State v. Wooten

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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. ) ) TARRON LAMAR WOOTEN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0928 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-006329-001 DT The Honorable Christine E. Mulleneaux, Judge Pro Tem AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Tarron Lamar Wooten ( defendant ) timely appeals from the superior court s order revoking his probation and sentencing him to sixty days in jail. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised that a thorough search of the record was conducted and no arguable question of law was found; counsel requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona, but he has not done so. FACTS AND PROCEDURAL HISTORY ¶2 In May 2008, defendant pleaded guilty to one count of possession of marijuana, a class 1 misdemeanor. He was sentenced to three years of supervised probation, various fines and service fees, and thirty days in jail. Defendant signed and dated Uniform Terms of Supervised Probation, which required him to, inter ( term alia, 3 ); not report possess to or his use probation illegal officer drugs as or directed controlled substances ( term 7 ); submit to drug and alcohol testing as directed by his probation officer ( term 9 ); and participate in counseling programs as directed by his probation officer ( term 10 ). ¶3 a On August 7, 2009, defendant s probation officer filed petition violations. to revoke probation, alleging nine separate An October 20, 2009 probation violation hearing occurred, at which the superior court found that the State had 2 proven certain violations. The court revoked defendant s probation and imposed sixty days jail time. DISCUSSION ¶4 We have read and considered the brief submitted by counsel and have reviewed the entire record. 300, 451 P.2d at 881. fundamental error. with the Arizona Leon, 104 Ariz. at Except as discussed infra, we find no All proceedings were conducted in compliance Rules of Criminal Procedure ( Rule ). Defendant was present at all critical phases of the proceedings and was represented by counsel. The sentence imposed was within the statutory range. ¶5 The probation violation hearing was held thirty-four days after defendant s arraignment, contrary to Rule 27.8(b) (requiring the violation hearing to be held no more than 20 days after the revocation arraignment ). 1 However, Rule 27 violations must be viewed from a due process standpoint, and a revocation reversed only if prejudice is demonstrated. v. Lee, 27 Ariz. App. 294, 295, 554 P.2d 890, 891 State (1976) (citations omitted). 1 The rule allows for a different date if the court, upon the request of the probationer made in writing or in open court on the record, sets the hearing for another date. Ariz. R. Crim. P. 27.8(b). No such request appears in this record. 3 ¶6 The record untimely hearing. 2 reveals of prejudice arising from the At the outset of the hearing, defendant s rights were explained. identification no Probation officer M.R. made an in-court defendant and provided evidence about the alleged violations. Defendant cross-examined M.R. and testified on his own behalf. At the conclusion of the hearing, the court summarized the evidence been and explained proven. The its that four allegations were allegations had dismissed. Defendant was credited with thirty-five days pre- sentence incarceration credit. unproven finding See State v. Baylis, 27 Ariz. App. 222, 225, 553 P.2d 675, 678 (1976) ( [I]n the absence of prejudice, failure to comply with the provisions of [Rule 27.8(b)] does not require reversal of the trial court s decision to revoke, especially where . . . the trial court specifically provided that the sentence imposed was to commence from the date of arrest. ) (citations omitted). ¶7 Sufficient evidence was presented to establish violations of probation terms 3, 7, 9, and 10. See Ariz. R. 2 The record also includes no objection to the timeliness of the hearing. [A]bsent fundamental error, lack of timely objection operates as a waiver on appeal. State v. Brown, 125 Ariz. 160, 162, 608 P.2d 299, 301 (1980) (citation omitted). As we discuss infra, defendant was not prejudiced by the untimely hearing, so fundamental error does not exist. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005) (finding that defendant must establish both fundamental error and prejudice arising therefrom to prevail under fundamental error review) (citations omitted). 4 Crim. P. 27.8(b)(3) ( A violation must be established by a preponderance of the evidence. ); State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999) (upholding a court's finding of a probation violation unless the finding is arbitrary or unsupported by any theory of the evidence. ) (citation omitted). 1. Term 3 ¶8 M.R. testified that defendant failed to report to the office by 2:00 p.m. on August 6th and later told her he did not report because he didn t want outstanding misdemeanor warrant. new probation officer on to get violated on an Defendant testified he saw a August 6. On cross-examination, though, he admitted confusion over the date he saw that officer. 2. ¶9 for Term 7 M.R. testified that a drug test came back positive THC, and defendant admitted smoking marijuana about a month ago . . . to help ease the pain for his disability. M.R. testified that she issued a written violation warning to defendant, which he acknowledged in writing. 3. ¶10 Term 9 M.R. testified that defendant failed to submit to urinalysis testing on May 20, March 6, and February 11, 2009, after which she issued written violation warnings. 5 Defendant testified he failed to test because he lacked money to pay for the tests. 4. ¶11 Term #10 M.R. testified she issued a written defendant to participate in drug counseling. directive for Although defendant scheduled an intake appointment, he did not keep it. Defendant testified he did not attend because his medical insurance was canceled and he had no money to pay for the program. insurance was reinstated, he was injured in an After his automobile accident that required surgery and recovery that conflicted with his intake appointment. Defendant, however, admitted he did not reschedule his appointment after recovering from surgery. ¶12 Although conflicting evidence was presented at the violation hearing, [i]t is for the trial court to resolve such conflicts and to assess the credibility of witnesses in doing so. Thomas, 196 Ariz. at 313, ¶ 3, 996 P.2d at 114 (citation omitted). Substantial evidence supports the superior court s findings. CONCLUSION ¶13 We affirm the judgment of the superior court. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate 6 for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 7

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