a separate trial, the date for which had not even been set. 136 Ariz. at 

415. By contrast, as the State points out here, “there remained a finite date 

set in the future, unlike in Fahringer where a future trial date had not been 

set at all.” We decline to extend Fahringer to mean that any grant of 

continuance to accommodate another proceeding is an abuse of discretion.

¶15 Finally, Bojorquez argues that the State’s delay prejudiced 

him by eliminating the opportunity for the Arizona and federal prison 

sentences to run concurrently. To be sure, Arizona courts have recognized 

this lost opportunity as sufficient prejudice to justify the dismissal of a 

revocation petition. See, e.g., Adler, 189 Ariz. at 284–85; see also Flemming, 184 

Ariz. at 116–17 (sentences from different counties). But the superior court 

did not abuse its discretion by determining that this lost opportunity, alone, 

does not outweigh the other reasonableness factors.

CONCLUSION

¶16 We affirm.