Background
In October 2021, police officers attempted to stop a vehicle driven by Robert Combs for failing to use its turn signal. Rather than stopping, Combs accelerated and fled, running a red light, speeding, and driving erratically around other vehicles. He eventually parked in an apartment complex where he was arrested. After being read his Miranda rights, Combs told the officer that he knew police were following him but thought his vehicle registration was canceled and believed he could escape.
Combs was charged with unlawful flight from a law enforcement vehicle (a class 5 felony) and reckless driving (a class 2 misdemeanor). Before trial, he received repeated warnings that he had a right to be present at all proceedings and that trial could proceed in his absence if he failed to appear. Combs appeared at his initial appearances and pretrial conferences, but failed to show up at the third Final Trial Management Conference (FTMC). The court issued a warrant but did not vacate the trial date.
At the reset trial, the State proceeded in Combs’s absence, presenting testimony from the arresting officer and a police aircraft pilot who had observed the pursuit. Combs’s defense counsel cross-examined witnesses but presented no evidence. A jury convicted Combs of both charges. The court subsequently found sufficient prior felony convictions to sentence Combs as a category three repetitive offender, imposing five years’ imprisonment for unlawful flight and 49 days (with credit for time served) for reckless driving.
The Court’s Holding
The Arizona Court of Appeals affirmed all convictions and sentences. The court first addressed jurisdiction, noting that although A.R.S. § 13-4033(C) can bar appeals when a defendant’s absence delays sentencing beyond 90 days, the State failed to properly establish waiver of this right. Because the State took no position on the appeal rights issue and did not raise it on appeal, and because the burden of proving waiver of a constitutional right falls on the State, the court retained jurisdiction.
On the merits, the court upheld Combs’s trial in absentia. Arizona Rule of Criminal Procedure 9.1 permits inference of voluntary absence when a defendant has actual notice of the proceeding and notice that it will proceed in his absence. The court found that Combs had been repeatedly warned of these rights before trial and that the trial date Combs was actually tried on was reset after he failed to appear at a previously noticed date. Under Arizona precedent, a defendant can voluntarily absent himself even without actual notice of a continued trial date if circumstances indicate he would not appear regardless.
The court also addressed sentencing issues raised post-conviction by Erlinger v. United States, 602 U.S. 821 (2024), which holds that whether prior convictions occurred on separate occasions must be determined by a jury beyond a reasonable doubt when it increases the defendant’s punishment exposure. While acknowledging that Arizona courts should submit this question to juries rather than deciding it themselves, the court found no prejudice to Combs. The undisputed record showed four prior felonies with offense dates spanning 2000, 2009, 2009, and 2017—making it impossible for any reasonable jury to conclude Combs had fewer than four priors on different occasions.
Key Takeaways
- Trial in absentia is permissible when a defendant has been adequately notified of the right to appear and that proceedings will continue in his absence, even if he later fails to appear at a rescheduled trial date.
- Procedural defaults regarding appeal rights under A.R.S. § 13-4033(C) must be established by the State through proper notice and a knowing, voluntary, and intelligent waiver; failure to do so preserves appellate jurisdiction.
- Post-Erlinger, Arizona courts must submit to juries—not decide themselves—whether prior convictions for sentencing were committed on the same occasion, but appellate relief is unavailable when the evidence overwhelmingly establishes multiple separate prior offenses.
Why It Matters
This decision clarifies important procedural protections and limitations for criminal defendants on appeal. It establishes that proper notice and warning, combined with demonstrated voluntary absence, support trial in absentia proceedings. The decision also reflects Arizona courts’ implementation of the recent Erlinger holding, which requires jury determination of prior-conviction facts affecting sentencing. However, the decision demonstrates that appellate courts will not reverse sentences based on Erlinger violations when the underlying factual predicate is undisputed and overwhelming.
For practitioners, the case reinforces the importance of maintaining contact with the court and counsel regarding trial dates, as defendants bear a duty to stay informed about scheduling changes. It also illustrates that while post-Erlinger requires jury findings on the “same occasion” question for sentencing purposes, defendants must demonstrate actual prejudice—showing a reasonable jury could have reached a different outcome—to obtain relief on appeal.