State of Arizona v. Curtis Dale Yarbrough

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

CURTIS DALE YARBROUGH,

Appellant.

No. 2 CA-CR 2025-0028 Filed July 1, 2026

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County No. CR20213087001

The Honorable Scott McDonald, Judge

AFFIRMED IN PART; DISMISSED IN PART

COUNSEL

Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee

The Law Offices of Stephanie K. Bond P.C., Tucson

By Stephanie K. Bond

Counsel for Appellant

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MEMORANDUM DECISION

Judge Sklar authored the decision of the Court, in which Presiding Judge Kelly and Judge Brearcliffe concurred.

S K L A R, Judge:

¶1 Curtis Yarbrough was convicted after a jury trial of third-degree burglary, possession of burglary tools, and first-degree trafficking in stolen property. The trial court sentenced him to concurrent prison terms, the longest of which is 15.75 years.

¶2 Counsel filed a brief in compliance with Anders v. California,

386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), stating she had reviewed the record but found no "appeal[able] issues." Yarbrough filed a supplemental brief asserting the state lost evidence, his trial counsel was ineffective, and that insufficient evidence supported his convictions.

¶3 Yarbrough did not attend the last day of his trial and was arrested more than five months later. We directed the parties to address whether it was necessary to remand the case for the trial court to determine under A.R.S. § 13-4033(C) and State v. Brearcliffe, 254 Ariz. 579 (2023), whether Yarbrough had divested his right to appeal by delaying sentencing for ninety days or more. The parties agreed a Brearcliffe hearing was necessary, and we therefore stayed the case and revested jurisdiction in the trial court to hold a hearing "and issue any appropriate rulings thereon."

¶4 After that hearing, the trial court determined that Yarbrough had been adequately notified that his right to appeal could be waived if his absence delayed sentencing for ninety days or more and that he had been voluntarily absent from the last day of his trial. Yarbrough appeals from that ruling. See § 13-4033(A)(3).

¶5 Under § 13-4033(C), a defendant whose "absence prevents sentencing from occurring within ninety days after conviction" may not appeal from a conviction or the denial of a motion for new trial unless the defendant proves "by clear and convincing evidence at the time of sentencing that the absence was involuntary." However, waiver of the right to appeal under § 13-4033(C) must be voluntary, knowing, and intelligent. Brearcliffe, 254 Ariz. 579, ¶ 15. Thus, before a defendant is required to show an absence was involuntary to avoid losing the right to appeal under

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§ 13-4033(C), the state must first "show that the defendant was notified that delaying sentencing by absconding for more than ninety days could result in a waiver of the right to appeal." Id. ¶ 16.

¶6 On appeal, Yarbrough argues the state did not show he had sufficient notice either in writing or verbally. The state acknowledges, and we agree, that he did not receive sufficient written warning. The only written warning Yarbrough apparently received is an unsigned arraignment order stating that the defendant acknowledges "that if I fail to appear for sentencing within 90 days of my conviction, I may lose my right to a direct appeal." That warning is insufficient because it referred only to his appearance at sentencing, not to any failure to appear that delayed sentencing. See State v. Nunn, 250 Ariz. 366, ¶ 8 (App. 2020).

¶7 But Yarbrough was notified in open court of the consequences of delaying sentencing. At his arraignment, he was told, "If you are convicted at a trial and cannot be sentenced within 90 days of a conviction because you failed to appear, you could lose your right to a direct appeal."

Unlike the written admonition, the verbal warning informed Yarbrough that he could lose his right to appeal if his failure to appear delayed his sentencing beyond ninety days—it was not limited to his failure to "appear for sentencing."

¶8 Yarbrough argues, however, that the verbal warning was insufficient because he "never acknowledged understanding the conduct that would forfeit his constitutional right." But he cites no authority and develops no argument suggesting that a court is required to obtain an affirmation of understanding from defendants when warning them of the loss of the right to appeal. Thus, we do not address this argument further. See State v. Sanchez, 200 Ariz. 163, ¶ 8 (App. 2001); Ariz. R. Crim. P. 31.10(a)(7).

¶9 Yarbrough also identifies three purported failings in this advisement. First, he argues this advisement was insufficient because it did not "convey[] that voluntariness was the operative factor." What Yarbrough does not explain, however, is why a defendant would have to understand that only a voluntary absence would result in waiver, rather than any absence, for any future implied waiver to have been fully informed. Absence alone triggers an inquiry under § 13-4033(C)—the voluntariness of that absence is for the defendant to show after the requirements of § 13-4033(C) have otherwise been met. See Brearcliffe, 254 Ariz. 579, ¶ 17.

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¶10 We acknowledge that in State v. Contreras, 258 Ariz. 326, ¶ 7 (App. 2024), we stated that "a defendant must be fully informed that she could forfeit the right to appeal by voluntarily delaying sentencing for more than ninety days." But whether the defendant understood that only a voluntary absence could trigger § 13-4033(C) was not an issue in Contreras nor in the cases it cites, including Brearcliffe. See id. ¶ 8; see also Brearcliffe,

254 Ariz. 579, ¶ 16; Nunn, 250 Ariz. 366, ¶ 8; State v. Bolding, 277 Ariz. 82, ¶ 20 (App. 2011). We thus decline to read Contreras as holding that a narrower admonition is required.

¶11 Second, Yarbrough asserts the use of "could" instead of

"would" "diluted the warning." But, again, he does not explain how this distinction affects the validity of his implied waiver. Minimally, Yarbrough understood there was a chance that his absence—voluntary or not—could result in waiver of his appellate rights. The certainty of that loss is immaterial. Indeed, merely replacing "could" with "would" in the admonition given would have rendered it incorrect because it would no longer account for the possibility of an involuntary absence.

¶12 Third, Yarbrough contends the advisement failed to "inform him that absconding from the jury verdict starts the 90 day clock" and instead "implied that the 90 day period is triggered only by failing to appear at trial." He asserts he "appeared at trial" and no sentencing was set. But he has not shown why a reasonable defendant would conclude that absconding before the close of evidence could result in the loss of the right to appeal while absconding before the jury delivered its verdicts could not. In any event, Yarbrough was warned about failing to appear generally—he was not merely warned about failing to appear for trial. The admonition given was sufficient to alert Yarbrough that any failure to appear that resulted in delaying sentencing could be a basis for him to lose his right to appeal.

¶13 Accordingly, we affirm the trial court's determinations that Yarbrough was sufficiently advised of the consequences of failing to appear and that his failure to appear was voluntary. Thus, under § 13-4033(C) he has been divested of the right to appeal from his convictions. We dismiss his appeal as to those convictions and, as a result, do not consider the claims made in his supplemental brief, which do not address the legality of his sentences.

¶14 As the state notes, Yarbrough's appeal from his sentences is properly before us. See § 13-4033(A)(4), (C). There was sufficient evidence to support the trial court's finding that Yarbrough had at least two historical

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prior convictions. His prison terms are within the statutory range. See A.R.S. §§ 13-105(22), 13-703(C), (J), 13-1505(C), 13-1506(B), 13-2307(C). Pursuant to our obligation under Anders, we have reviewed the record for reversible sentencing error and found none.

¶15 We affirm the trial court's determination that Yarbrough was adequately advised of the consequences of delaying sentencing and that his absence was voluntary. We therefore dismiss his appeal from his convictions, see § 13-4033(C), and because we find no error, affirm his sentences.