State v. Sanders

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. DEXTON HENRY SANDERS, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 05-27-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0367 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-106622-001 DT The Honorable James R. Morrow, Judge Pro Tem AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Adriana M. Rosenblum, Assistant Attorney General Criminal Appeals Section Attorney for Appellee Maricopa County Public Defender s Office By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Dexton Henry Sanders appeals from the court s finding of a probation violation and the related disposition. Sanders counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. 259 (2000). See Smith v. Robbins, 528 U.S. Sanders was afforded the opportunity to file a supplemental brief in propria persona but did not do so. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On February 8, 2007, Sanders was indicted on one count of aggravated assault, a class 6 felony and a domestic violence offense; one count of possession or use of marijuana, a class 6 felony; and one count of assault, a class 1 misdemeanor and a domestic violence offense. On April 25, 2007, Sanders entered into a plea agreement wherein he agreed to plead guilty to one count of aggravated assault, a class 6 undesignated felony and domestic violence offense. The court accepted the plea. On May 22, 2007, the court entered a guilty judgment against Sanders and suspended the imposition of sentence, placing Sanders on probation for a term of 18 months. The other charges against Sanders were dismissed. ¶3 Approximately 17 months later, on October 28, 2008, Sanders probation officer, Joi Alecia, initiated a petition to the court, recommending Sanders probation be extended another 18 months. Alecia recommended Sanders probation be extended so 2 that Sanders could complete a mental health evaluation and a domestic violence counseling program. The evaluation and counseling program were both conditions of Sanders probation. The petition stated that probation fines and fees. she would submit termination of evaluation and a Sanders was also delinquent on Alecia stated in the petition that petition to the court Sanders probation once counseling program. Both he for an early completed Sanders and the Alecia signed the petition. On November 5, 2008, the court, without conducting ordered a hearing, Sander s according to Alecia s recommendation. probation be modified The petition and order were filed on November 26, 2008. ¶4 In February 2009, Sanders probation officer, Glenn Thomas. petition to revoke Sanders was assigned to a new In March 2009, Thomas signed a probation, violated various terms of his probation. violation hearing on April 28, 2009. alleging that Sanders The court conducted a At the hearing, Thomas testified that a urine sample provided by Sanders on February 23, 2009, had tested positive for marijuana. As a result, the court found that Sanders violated the terms of his probation and the court extended Sanders probation to three years, starting from May 22, 2007. The court excluded the time between the February 23, 2009 violation and the April 28, 2009 hearing, resulting in a probation expiration date of July 25, 2010. 3 ¶5 Sanders pursuant to timely Arizona appealed Revised and we Statutes have (A.R.S.) jurisdiction sections 12- 120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). DISCUSSION ¶6 Sanders counsel advised this court that after a search of the record, he found no arguable grounds for reversal. Upon reviewing the record, we issued an order pursuant to Penson v. Ohio, 488 supplemental U.S. 75 briefs (1988), to directing address the relating to the November 2008 order: the parties following to three file issues (1) could Sanders term of probation be modified or enlarged without a hearing, consistent with State v. Korzuch, 186 Ariz. 190, 193-95, 920 P.2d 312, 31517 (1996), and due process; (2) did Sanders validly waive, forfeit, or otherwise give up his right to a hearing by signing the petition or otherwise; and (3) are these issues appropriately before the court in this appeal and do the answers to these questions affect the outcome of this appeal. we conclude that this court does not have Because jurisdiction to consider any issue regarding the propriety of the November 2008 order, we need only address the third issue. ¶7 A defendant may appeal a final judgment of conviction or an order after judgment affecting his substantial rights. A.R.S. § probation 13-4033(A)(1), affects the (3). Modification defendant's 4 of substantial the terms of rights and the defendant, therefore, has a right of direct appeal. See State v. Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923 (App. 1996) (denying defendant's motion to modify probation terms does not give defendant right of appeal, but order modifying probation does give defendant right of direct appeal). But a defendant must appeal within 20 days of the judgment or order modifying his probation. Ariz. R. Crim. P. 31.3. When sentencing is suspended, the time for filing an appeal is not extended. See State v. Osborn, 107 Ariz. 295, 295-96, 486 P.2d 777, 777-78 (1971). Filing a timely notice of appeal is essential to the exercise of jurisdiction by this court over the issue. State v. Berry, 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (App. 1982) (citation omitted); see also State v. Hughes, 22 Ariz. App. 19, 21, 522 P.2d 780, 782 (1974) (noting defendant must appeal within appropriate time period, not at some later time when probation is revoked). ¶8 Here, by order dated and signed on November 5, 2008, the court modified Sanders probation by extending the probation period an additional November 26, 2008. 18 months. The order was filed on Pursuant to § 13-4033(A) and Arizona Rule of Criminal Procedure 31.3(a), the deadline for filing of a direct appeal from this order has expired. ¶9 from On May 14, 2009, Sanders filed a notice of appeal the finding of a probation 5 violation and disposition hearing entered in the Superior Court of Maricopa County on April 28, 2009. This appeal was timely as to the April 28, 2009 violation finding and resulting disposition but it does not confer upon this court the jurisdiction to address the November 2008 order. ¶10 appeal Sanders argues that A.R.S. § 13-4034 allows for an from an illegal sentence.1 He submits that the reinstatement of probation is illegal because his probation should have expired by the time he violated his probation. Sanders, however, did not appeal from the November 2008 order that modified his probation and, as we previously discussed, this court does not have jurisdiction to address that order. ¶11 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The sentence imposed falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Sanders was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. 1 Section 13-4034 is not a statute authorizing appeals and conferring jurisdiction on this court. We assume Sanders was referring to A.R.S. § 13-4033(A)(4), which states that [a]n appeal may be taken by the defendant . . . from . . . [a] sentence on the grounds that it is illegal or excessive. 6 ¶12 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Sanders of the disposition of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. Sanders has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶13 For the foregoing reasons, Sanders finding of a probation violation and disposition are affirmed. ___/s/____________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: _____/s/_________________________ JON W. THOMPSON, Judge _____/s/_________________________ PATRICK IRVINE, Judge 7

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