STATE v. PITZER

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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 DIVISION ONE FILED: 10/04/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. DANIEL LEE PITZER, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0828 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-106092-001 The Honorable Virginia L. Richter, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Matthew Binford, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorney for Appellant Phoenix T I M M E R, Presiding Judge ¶1 Daniel Lee Pitzer appeals the trial court s disposition reinstating him on probation after he violated a condition of probation. Pitzer does not contest he violated probation or contend that the court erred by reinstating him on probation. Rather, he argues the court erred in finding he was no longer eligible for mandatory probation pursuant to Arizona Revised Statutes ( A.R.S. ) section 13-901.01(A) (West because he had refused to participate in drug treatment. 2012) 1 For the reasons that follow, we disagree and therefore affirm. BACKGROUND ¶2 In July 2009, Pitzer pled guilty to possession of drug paraphernalia, his first drug conviction. The superior court imposed 18 months probation pursuant to A.R.S. § 13-901.01(A), which requires a disposition of probation for certain first- and second-time drug offenders. State v. Vaughn, 217 Ariz. 518, 521, ¶ 15, 176 P.3d 716, 719 (App. 2008). probation was treatment. offense, completion of at least One condition of eight hours of drug The court later convicted Pitzer of another drug which constituted an automatic probation violation. After an evidentiary hearing, the court also found that Pitzer had refused to participate in three drug treatment programs. This finding probation removed under § Pitzer from 13-901.01(A). reinstated probation for two years. 1 eligibility for Regardless, mandatory the court This appeal followed. Absent material revisions after the date of an alleged offense, we cite a statute s current version. 2 DISCUSSION ¶3 A defendant s eligibility for mandatory probation under A.R.S. § 13-901.01(A) must be revoked if the court finds that the defendant refused to participate in drug treatment. A.R.S. § 13-901.01(G). Pitzer argues the evidence does not support such a finding, and the trial court therefore erred by finding him ineligible for mandatory probation. We will uphold the court s finding unless [it] is arbitrary or unsupported by any theory of evidence. State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). ¶4 Pitzer correctly contends that in order to find a defendant no longer eligible for mandatory probation under § 13901.01(A), the court must find that the defendant refused to participate in drug treatment rather than merely failed to do so. A finding of refusal includes an element of willfulness; evidence of treatment Vaughn, continued are 217 drug insufficient Ariz. at 523, use and to ¶ failure support 25, 176 a to complete finding P.3d at drug of refusal. 721 (holding evidence of drug use and failure to participate in a drug test was not by itself sufficient evidence of refusal to participate in drug treatment). ¶5 Our review of the record reveals sufficient evidence to uphold the court s finding that Pitzer, through his conduct, willfully refused to participate in drug treatment. 3 Pitzer s probation officer testified she initially referred him to an out-patient program before making a referral to Maverick House, an in-patient subsequently drug treatment discharged Pitzer program. for Maverick failing to House comply with program rules when he was caught associating with a drug user. Pitzer next voluntarily entered checked returned to violating a a Salvation himself Maverick Army out House, leave-of-absence of treatment that where program. he policy. program, was He but then discharged Pitzer knew for he was required to complete a minimum of eight hours of drug treatment as a condition to his probation because he signed a document reflecting review of this and other probation conditions. ¶6 Although, refused to as Pitzer participate in points drug out, he never verbally his repeated treatment, violations of Maverick House s rules and his voluntary discharge from the Salvation Army program, combined with evidence he knew he was required to complete at least eight hours of drug treatment, evidence his refusal by conduct to participate in drug treatment. This case is therefore distinguishable from Vaughn, which held a defendant s continued drug use and failure to participate in a drug test did not support a finding the defendant Vaughn, had Pitzer probation refused did not conditions; treatment. merely he fail willfully 4 Unlike to the comply took defendant with actions in certain directly negating his participation in drug treatment. See id. at 522- 23, ¶¶ 23-25, 176 P.3d at 720-21. ¶7 Based on this record, we cannot say the trial court s finding under § 13-901.01(G) was arbitrary or unsupported by the evidence. 2 We therefore affirm. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ John C. Gemmill, Judge /s/ Margaret H. Downie, Judge 2 Pitzer asserts the trial court did not state what burden of proof it employed to make its finding. To the extent Pitzer argues the court committed reversible error by this omission, we disagree. The Arizona Rules of Criminal Procedure do not require the court to state the burden of proof. We presume the court applied the appropriate burden. State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) ( Trial judges are presumed to know the law and to apply it in making their decisions. ) (quoting Walton v. Arizona, 497 U.S. 639, 653 (1990)). Moreover, because probation violations must be established by a preponderance of the evidence, Ariz. R. Crim. P. 27.8(b)(3), which is the least onerous burden of proof, we fail to discern how Pitzer was prejudiced if the court mistakenly held the State to a higher burden. 5

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