STATE v. WATSON

Annotate this Case
Download PDF
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. AMBER FAYE WATSON, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls Nos. 1 CA-CR 11-0145 1 CA-CR 11-0352 (Consolidated) DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR 2008-156955-001 DT; CR 2008-132659-001 DT The Honorable Jeffrey Reuter, Commissioner AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals Section/ Capital Litigation Section and Adriana M. Zick, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Amber Faye Watson appeals the superior disposition imposed for a probation violation. court s Specifically, Watson argues the superior court erred in finding that she is no longer eligible for mandatory probation pursuant to Revised Statutes (A.R.S.) section 13-901.01(G) (2010). Arizona For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Watson pled guilty to solicitation narcotic drug and possession of marijuana. to possess a She was sentenced to probation on both counts, see A.R.S. § 13-901.01(A), (F) (making probation mandatory for certain first and second drug convictions), and in both cases, as a condition of probation, she was directed to participate in substance abuse counseling, see A.R.S. imposing require § 13-901.01(D) mandatory (stating probation participation in an pursuant that to appropriate sentencing the statute drug courts "shall treatment or education program" as a condition of probation). ¶3 On November 25, 2009, the State petitioned to revoke Watson's probation including Watson's counseling. alleging failure to numerous probation participate in violations, substance abuse On February 18, 2010, Watson admitted violating the term of her probation requiring participation in substance abuse counseling and the other allegations were dismissed. 2 The State informed the finding"1 superior at that court time that and the it was court not seeking continued a "302 Watson on probation with a revised expiration date. ¶4 Six months later, Cheryl Begay, Watson's supervising probation officer, instituted proceedings to revoke Watson's probation alleging, among other things, that Watson failed to participate in substance abuse treatment. Based on this allegation, the probation officer requested that the superior court find Watson was no longer eligible for disposition under A.R.S. § 13-901.01. ¶5 The superior court held a violation hearing that was limited in participate scope in to the substance allegation abuse that Watson counseling. At failed the to hearing, Begay testified that she discussed the mandatory substance abuse counseling with Watson at their initial meeting in March 2010. Begay also officer stated gave counseling. that Watson she written and Watson's directives previous for probation substance abuse In April 2010, Watson entered a substance abuse 1 The shorthand "302 finding" refers to Proposition 302, passed by a voter referendum in November 2002, which permits sentencing courts to revoke [mandatory] probation [pursuant to A.R.S. § 13-901.01] upon a finding that a probationer refused to participate in drug treatment." State v. Vaughn, 217 Ariz. 518, 520 n.3, 176 P.3d 716, 718 n.3 (App. 2008). Prior to the amendment, A.R.S. § 13-901.01 "required that first-time Proposition 200 probation violators be reinstated on probation with additional conditions and incarceration was not an option." Id. (internal quotations omitted). 3 program with Native American Connections (NAC), but she was discharged in June for failure to report to classes, comply with the intake reporting requirements, and respond to their attempts to "re-establish service." Watson informed Begay that she was applying with AHCCCS, but also stated she would pay for the counseling if necessary. Begay provided Watson with several less expensive treatment options, but Watson chose to continue with NAC. Watson failed to meet the deadlines set forth in the directives for commencing a substance abuse program. ¶6 Watson testified that she applied to have AHCCCS cover the cost of her substance abuse counseling with NAC, but her application was denied because she failed to provide a birth certificate and census card demonstrating her Native American lineage. When asked why she was unable to provide the necessary documentation to AHCCCS, Watson testified that the records were located in storage containers in Ganado, Arizona, that there were "rat droppings" in the storage containers that presented a health risk, that it was "hard" to travel to Ganado, and that locating the documents was "a huge hassle." Watson further testified that she was unable to afford the $3000 out-of-pocket expense for the counseling in the absence of AHCCCS coverage. Finally, when asked about being discharged from NAC, Watson admitted that she failed to attend her scheduled appointment 4 with the provider but claimed she had no knowledge of NAC's numerous attempts to contact her and establish service. ¶7 Following counsel the acknowledged presentation that Watson of evidence, "clear[ly]" defense violated her probation, but argued that she did not "refuse treatment" to warrant a 302 finding. Specifically, defense counsel argued that Watson's failure to "push [] herself" and "get[] things done as quickly as possible" should not be equated with a refusal of treatment. ¶8 After hearing argument from the parties, the superior court found that the State had proven by a preponderance of the evidence that Watson requiring substance violated abuse the counseling. term With of her respect probation to finding, the superior court stated: [A]lthough she did not by her verbiage refuse treatment, I find that by her actions she did refuse treatment. The excuses she gave for not getting the information she needed to get on AHCCCS, I find to not be legally sufficient excuses, and there was no good excuse for being discharged. And I think through her actions, between being reinstated, which was in February and August, her actions have established that she has refused treatment. So I'm going to find that she's effectively rejected drug treatment as a condition of probation, and that she's no longer eligible for mandatory probation under Proposition 200, and that disposition will proceed pursuant to A.R.S. 13-901.01(f). 5 a 302 ¶9 Nonetheless, at the December 15, 2010 disposition hearing, the superior court reinstated Watson on probation, with an October 6, 2011 "expiration date on both cases." followed. of the This appeal We have jurisdiction pursuant to Article 6, Section 9 Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶10 On appeal, Watson challenges the sufficiency of the evidence supporting the superior court's refused to participate in drug treatment. failed to complete drug treatment as finding that she She contends that she a result of financial finding that hardship, and therefore did not willfully refuse. ¶11 We probationer will has uphold a violated superior probation court's unless the arbitrary or unsupported by any theory of evidence. Ariz. at omitted). that [this 521, ¶ 14, 176 P.3d at 719 (internal finding a is Vaughn, 217 quotations "However, an illegal sentence is fundamental error court] must correct."2 Id. (internal quotations omitted). 2 Although probation is technically not a "sentence," State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App. 1989), we refer to "sentence" here in the more general context of a sanction, see United States v. Knights, 534 U.S. 112, 119 (2001) (noting probation is a form of criminal sanction imposed after a determination of guilt). 6 ¶12 "[E]vidence is not testimony is conflicting." insufficient resolve such conflicts witnesses in doing so." based on findings of and Id. fact because the State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). to simply "It is for the trial court to assess the credibility of Moreover, when a court's ruling is after an evidentiary hearing, we accept the court's findings unless they are clearly erroneous. State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). ¶13 As set forth in A.R.S. § 13-901.01, "unless a person has been convicted of or indicted for a violent crime, upon a first or second conviction of personal possession or use of a controlled substance methamphetamine, execution Vaughn, of 217 the or court sentence Ariz. at and 521, drug paraphernalia shall suspend place the person ¶ 176 P.3d 15, quotations of A.R.S. § 13-901.01 omitted). the at not involving imposition on or probation." 719 (internal If the probationer violates a condition of probation, the court may not revoke the probation unless the court finds that the probationer refused to participate in drug treatment. Vaughn, 217 Ariz. at 521, ¶ 13, 176 P.3d at 719; see also A.R.S. § 13-901.01(G) ("If the court finds that treatment, the the defendant defendant refused shall probation under this section[.]"). 7 no to participate longer be in eligible drug for ¶14 Watson contends that her "failure" to participate in drug treatment should not be deemed a "refusal" to participate for purposes of A.R.S. § 13-901.01(G). unable to afford drug treatment She asserts that she was without AHCCCS coverage and argues she should not be penalized for her inability to pay. She further claims that she could not timely qualify for AHCCCS coverage because significant obtaining health risk, the but requisite she documents maintains that posed she a "acted reasonably in curing the deficiencies in her application." ¶15 A failure to participate in drug treatment does not necessarily constitute a refusal to participate. 217 Ariz. at 523, ¶ 25, 176 P.3d at 721. See Vaughn, Watson cites Bearden v. Georgia, 461 U.S. 660, 672 (1983), for the proposition that "a sentencing court failure to pay. must inquire into the reasons for the If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources sentence the to pay, defendant the to court may revoke imprisonment within probation the and authorized range of its sentencing authority." ¶16 Applying the reasoning of Bearden here, the sentencing court needed to consider the reason Watson failed to participate in treatment. If the sentencing court determined Watson's failure to participate was a willful refusal or failure to make 8 sufficient efforts, it was authorized to revoke probation pursuant to A.R.S. § 13-901.01(G). ¶17 The evidence presented supported such a finding. at the violation hearing Begay testified that she provided Watson with several less expensive treatment options, but Watson chose to pursue treatment through NAC. Begay also testified that Watson failed to attend her appointment with NAC and did not respond to NAC's repeated attempts to establish services and was discharged as a result. Moreover, Watson's primary argument that she could not timely obtain AHCCCS coverage because the requisite posed a hearing. documents health were risk was located in undermined storage by her containers testimony that at the Although she made a single reference to "disease" the "rat droppings" surrounding the storage containers may carry, when she was specifically asked whether she failed to obtain the documents "because of the rats" she replied "Yeah. Well, not really." Watson then explained that the volume of items contained in the storage containers was substantial and sorting through the containers to significant amount of time.3 any evidence to find the documents required a Furthermore, Watson failed to offer substantiate her claim that the storage containers presented a health risk and we defer to the superior 3 Watson testified that her Mother located the documents the week before the violation hearing. 9 court's determinations regarding witness weight to accord Watson's testimony. credibility and the See Thomas, 196 Ariz. at 313, ¶ 3, 996 P.2d at 114. ¶18 Thus, unlike financial Bearden, this is not a case in which hardship necessarily prevented participating in a drug treatment program. supports conduct the superior prevented court's her from finding obtaining from Rather, the evidence that the Watson Watson's financial dilatory resources that would enable her to participate in a drug treatment program and comply affirm the participate with that superior in a term of court's drug her probation. finding that treatment program Therefore, Watson and is refused no we to longer eligible for mandatory probation pursuant to A.R.S. § 13-901.01. CONCLUSION ¶19 For the foregoing reasons, we affirm. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ MAURICE PORTLEY, Presiding Judge _/s/___________________________________ DIANE M. JOHNSEN, Judge 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.