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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALLEN MAX TEPPER, Appellant.

No. 1 CA-CR 16-0294

Appeal from the Superior Court in Maricopa County

No. CR2013-004836-001

The Honorable Jay Ryan Adleman, Judge; Patricia Ann Starr, Judge; Hugh 

Hegyi, Judge; and Commissioners Nicole M. Brickner and Casey J. 

Newcomb

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant
STATE v. TEPPER

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Peter B. Swann and Judge Kent C. Cattani joined.

K E S S L E R, Judge:

¶1 Allen Tepper appeals his conviction and sentence for 

misdemeanor criminal damage. Tepper was held in custody for over two 

years in high security cells at the Fourth Avenue Jail during attempts to 

restore him to competency even though the initial charged offense could 

not have resulted in more than 1.5 years’ imprisonment, and the amended 

offense for which he went to trial was a misdemeanor. While we conclude 

that efforts should have been made to resolve Tepper’s competency to stand 

trial much earlier in time or to release him from confinement, we find no 

reversible error and accordingly affirm his conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY1

¶2 On the evening of December 9, 2012, a security guard saw a 

person lying on the grounds of the private property he was patrolling. After 

driving his golf cart within a few feet of the individual, the security guard

ordered the person to leave. There was no noticeable response, so the 

security guard walked over and “tapped” the person, who was Tepper,

with his foot. Again, there was no response. Fearing the person may be 

dead, the security guard immediately called the police. 

¶3 When officers arrived at the scene, they woke Tepper, 

informed him that he was trespassing on private property, and remained 

on-site until he left the premises. Meanwhile, the security guard resumed 

his patrol of the rest of the property. When the security guard later returned

to the original area, he noticed Tepper was standing across the street. The 

security guard then watched as Tepper picked up a large rock and threw it 

at a building, shattering a window. 

¶4 At that point, the security guard again requested police 

assistance. After the responding officers spoke with the security guard, 

 

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

verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
STATE v. TEPPER

Decision of the Court

3

they searched the nearby area and located a man who matched the 

description the security guard provided. The officers detained the man and 

the security guard positively identified Tepper as the man he had seen

throw a rock at the building. 

¶5 Approximately one year later, in December 2013, the State 

charged Tepper with one count of criminal damage in an amount of $2000 

or more but less than $10,000, a Class 5 felony. During the two-year period 

that followed, Tepper was cycled again and again through rounds of 

competency proceedings, and was ultimately found competent to stand 

trial in December 2015. Based on the Rule 11 examinations throughout this 

case, it appears Tepper was kept in the special management unit of the 

Fourth Avenue jail consisting of single inmate cells with restricted ability 

to leave the cell. 

¶6 In January 2016, the superior court granted Tepper’s motion 

to be released from custody, noting he had been held in custody “for more 

than 800 days,” which exceeded the maximum sentence he could receive if 

convicted as charged. Two weeks later, Tepper did not appear for trial, and 

the court directed the parties to proceed in absentia. Before trial 

commenced, the State moved to amend the indictment to allege a Class 1 

misdemeanor. Based on that amendment, to which defense counsel did not 

object, the court proceeded with a bench trial. See Ariz. R. Crim. P. 13.5(b) 

(allowing a charge to be substantively amended if the defendant consents 

to the amendment).

¶7 At trial, a representative of the property owner testified that 

the replacement cost for the damaged window was $2331. The court found 

Tepper guilty of misdemeanor criminal damage, and upon rendering its 

verdict, issued a warrant for Tepper’s arrest. Eventually Tepper was taken 

into custody, and the court then sentenced him to a term of 180 days, with 

credit for time served. We have jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2017), 13-4031 (2017), and 13-

4033(A)(1) (2008).2

DISCUSSION

I. Alleged Incompetence to Stand Trial

¶8 Tepper contends the superior court violated his right not to 

be tried while incompetent. Although Tepper conceded at oral argument 

 

2 We cite to the current version of statutes unless changes material to 

this decision have occurred.
STATE v. TEPPER

Decision of the Court

4

that he does not challenge the court’s Rule 11 findings, Tepper argues his 

conduct at the January 2016 hearing on his motion for release demonstrated 

that he was unable to understand the legal proceedings or assist counsel,

there was no reasonable basis to believe he could have been restored to 

competency, and therefore the court erred by failing to dismiss the criminal 

damage charge. 

¶9 “A person shall not be tried, convicted, sentenced or punished 

for an offense if the court determines that the person is incompetent to stand 

trial.” A.R.S. § 13-4502 (2010); see Ariz. R. Crim. P. 11.1. As defined by both 

statute and rule, a defendant is “incompetent to stand trial” when, “as a 

result of a mental illness, defect or disability,” he “is unable to understand”

the nature and object of the proceedings or “assist in [the] defense.” A.R.S. 

§ 13-4501(2) (2010); Ariz. R. Crim. P. 11.1. “The presence of a mental illness, 

defect or disability alone is not grounds for finding a defendant 

incompetent to stand trial.” Ariz. R. Crim. P. 11.1.

¶10 Due process and fundamental fairness require “that a 

defendant be armed with some minimal awareness of reality before the 

power of the state is exerted against him.” Bishop v. Superior Court, 150 Ariz. 

404, 407 (1986). Accordingly, even when a defendant has been found 

competent to stand trial, a court must remain “alert to circumstances 

suggesting a change that would render the accused unable to meet the 

standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181 

(1975). In the event circumstances arise calling a defendant’s competence

into question, due process requires the court “to raise the issue and hold [a] 

hearing sua sponte.” Bishop, 150 Ariz. at 407. 

¶11 The basis for Tepper’s argument that the charges should have 

been dismissed is that the superior court should have concluded his 

conduct at the release hearing showed he was not competent to stand trial 

and was not restorable to competency. We review a claim that a trial court 

should have sua sponte conducted competency proceedings for an abuse of 

discretion. State v. Kemp, 185 Ariz. 52, 67 (1996). Because the trial court has 

the opportunity to directly observe a defendant during court proceedings, 

we defer to the court’s competency finding absent a clear abuse of that 

discretion. State v. Glassel, 211 Ariz. 33, 44-45, ¶ 31 (2005); see Bishop, 150 

Ariz. at 409 (“On questions of competency to stand trial, not only is the 

judge a finder of fact, he is also a de facto witness who may take into 

consideration his own observations of the defendant.”). 

¶12 At the January 15, 2016 hearing on Tepper’s motion for 

release, the superior court inquired whether Tepper wished to proceed with 
STATE v. TEPPER

Decision of the Court

5

a bench or jury trial, and defense counsel stated that she and Tepper had 

repeatedly discussed the matter and he wished to have a jury trial. The 

court then addressed Tepper directly and asked whether he was 

“following” the conversation. After Tepper responded affirmatively, the 

court asked whether he wished to have a bench or jury trial and Tepper 

answered, “jury.” The court then discussed several scheduling and 

procedural issues with counsel and heard argument on Tepper’s motion for 

release. After granting the motion, the court admonished Tepper that he 

would be responsible for appearing at all subsequent hearings and advised 

that the court would issue a bench warrant in the event he failed to appear. 

The following exchange then occurred:

THE COURT: Do you understand that’s the case?

THE DEFENDANT: Honor Arizona. Honor Arizona.

[DEFENSE COUNSEL]: You understand that you have to be 

here at your next court date, correct? Say “yes.”

THE DEFENDANT: Honor Arizona.

¶13 After instructing Tepper on the conditions of his release and 

informing him of the time and place of trial, the court inquired whether 

Tepper would be able to “get [him]self there,” and Tepper again responded, 

“Honor Arizona.” Following an off-the-record discussion between Tepper 

and defense counsel, the court instructed defense counsel to have Tepper 

sign the release papers. Another off-the-record discussion took place

among the court, the deputies, defense counsel, and Tepper, in which 

“multiple people” spoke “simultaneously.” Tepper then stated “I don’t 

know what you’re saying.” 

¶14 After defense counsel and a deputy informed Tepper he 

needed to sign his name, Tepper addressed the court directly, stating “these 

people do not speak logically[,] their words are not consistent with the 

physical reality.” When the court then instructed Tepper that he needed to 

sign the form in order to be released, Tepper stated, “[y]ou’re as stupid as 

the rest of them. Blind, deaf, and ignorant.” Tepper explained that he could 

neither see “the pad” nor “physically . . . manage” a signature. Apparently 

referencing the “spit mask” Tepper was wearing, a deputy told Tepper he 

was not “going to take it all the way off,” and Tepper responded, 

“[i]gnorant, deaf, and blind. Blind, deaf, and ignorant. Blind, ignorant, and 

deaf. Those men, blind, ignorant.” Before being removed from the 

courtroom, Tepper said, “Arizona has no honor. Arizona has no honor. All 

your honor is ashes. All your honor is ashes.” 
STATE v. TEPPER

Decision of the Court

6

¶15 Viewing Tepper’s conduct and statements within the context 

of the entire proceeding, and deferring to the superior court’s ability to 

assess Tepper’s competence first-hand, we cannot say that Tepper’s 

presentation at the release hearing demonstrated such indicia of 

incompetence that sua sponte competency proceedings were required or 

the court should have concluded he was incompetent to stand trial and not 

restorable to competency. At the outset of the hearing, defense counsel 

stated that she and Tepper had repeatedly discussed Tepper’s trial 

preferences and, when addressed directly by the court, Tepper stated he 

understood the court’s discussion with defense counsel and confirmed that 

he wished to have a jury trial. Although Tepper later stated that he did not

know what people were saying, the record reflects that this statement 

immediately followed a conversation in which multiple people were 

speaking simultaneously. Given this context, Tepper’s declaration that he 

did not understand was not necessarily indicative of any type of 

impairment or dysfunction. Tepper also stated that he could not physically 

manage a signature when asked to sign his release forms and explained he 

could not see the pad. In light of the deputy’s response that he was not 

“going to take it all the way off,” seemingly referencing the spit mask 

Tepper was wearing, this statement likewise did not suggest an inability to 

understand what was being asked of him. We note that Tepper repeatedly 

said “honor Arizona” when asked whether he understood that he would be 

responsible for appearing at all future legal proceedings, a statement that

did not clearly respond to the questions posed. He also stated “Arizona has 

no honor” before being escorted out of the courtroom. Notwithstanding 

these remarks, Tepper’s other statements and conduct support a conclusion 

that he was aware of the proceedings, able to understand what was 

occurring, and capable of communicating with defense counsel and the 

court. Furthermore, the superior court specifically found at a prior 

competency hearing that Tepper’s “behavior in the courtroom appeared to 

be exaggerated and fake.” Therefore, on this record, we cannot say that the 

trial court abused its discretion by failing to dismiss the charges without 

prejudice. 

II. Adequacy of the Rule 11 Procedures

¶16 Tepper argues the State’s “Rule 11 procedures” were 

inadequate and failed to ensure that he was not tried while incompetent. 

He also asserts he did not receive any treatment for his mental condition, 

only “observation and delay.”

¶17 Because Tepper did not raise these claims in the superior

court, we review only for fundamental error and resulting prejudice. State 
STATE v. TEPPER

Decision of the Court

7

v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Due process requires that the 

State observe procedures adequate to protect a defendant’s right not to be 

tried while incompetent. Drope, 420 U.S. at 172. In Drope, the Court analyzed

whether a state’s statutory scheme addressing mentally-ill defendants 

satisfied the requirements of due process. Id. at 173. The Court concluded 

the statutes at issue, which required a judge to order psychiatric 

examination whenever there was reasonable cause to believe a defendant 

had a mental disease or defect excluding fitness and hold a hearing if the 

opinion relative to fitness was contested, were, on their face,

constitutionally adequate to protect a defendant’s right to a fair trial. Id. 

Notwithstanding the constitutional adequacy of the governing procedures, 

the Court further held that the defendant’s due process rights were 

nonetheless violated because the superior court failed to recognize 

information suggesting his incompetence, including evidence of a suicide 

attempt, and therefore did not order a pretrial psychiatric evaluation as 

mandated by statute. Id. at 173, 179-81.

¶18 Like the statutes at issue in Drope, Arizona’s statutory scheme 

requires a court to order a competency examination when “reasonable 

grounds exist,” and then “hold a hearing to determine a defendant’s 

competency to stand trial.” A.R.S. §§ 13-4503(D) (2017), 13-4510(A) (2017). 

Consistent with these statutes, in this case, the superior court repeatedly 

ordered competency examinations for Tepper, and then held evidentiary 

hearings to evaluate the medical opinion evidence. Therefore, the 

competency procedures governing this matter were constitutionally 

adequate.

¶19 To the extent Tepper also contends he was not provided 

treatment to restore his competency, the record reflects that the State 

offered Tepper treatment, which he refused. Equally important, as 

discussed supra ¶¶ 8-15, Tepper does not challenge the superior court’s 

finding that he was restored to competency as of December 15, 2015 and, 

on this record, there is no basis to conclude he was thereafter rendered 

incompetent to stand trial. Thus, Tepper has neither demonstrated that the 

State’s incompetency procedures violate due process nor that he was 

prejudiced by the procedures as applied in this case. 

¶20 Tepper also argues the court erred in keeping him confined 

for over two years through three rounds of attempts to restore him to 

competency, which was greater than any sentence of imprisonment either 

on the felony charge or the later misdemeanor charge. We agree that in this 

sense, the criminal justice system failed. At the request of his attorney, 

Tepper was referred for a Rule 11 examination within weeks of his 
STATE v. TEPPER

Decision of the Court

8

indictment and arrest in December 2013. In April 2014, the superior court 

found him incompetent to stand trial, but restorable and thus placed him in 

the county’s correctional services restoration program. This was the first 

referral to the program for Tepper in this case. Approximately two months 

later, the court found him to have been restored to competency. Two 

months later, in July 2014, defense counsel asked for a second round of Rule 

11 examinations, on which the State took no position on and which motion 

the court granted. Approximately six months later, in January 2015, slightly 

more than one year after his arrest, the court held an evidentiary hearing 

on competency, during which defense counsel argued Tepper was 

incompetent to stand trial and not restorable, but asked the court to send 

him back for more restoration as an alternative. The State successfully 

argued Tepper was competent to stand trial. Four months later, in April 

2015, defense counsel asked for a third round of Rule 11 examinations, 

which motion the State opposed. The superior court granted that motion 

and in September 2015, after almost two years of confinement and 

exceeding the time Tepper could have served if convicted of the felony, the 

court found that he was incompetent to stand trial but restorable, thus 

triggering a third round of restoration. During an evidentiary hearing in 

December 2015, over two years after Tepper’s arrest, defense counsel 

argued that Tepper was incompetent to stand trial and not restorable and 

asked the court to dismiss the charges given that Tepper had been in 

custody for more than he could have been sentenced if convicted of the 

felony. The court found that Tepper was competent to stand trial, but noted 

its dismay at the time Tepper had been incarcerated given the sentence he 

could have received and urged defense counsel to at least move to have 

Tepper released from custody pending trial. Defense counsel did so, and 

the court authorized Tepper’s release in January 2016. 

¶21 We recognize that Tepper’s competency to stand trial and 

ability to be restored to competency was a fluid situation. However, he was

being held in high security single inmate cells for restoration for over two 

years, longer than he could have been sentenced if convicted of the felony. 

At some earlier point in the proceedings, defense counsel could have 

alerted the prosecutor and the superior court to this fact and moved to have 

Tepper released pending trial, rather than go through a second and then a 

third round of restoration. Defense counsel could also have requested a less 

restrictive treatment alternative pursuant to A.R. S. § 13-4512(D) (2017)

(providing that the court shall select the least restrictive treatment 

alternative after considering factors such as the threat to public safety, the 

defendant’s cooperation during outpatient competency examinations and 

the defendant’s willingness to submit to outpatient competency restoration 

treatment). And the parties could have recognized and pointed out to the 
STATE v. TEPPER

Decision of the Court

9

court earlier in the proceedings that holding Tepper for a time approaching 

his maximum sentence was inconsistent with the statutory framework for 

Rule 11 proceedings and might not be serving the interests of justice. See

A.R.S. § 13-4511 (2009) (“If the court finds that a defendant is incompetent 

to stand trial, the court shall determine . . . 2. The maximum sentence the 

defendant could have received pursuant to [the criminal code].”); see also

Jackson v. Indiana, 406 U.S. 715, 738 (1972) (holding that at “the least, due 

process required that the nature and duration of commitment bear some 

reasonable relation to the purpose for which the individual is committed”). 

Without faulting counsel for taking advocacy positions they thought were 

appropriate, they could have done more to avoid what can, at best, be called 

a result not fit for civilized society.

3 Nevertheless, we do not find any 

reversible error requiring us to set aside Tepper’s conviction. Although 

Tepper argues that we can reverse his conviction because of his two-year 

incarceration, the two cases on which he relies involve criminal convictions 

that were reversed for other reasons and do not compel the conclusion he 

urges. See Rochin v. California, 342 U.S. 165, 172-74 (1952) (holding police 

cannot extract evidence from inside a person’s body by force); United States

v. Toscanino, 500 F.2d 267, 275-76 (2nd Cir. 1974), abrogated in part by In re 

Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 167 (2nd Cir. 

2008) (holding that foreign citizens are protected against unlawful searches 

and seizures by United States government in foreign countries).

¶22 We have found several cases reversing a conviction or 

approving dismissal of charges for due process violations in delays 

involving restoration to competency. However, those cases are 

distinguishable from the facts here. United States v. Dunn, 459 F.2d 1115, 

1117, 1121 (D.C. Cir. 1972) (reversing conviction on speedy trial grounds 

after eighteen months in restoration process, but noting that delays were in 

large part due to government and treatment center failures); State v. 

Rotherham, 923 P.2d 1131, 1149 (N.M. 1996) (remanding case for evidentiary 

hearing to determine if violation of state restoration statutes was result of 

government neglect or requested by defendant, noting that delay cause by 

defendant’s own initiative will not justify dismissal of charges). Here, the 

length of commitment was not caused by government neglect and at least 

in part was at the defendant’s own request. 

 

3 “The degree of civilization in a society can be judged by entering its 

prisons.” Fydor Dostoevsky, The House of the Dead (1853). 
STATE v. TEPPER

Decision of the Court

10

III. Trial in Absentia

¶23 Tepper argues he was denied his constitutional right to be 

present at trial. Claiming he was unable to voluntarily waive his presence, 

Tepper contends the superior court erred by proceeding in absentia.

¶24 On the first day of trial, Tepper did not appear. Defense 

counsel objected to trying Tepper in absentia and asserted Tepper was

incapable of voluntarily waiving his absence given his mental health. 

Noting medical professionals recently found Tepper competent to stand 

trial, the court found no good cause for his absence and directed the parties 

to proceed in absentia. When Tepper subsequently appeared for sentencing 

after being apprehended pursuant to a bench warrant, he did not offer any 

explanation for his failure to appear at trial. 

¶25 A defendant has a constitutional right to be present for trial, 

but may voluntarily relinquish the right to attend. State v. Garcia-Contreras, 

191 Ariz. 144, 146-47, ¶¶ 8-9 (1998). A trial court “may infer that a 

defendant’s absence is voluntary if the defendant had personal knowledge 

of the time of the proceeding, his right to be present, and the warning that 

the proceeding would take place in his absence if he failed to appear.” State 

v. Muniz-Caudillo, 185 Ariz. 261, 262 (App. 1996). “Once a defendant’s 

knowledge of the trial date is shown, the defendant has the burden of 

persuading the court that his absence was not voluntary.” State v. Tudgay, 

128 Ariz. 1, 3 (1981) (quotation omitted). Because “the existence of a waiver 

of the right to be present is basically a question of fact,” we review a trial 

court’s decision to proceed in absentia based on a defendant’s voluntary 

absence for an abuse of discretion. State v. Bishop, 139 Ariz. 567, 569 (1984). 

¶26 Applying these principles here, Tepper does not contest that 

the superior court properly notified him of the time and place of trial. 

Instead, he argues that when the court admonished him at the release 

hearing, he was unable to understand what was being said. As noted supra

¶¶ 8-15, however, Tepper’s statements and conduct at the hearing, viewed 

in the context of the entire proceeding, reflect that he understood what was 

going on and being asked of him. Moreover, the record reflects that Tepper 

was fully aware trial could proceed in his absence, as evidenced by his 

statement during a psychological evaluation that he wished to be tried in 

absentia. Given his failure to provide any explanation for his absence posttrial, Tepper has not overcome the presumption that he voluntarily 

absented himself from trial, and the court therefore did not abuse its 

discretion by proceeding in absentia. See State v. Cumbo, 96 Ariz. 385, 387 

(1964) (concluding trial court did not abuse discretion by trying the 
STATE v. TEPPER

Decision of the Court

11

defendant in absentia, noting the defendant failed to offer any basis for his 

absence in a motion for new trial or at sentencing). 

IV. Pretrial Detention

¶27 Tepper argues that both the nature and length of his pretrial 

confinement was unconstitutional.

¶28 As delineated by statute, a defendant may only directly 

appeal from: (1) a final judgment of conviction or verdict of guilty except 

insane, (2) an order denying a motion for a new trial, (3) an order made after 

judgment affecting the substantial rights of the party, and (4) a sentence on 

the grounds that it is illegal or excessive. A.R.S. § 13-4033. Accordingly, a 

challenge to the conditions of confinement, regardless of merit, may not be 

raised in a direct appeal. See In re Daniel A., 210 Ariz. 162, 166, ¶ 18 (App. 

2005) (“Whatever the merits of the contention that the conditions of . . .

confinement” are unconstitutional, “a direct appeal from commitment is 

not the appropriate method of challenge.”). While we have already 

discussed our dismay at the length of time Tepper was kept in solitary 

confinement during restoration efforts, the constitutionality of his detention 

is not properly before us, and we do not address its merits.

V. Post-trial Detention

¶29 Tepper argues he was subjected to cruel and unusual 

punishment when he was held in jail pending sentencing after his post-trial 

arrest. Specifically, and relying on Haygood v. Younger, 769 F.2d 1350, 1354 

(9th Cir. 1985), Tepper asserts his twenty-six day detention following his

arrest pursuant to a bench warrant was unconstitutional.

¶30 Because Tepper did not raise this claim in the superior court, 

we review only for fundamental error and resulting prejudice. Henderson, 

210 Ariz. at 567, ¶ 19. In Haygood, the court held that a detention “beyond 

the termination of a sentence could constitute cruel and unusual 

punishment if it is the result of deliberate indifference to the prisoner’s 

liberty interest” or a violation of due process. Haygood, 769 F.2d at 1354

(quotations omitted). 

¶31 In this case, the court issued a bench warrant after Tepper was 

tried and convicted in absentia on the amended charge of misdemeanor 

criminal damage. On March 17, 2016, approximately six weeks after the 

bench warrant issued, Tepper was apprehended by the State. His initial 

court hearing was scheduled for March 24, 2016, but was then rescheduled 

for March 30, 2016.
STATE v. TEPPER

Decision of the Court

12

¶32 Tepper refused transport and failed to appear at the March 

30, 2016 sentencing hearing, and the trial court rescheduled the hearing for 

April 6, 2016 and ordered that Tepper be transported to the hearing “by any 

means necessary.” Nonetheless, Tepper failed to appear at the April 6, 2016 

sentencing hearing, having been “removed from the courtroom twice” that 

morning “due to disruptive behavior.” Two days later, on April 8, 2016, 

Tepper appeared for sentencing, was sentenced to 180 days, and credited 

with 180 days’ presentence incarceration.

¶33 Unlike the circumstances in Haygood, in this case, Tepper was 

not detained beyond the termination of his sentence. To the contrary, he 

was held awaiting sentencing. Although Tepper correctly notes that his 

pretrial detention exceeded the maximum sentence the superior court could 

impose, the court nonetheless did not commit reversible error in requiring 

his presence at sentencing. See Ariz. R. Crim. P 26.9 (“The defendant . . . 

shall be present at sentencing.”). However, the court did have authority to 

waive that presence given the extraordinary circumstances in this case. 

State v. Ruiz, 236 Ariz. 317, 325, ¶ 30 (App. 2014). Indeed, counsel for 

Tepper and for the State could have urged the court to sentence Tepper after 

he was found guilty rather than wait for him to be arrested since his twoyear pre-trial incarceration vastly exceeded the six-month sentence he could 

have received for the misdemeanor. Nevertheless, given this record, 

including that the majority of Tepper’s post-trial detention was attributable 

to his own conduct, refusing transport and behaving in a manner that led 

to his removal from the courtroom, Tepper has not shown that the superior 

court committed error, much less fundamental, prejudicial error, by 

detaining him for sentencing.

CONCLUSION

¶34 For the foregoing reasons, we affirm Tepper’s conviction and 

sentence.