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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

EDWARD GLEBA, Appellant.

No. 1 CA-CR 14-0237 

Appeal from the Superior Court in Maricopa County 

No. CR2012-148610-001 

The Honorable Phemonia L. Miller, 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 Christopher V. Johns 

Counsel for Appellant 

Edward Gleba, San Luis 

Appellant
STATE v. GLEBA 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge John C. Gemmill joined. 

B R O W N, Judge: 

¶1 Edward Gleba appeals his convictions and sentences for four 

counts of aggravated driving under the influence of intoxicating liquor 

(“aggravated DUI”). Counsel for Gleba filed a brief in accordance with 

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

(1969), advising that after searching the record on appeal, he was unable to 

find any arguable grounds for reversal. Gleba was granted the opportunity 

to file a supplemental brief in propria persona, and he has done so.1

¶2 Our obligation is to review the entire record for reversible 

error. State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We view the facts 

in the light most favorable to sustaining the conviction and resolve all 

reasonable inferences against Gleba. State v. Guerra, 161 Ariz. 289, 293 

(1989). Finding no reversible error, we affirm. 

BACKGROUND 

¶3 The State charged Gleba with Count 1, driving while under 

the influence of intoxicating liquor with a suspended license, in violation of 

Arizona Revised Statutes (“A.R.S.”) sections 28-1381(A)(1), -1383(A)(1); 

Count 2, driving while under the influence of intoxicating liquor with a 

blood alcohol concentration of 0.08 or more with a suspended license, in 

violation of A.R.S. §§ 28-1381(A)(2), -1383(A)(1); Count 3, driving while 

under the influence of intoxicating liquor with two prior DUI violations 

within 84 months, in violation of A.R.S. §§ 28-1381(A)(1), -1383(A)(2); and 

Count 4, driving while under the influence of intoxicating liquor with a 

blood alcohol concentration of 0.08 or more with two prior DUI violations 

 

1 Gleba has also filed a “Motion To Strike Answering Brief as 

Untimely [ARCP 31.13(a)],” asking this court to strike any answering brief 

filed by the State filed after June 22, 2015. Pursuant to this court’s order 

dated February 19, 2015, “the filing of an answering brief by [the] State of 

Arizona shall await further order of this court.” As we have not ordered an 

answering brief to be filed by the State, we deny Gleba’s motion as moot.
STATE v. GLEBA 

Decision of the Court 

3

within 84 months, in violation of A.R.S. §§ 28-1381(A)(2), -1383(A)(2). The 

following evidence was presented at trial. 

¶4 On the evening of April 6, 2012, Detective Dyer and Officer 

Engram were on routine foot patrol in downtown Scottsdale. At 

approximately 11:00 p.m., while walking in the northbound direction of 

Brown Street, Dyer heard a “screeching” and “scraping” noise that he 

“immediately recognized” as the sound of a flat tire, and Engram heard a 

“loud thumping” sound. When Dyer and Engram turned in the direction 

of the noise, they observed a black Dodge Charger traveling southbound 

on Brown from Camelback. They observed the driver, Gleba, pull the car 

over to the side of the street, exit from the driver’s side of the vehicle, and 

look at the rear driver’s side tire. 

¶5 Although Dyer observed no other individuals in or near the 

vehicle as he approached Gleba, Gleba suggested he was not the driver, 

commenting that “she” was driving but failed to identify who that person 

was. While speaking with Gleba, Dyer detected an odor of alcohol and 

noted that Gleba had bloodshot, watery eyes and slurred speech. Because 

Dyer was not equipped to handle a DUI investigation, he waited for a 

backup unit. 

¶6 When Officer Rowley arrived, Gleba was seated on the curb. 

Rowley noted Gleba had bloodshot, watery eyes, slurred speech, and an 

odor of alcohol. Gleba consented to field sobriety tests and Rowley detected 

numerous cues of impairment. Gleba admitted he had been drinking and 

consented to a blood test, which later revealed Gleba’s blood alcohol 

content (“BAC”) was .209. 

¶7 The State presented evidence that Gleba’s license had been 

suspended “indefinitely” since 2008, and therefore was suspended on April 

6, 2012. A custodian of records for the Motor Vehicle Division of the 

Arizona Department of Transportation (“Department”) testified that 

multiple notices of suspension had been sent to Gleba’s address of record. 

¶8 Gayle Jarrell, a former Phoenix police officer with experience 

as a vehicle inspector and accident reconstructionist, testified for the 

defense. Based on his training and experience, Jarrell opined that Gleba’s 

vehicle sustained no damage as would result if the rim of the tire was 

making an audible scraping sound along the road. 

¶9 Gleba testified that immediately before the police approached 

him, he had left a hotel restaurant to return to his car to charge his phone. 

When he arrived at the vehicle, he noticed the flat tire. Gleba testified that 
STATE v. GLEBA 

Decision of the Court 

4

he “had absolutely not” been driving when Dyer and Engram approached 

him. 

¶10 The jury found Gleba guilty as charged. After finding he had 

three prior felony convictions, the trial court sentenced Gleba to concurrent 

ten-year terms of imprisonment for each count.2 This timely appeal 

followed. 

DISCUSSION 

A. Sufficiency of the Evidence 

¶11 Citing conflicting evidence and discrepancies in testimony 

presented at trial, Gleba first argues there was an insufficient basis for the 

State to file charges against him. Although Gleba frames the issue as 

insufficient facts to support the charging documents, he relies on evidence 

presented at trial. We therefore construe his argument as a challenge to the 

sufficiency of the evidence to support his convictions. 

¶12 In evaluating a challenge to the sufficiency of evidence, we 

consider the evidence in the light most favorable to sustaining the verdict 

and uphold the verdict “if substantial evidence exists to support [it].” State 

v. Stroud, 209 Ariz. 410, 411, ¶ 6 (2005). Substantial evidence “must be 

evidence that reasonable persons could accept as sufficient to support a 

guilty verdict beyond a reasonable doubt.” Id. at 412, ¶ 6 (internal 

quotations omitted). 

¶13 To convict Gleba of the four counts of aggravated DUI, the 

State was required to prove that Gleba: (1) was in actual physical control of 

a vehicle, (2) was under the influence and impaired, (3) had a BAC of 0.08 

or greater, (4) had a suspended license, and (5) had two prior DUI violations 

within 84 months. A.R.S. §§ 28-1381(A)(1), (A)(2), -1383(A)(1), (A)(2). 

 

2 At sentencing, the trial court found Gleba had violated his probation 

in two unrelated matters, CR2010-006297 and CR2011-006270. The court 

imposed mitigated, concurrent terms of one and one-half years 

imprisonment in those cases and credited Gleba with 562 and 568 days of 

presentence incarceration, respectively. Because his presentence 

incarceration credit was applied to CR2010-006297 and CR2011-006270, 

Gleba was not credited with presentence incarceration on his DUI 

convictions. 
STATE v. GLEBA 

Decision of the Court 

5

¶14 Gleba does not dispute that he was impaired or that he had a 

BAC well over .08 at the time he was taken into custody. Nor does he 

dispute he had two prior DUI violations within 84 months. Instead, he 

argues he never drove his vehicle after he commenced drinking that 

evening and was simply standing by his car to charge his phone when 

approached by Dyer and Engram. In support, Gleba points to his own 

testimony as well as that of his expert, Jarrell, who concluded there was no 

damage to the vehicle’s tires as would occur if the vehicle was driven with 

a substantially flat tire. Nonetheless, Dyer and Engram testified they heard 

a noise that sounded like a car being driven with a flat tire and they saw 

Gleba driving the vehicle. Given these eyewitness accounts, there was 

sufficient evidence to support the jury’s verdicts. See Guerra, 161 Ariz. at 

293 (“When reviewing the sufficiency of the evidence, an appellate court 

does not reweigh the evidence” and “[i]f conflicts in evidence exist, the 

appellate court must resolve such conflicts in favor of sustaining the verdict 

against the defendant.”). 

¶15 Gleba does not dispute that his license was suspended, but he 

challenges the sufficiency of the evidence that he had knowledge of the 

suspension. Specifically, Gleba contends that he “moved a number of times 

during the period in question” and never received notice that his license 

was suspended. 

¶16 “Driving under the influence is a strict liability offense, but 

aggravated DUI based on a suspended license requires proof that the 

defendant drove a motor vehicle under the influence of alcohol while his 

license was suspended, and that he knew or should have known of the 

suspension.” State v. Cifelli, 214 Ariz. 524, 527, ¶ 12 (App. 2007). Pursuant 

to statute, the Department “must provide written notice to a licensee 

informing him when his license is suspended.” Id.; see also A.R.S. § 28-

3318(A)(1). “The written notice must be sent by mail to the address 

provided to the Department on the licensee’s application, unless the 

licensee has notified the Department of a change” in address pursuant to 

statute. Cifelli, 214 Ariz. at 527, ¶ 12; (citing A.R.S. § 28-448(A)(2) (requiring 

licensees, including persons with a license that is “suspended, revoked, or 

canceled,” to “notify the department within ten days” of any change in 

address); A.R.S. § 28-3318(C)). Service of the notice is “complete on 

mailing.” A.R.S. § 28-3318(D). Section 28-3318(E) provides: “Compliance 

with the mailing provisions of this section constitutes notice of the 

suspension . . . for purposes of prosecution under § 28-1383[.] The state is 

not required to prove actual receipt of the notice or actual knowledge of the 

suspension[.]”
STATE v. GLEBA 

Decision of the Court 

6

¶17 “Although the statutory scheme establishes a presumption 

that the licensee has received notice, and therefore has actual knowledge, 

of his license suspension when the Department complies with the mailing 

requirement, this presumption is rebuttable and a defendant may 

demonstrate that he did not receive the notice.” Cifelli, 214 Ariz. at 527, ¶ 

13. “[O]nce the state proves mailing of the notice of suspension, the state 

no longer has the burden to prove receipt of the notice or actual knowledge 

of its contents. The burden then shifts to the defendant to show that he did 

not receive the notice.” Id. (internal citation and quotation omitted). 

¶18 Here, the State presented evidence of numerous notices of 

license suspensions being mailed to Gleba’s address of record. Although 

Gleba testified to separating from his wife during the relevant period, he 

never claimed a disruption in his receipt of mail, nor did he assert that he 

failed to receive the notices of suspension. On this record, the trial court 

properly instructed the jurors that they could consider the statutory notice 

presumption as satisfying the mens rea element for the charged offenses. 

B. Pre-Charge Delay 

¶19 Gleba next contends he was prejudiced by the State’s delay in 

charging him. Specifically, Gleba argues he lost the ability to gather the 

surveillance video of the hotel where he had been dining. Because the 

record does not reflect that Gleba raised this claim in the trial court, we 

review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 

(2005). “To prevail under this standard of review, a defendant must 

establish both that fundamental error exists and that the error in his case 

caused him prejudice.”3 Id. at 567, ¶ 20. 

¶20 On April 6, 2012, Gleba was taken into custody. He was soon 

released, however, and the State did not file a complaint against Gleba until 

September 14, 2012 and did not charge him by information until January 

10, 2013. 

¶21 For a charging delay to violate due process, a defendant must 

show that (1) the delay was intended to gain a tactical advantage or to 

harass him, and (2) the delay actually and substantially prejudiced him. See 

State v. Dunlap, 187 Ariz. 441, 450 (App. 1996). “[A] defendant has a heavy 

 

3 Gleba likewise failed to raise in the trial court the remainder of the 

issues he identifies in his supplemental brief and we therefore review them 

under the fundamental error standard. See Henderson, 210 Ariz. at 567, ¶ 

19.
STATE v. GLEBA 

Decision of the Court 

7

burden to prove that pre-indictment delay caused actual prejudice; the 

proof must be definite and not speculative.” Id. (internal quotation 

omitted). “To make a showing of actual and substantial prejudice, it is not 

enough to show the mere passage of time nor to offer some suggestion of 

speculative harm; rather the defendant must present concrete evidence 

showing material harm.” Id. (internal quotation omitted). 

¶22 Gleba does not argue, and the record does not reflect, that the 

State delayed charging Gleba to gain a tactical advantage over him. Equally 

important, Gleba has only speculated that the hotel may have had 

surveillance footage that would have included his curbside vehicle, without 

any evidence to support this claim. Therefore, Gleba has not satisfied his 

burden of establishing a violation of due process. 

C. Probable Cause 

¶23 Citing Gerstein v. Pugh, 420 U.S. 103 (1975), Gleba contends he 

was denied constitutional safeguards by being detained pursuant to the 

charging documents without a probable cause determination. As explained 

in Gerstein, states may have different pretrial procedures, but each “must 

provide a fair and reliable determination of probable cause as a condition 

for any significant pretrial restraint of liberty, and this determination must 

be made by a judicial officer either before or promptly after arrest.” 420 

U.S. at 125. Under Arizona law, a petitioner “arrested pursuant to a warrant 

[] has had his informal judicial determination of probable cause[.]” 

Rockwood v. Superior Court, 27 Ariz. App. 338, 339 (1976). 

¶24 On October 24, 2012, the State filed a direct complaint and 

warrant for arrest. Therefore, Gleba was taken into custody pursuant to a 

warrant, which issued upon a Gerstein-compliant judicial determination of 

probable cause. 

D. Racial Composition of Jury 

¶25 Gleba challenges the composition of the jury because no 

“Mexican-Americans” were impaneled, notwithstanding that “the 

percentage of Mexican-Americans in the general population” is 

approximately “30%.” 

¶26 To establish a prima facie violation of the Sixth Amendment’s 

fair cross-section requirement, a defendant must show: 

(1) that the group alleged to be excluded is a “distinctive” 

group in the community; (2) that the representation of this 
STATE v. GLEBA 

Decision of the Court 

8

group in venires from which juries are selected is not fair and 

reasonable in relation to the number of such persons in the 

community; and (3) that this underrepresentation is due to 

systematic exclusion of the group in the jury-selection 

process. 

Duren v. Missouri, 439 U.S. 357, 364 (1979). When these requirements are 

satisfied, the burden then shifts to the state to demonstrate a significant 

state interest “manifestly and primarily” advanced by the selection criteria 

at issue. Id. at 367. 

¶27 There is no dispute regarding the first prong. Gleba has failed 

to present sufficient evidence to assess the second prong, however, relying 

on an unsubstantiated figure. More importantly, Gleba has not argued, and 

our review of the record does not reveal, any basis for concluding that any 

underrepresentation among the jurors in this case is due to systematic 

exclusion of Hispanics in the jury selection process. We therefore find no 

error. 

E. Number of Jurors 

¶28 Gleba contends the trial court erred by impaneling only eight 

jurors when he was exposed to a possible forty-year sentence. However, 

even assuming that Gleba’s sentences could have been imposed 

consecutively, our supreme court has held that once a jury of less than 

twelve persons begins deliberations, a trial court cannot impose a sentence 

that is thirty years or greater. See State v. Soliz, 223 Ariz. 116, 120, ¶ 16 (2009) 

(“By failing to request a jury of twelve, the State effectively waived its 

ability to obtain a sentence of thirty years or more.”).

F. Speedy Trial Violation 

¶29 Gleba contends his right to a speedy trial was violated 

because he was not tried within 150 days of his arraignment as required by 

Arizona Rule of Criminal Procedure (“Rule”) 8.2(a)(1). Gleba was already 

in custody at the time of his arraignment on January 10, 2013 and remained 

in custody thereafter. The trial court set the initial last day for June 16, 2013, 

in accordance with Rule 8.2. On April 29, 2013, Gleba filed a motion to 

suppress, challenging the reliability of the blood test. The court 

subsequently held two evidentiary hearings on the matter, and excluded 

time from May 31, 2013 through September 30, 2013 (122 days) to address 

the issue, with a new last day of October 16, 2013. 
STATE v. GLEBA 

Decision of the Court 

9

¶30 On August 9, 2013, the trial court denied the motion to 

suppress. Given the time excluded, Gleba’s first trial timely commenced on 

October 7, 2013. The jury deadlocked, however, and the court declared a 

mistrial on October 16, 2013. Pursuant to Rule 8.2(c), “[a] new trial ordered 

after a mistrial . . . shall commence within 60 days of the entry of the order 

of the court.” Gleba’s second trial began December 2, 2013, with a new last 

day calculation of December 15, 2013. Therefore, we reject Gleba’s assertion 

that his speedy trial rights were violated. 

G. Duplicitous Charges 

¶31 Gleba contends the trial court erred by permitting the State to 

bring duplicitous charges. Specifically, Gleba contends that all four DUI 

convictions arise out of the same alleged driving incident, and the 

constitution prohibits the imposition of multiple punishments for the same 

offense. 

¶32 By statute, an “act . . . which is made punishable in different 

ways by different sections of the laws may be punished under both, but in 

no event may sentences be other than concurrent.” A.R.S. § 13-116. To 

determine whether a defendant’s criminal conduct constitutes a single act 

for purposes of A.R.S. § 13-116, we subtract “the evidence necessary to 

convict of one crime” and if “the remaining evidence satisfies the elements 

of the other crime, then consecutive sentences may be permissible under 

A.R.S. § 13-116.” State v. McDonagh, 232 Ariz. 247, 250, ¶ 12 (App. 2013) 

(internal citation and quotations omitted). 

¶33 Here, a single act of driving was common to all four 

aggravated DUI offenses of which Gleba was convicted. Because the 

elements of no count could be satisfied after subtracting the act of driving, 

the sentences for the four convictions could only be imposed concurrently. 

The trial court correctly imposed concurrent sentences, and thus the 

charges were not duplicitous. 

H. Declaration of Mistrial 

¶34 Gleba argues the trial court erred in declaring a mistrial and 

therefore the second trial violated his right against double jeopardy. In 

evaluating a double jeopardy claim, we review the trial court’s decision to 

declare a mistrial for an abuse of discretion. State v. Aguilar, 217 Ariz. 235, 

238, ¶ 7 (App. 2007). Both the federal and state constitutions protect a 

defendant from being tried multiple times for the same criminal offense. 

U.S. Const. amend. V; Ariz. Const. art. 2, § 10. 
STATE v. GLEBA 

Decision of the Court 

10

¶35 Nonetheless, the defendant’s right to a single trial “must in 

some instances be subordinated to the public’s interest in fair trials 

designed to end in just judgments.” Aguilar, 217 Ariz. at 238, ¶ 10 (internal 

quotations omitted). “When the court declares a mistrial sua sponte, retrial 

will not be barred if there was a manifest necessity for the mistrial or . . . the 

ends of public justice will otherwise be defeated.” Id.

¶36 In the first trial, the jury sent the court a note that it had 

reached an impasse. In response, the court inquired in writing whether the 

jurors were “deadlocked on all counts.” The court brought the jurors into 

the courtroom, and, in the presence of counsel, asked the jurors whether 

they believed that, with “further deliberations,” they may be able to reach 

a verdict within a reasonable period of time. The jurors responded they did 

not believe they could do so. 

¶37 Pursuant to Rule 22.4, 

if the jury advises the court that it has reached an impasse in 

its deliberations, the court may, in the presence of counsel, 

inquire of the jurors to determine whether and how court and 

counsel can assist them in their deliberative process. After 

receiving the jurors’ response, if any, the judge may direct that 

further proceedings occur as appropriate. 

Applying the rule to this case, the trial court acted within its discretion in 

responding to the jury’s impasse notification. Although the court may also 

have properly elected to give the jury more time to deliberate, we cannot 

say the court abused its discretion by discharging the jurors and declaring 

a mistrial upon being informed that the jurors were deadlocked on every 

count. 

I. Vindictive Prosecution 

¶38 Gleba contends the State engaged in vindictive prosecution 

by “pil[ing] on all manner of prior felony convictions,” allegedly in 

response to his exercise of the right to a jury trial, and the trial court 

therefore erred by imposing sentences based on those prior felony 

convictions. 

¶39 Contrary to Gleba’s claims, the record does not reflect that the 

State alleged multiple priors as a means of retaliating for Gleba’s refusal to 

enter a plea agreement. The State filed the allegations of prior felony 

convictions early in the case, while plea negotiations and settlement were 

still ongoing. Therefore, because there is no evidence to support Gleba’s 
STATE v. GLEBA 

Decision of the Court 

11

claim of prosecutorial vindictiveness, the trial court did not err by finding 

Gleba had multiple prior felonies and sentencing him accordingly.4

CONCLUSION 

¶40 We have searched the entire record for reversible error and 

have found none. All of the proceedings were conducted in accordance 

with the Arizona Rules of Criminal Procedure. The record shows Gleba 

was present at all pertinent proceedings and was represented by counsel. 

Gleba had an opportunity to speak before sentencing, and the sentence 

imposed was within the statutory limits. Accordingly, we affirm Gleba’s 

convictions and sentences. 

¶41 Upon the filing of this decision, counsel shall inform Gleba of 

the status of the appeal and his options. Defense counsel has no further 

obligations unless, upon review, counsel finds an issue appropriate for 

submission to the Arizona Supreme Court by petition for review. See State 

v. Shattuck, 140 Ariz. 582, 584-85 (1984). Gleba shall have thirty days from 

the date of this decision to proceed, if he so desires, with a pro per motion 

for reconsideration or petition for review. 

 

4 Gleba contends that the trial judge lacked the legal authority, as a 

commissioner, to preside over his trial. However, the judge had been 

appointed as a judge pro tempore during the relevant trial proceedings. 

Additionally, Gleba raises several issues implicating ineffective assistance 

of counsel, but such issues must be raised in the first instance by filing a 

petition for post-conviction relief. See State v. Sprietz, 202 Ariz. 1, 3, ¶ 9 

(2002).