State v. Branum

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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. ) ) LARRY DALE BRANUM, ) ) Appellant. ) ) DIVISION ONE FILED: 01/27/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 10-0249 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR20021119 The Honorable William T. Kiger, Retired Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Craig W. Soland, Assistant Attorney General Attorneys for Appellee DeRienzo & Williams, P.L.L.C. By Craig Williams Attorneys for Appellant Phoenix Prescott Valley W I N T H R O P, Judge ¶1 Larry Dale Branum ( Appellant ) appeals the trial court s decision to revoke his probation and sentence him to incarceration in the Arizona Department of Corrections ( ADOC ). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 In 2003, Appellant, who was already on lifetime probation for attempted sexual conduct with a minor, entered a plea agreement in which he pled guilty to attempted sexual exploitation of another minor under the age of fifteen years, a class three and dangerous crime against children in the second degree, in violation of Arizona Revised Statutes sections 13-1001 (2010) and 13-3553 (2010). 2 suspended sentencing and placed him on probation, requiring inter alia, that as The trial court lifetime a ( A.R.S. ) intensive condition of his probation he participate and remain in sex offender treatment at the direction of his probation officer. He was further advised that, if he did not follow the conditions of his probation, a revocation petition could be filed and, if his probation were revoked, he could be sentenced to prison. 3 1 We view the facts in the light most favorable to sustaining the trial court s determination, and resolve all reasonable inferences against Appellant. See State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). 2 We cite the current version of the applicable statutes if no revisions material to our analysis have since occurred. 3 Pursuant to subsequent petitions to modify filed by his probation officer, Appellant s level of supervision was modified from Level I to Level II to Level III of intensive probation, and then to standard probation. See A.R.S. § 13-917(A) (2010). 2 ¶3 In 2007, Appellant stopped attending counseling without first obtaining the permission of his probation officer, and he informed her that he had forfeited his driver s license for medical reasons. On May 18, 2007, his probation officer submitted a memorandum to the trial court, in which she stated: [Appellant] was sentenced to lifetime probation on 09-30-02. He has been involved in counseling since 08-04-03. In this time [Appellant] has been resistant to treatment, contentious, and in various states of denial. On 08-30-04 [Appellant] had heart surgery which consisted of an implanted automatic defibrillator. On 11-08-04 [Appellant s] physician provided a letter stating that [Appellant] should not submit to polygraph testing due to the presence of an implanted automatic defibrillator. On 04-14-07 [Appellant] provided a note from his physician stating that he was advised not to drive due to multiple medical problems. For the past year [Appellant] has been contemplating giving up his driver s license. He was also reporting that if he were to do so, he would not be able to make it to his sex offender treatment. Thus far, he has missed two sex offender group meetings since cancellation of his [driver s license] and obtaining an AZ ID on 04-26-0[7]. His counselor at West Winds counseling has expressed her desire to negatively discharge him from the program. [Appellant] states that he is too ill to attend [sex offender] counseling and submit to testing, operate a motor vehicle and is unable to arrange transportation to attend sex offender counseling. It is this officer s recommendation that [Appellant] be placed on a home curfew and provide this officer with a weekly schedule that will require approval for movement about the community. 3 On May 21, 2007, the trial court signed the memorandum, ostensibly approving the probation officer s recommendation. 4 ¶4 Also on May 21, Appellant was negatively discharged from the counseling center at which he was receiving treatment. His discharge summary noted that, although his initial progress in treatment had been adequate, at the time he stopped attending counseling he was not progressing as he should have been, in part because his level of motivation and accountability was [p]oor to variable, he demonstrated inconsistency in his level of culpability by the use of victim blaming, he had poor boundaries with other group members, and he continued to be at a high risk concluded, for It is sexual recidivism. still recommended The that discharge he complete summary a sex offender specific treatment program. ¶5 On November terminate or at counseling sessions. 30, least 2009, Appellant modify The his Yavapai filed probation County a motion to Attorney s to exclude Office, representing the State, objected and filed a petition to revoke Appellant s violation of probation the on three condition bases, that remain in sex offender treatment. he including actively the alleged participate and In part, the State alleged that, on October 2, 2009, Appellant had agreed to and signed 4 The memorandum was signed by the same trial judge who presided over Appellant s probation violation and disposition hearings that are the subject of this appeal. 4 implementation of probation to re-enroll in sex offender counseling, but that he had nonetheless failed to enroll in said program. ¶6 the On January 4, 2010, the trial court held a hearing on pending motions. At the hearing, Appellant s counsel explained that Appellant did not believe he could continue to comply with the conditions of his probation, which he viewed as unnecessarily restrictive. had been through many Counsel further explained Appellant classes, it was difficult for him to continue to participate in the work and meet with his probation officer, and he had obtained a letter from his doctor stating that he was unable to drive. Appellant stated he would no longer participate in sex offender treatment because he was not a sex offender and was tired of lying. He further stated that, despite not being guilty, he entered the plea agreements to avoid lengthy prison prison, so be it. terms, and if he now had to go to Counsel for the State argued Appellant has made it clear that he is not going to participate in treatment and requested regarding the that the State s court petition. hold an After evidentiary Appellant hearing denied the allegations of the petition, the court scheduled a probation violation hearing. ¶7 At the February 12, 2010 probation violation hearing, Appellant s probation officer testified 5 that Appellant was required to participate and remain in sex offender treatment as a condition of his probation. Winds Counseling for He had been referred to West treatment, but did not do well there because he was in denial, was contentious in treatment, and just wasn t progressing as they thought he should be. On April 26, 2007, Appellant forfeited his driver s license, and he dropped out of counseling because he stated that he was no longer able to drive nor was he able to find transportation to his sex offender therapy. In May 2007, his probation officer memoed the court and requested that [Appellant] remain at his place of residence, unless he was scheduled to be elsewhere or unless there was an emergency situation, but she did not give him permission to stop thereafter, Appellant program noncompliance for treatment. was attending negatively because he counseling. 5 Shortly discharged was not from the appearing for Further, although he had recently been directed by his probation officer to return to counseling, he had not done so. Additionally, he had not indicated that he lacked the ability to pay for his counseling, and financial assistance was available through the probation department for probationers who lacked the financial wherewithal to pay for counseling. 5 The probation officer s May 18, 2007 memorandum was not admitted into evidence or even introduced as an exhibit at the hearing, but was attached to the dispositional report considered by the court at Appellant s March 8, 2010 disposition hearing. 6 ¶8 After the State rested, the court indicated it had considered the testimony presented and fully and carefully reviewed Appellant s entire file, and after doing so, determined that the State could not meet its burden to prove two of the three alleged bases for revocation. The basis that Appellant had failed to actively participate and remain in sex offender treatment still remained, however. ¶9 he Appellant testified that, at the time of the hearing, was 71 counseling diabetes years old mandated and and as related a had decided term of physical to his stop attending probation ailments, due including to the his diminished focus, hearing, and eyesight, which had caused him to give up his driver s license upon his physician s recommendation. stated that he had explained his problems to his He probation officer, who told him to stay at home, and he assumed that that was the end of counseling. to the best of [his] He claimed he had stayed at home ability, although he occasional trips outside, such as to Walmart. his financial counseling. situation limited his admitted making He also claimed ability to attend He admitted that no one at the counseling center had informed him that he had completed treatment, however, and stated that if he were still able to drive, he would still be attending. He also conceded that he had no problem riding in a vehicle for short distances, such as to the counseling center, 7 and acknowledged that his wife had a vehicle and could provide him with transportation if necessary. ¶10 At the close of the hearing, the court found no dispute existed that the required program therapy that was part of the original grant of probation continues to be one of the written terms and conditions of probation. Further, the court found no indication the term had been modified by the court or that Appellant had signed any paperwork acknowledging such a modification. The court also found it clear that there is no dispute that he has not continued with [his treatment]. Finally, the court concluded that Appellant had failed to provide a sufficient legal explanation for the violation, and had therefore violated the terms of his probation. ¶11 At the March 8, 2010 disposition hearing, the court granted the State s petition to revoke Appellant s probation and sentenced him to a mitigated term of five years imprisonment in ADOC. Appellant filed a timely notice of appeal. appellate jurisdiction pursuant to the Arizona We have Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 134031 (2010), and 13-4033(A) (2010). ANALYSIS ¶12 On appeal, Appellant maintains that the court erred in revoking his probation given his physical inability to comply with the assigned counseling. He further maintains that the 8 May 18 memorandum (1) provided the trial court with actual notice as of May 2007 that his probation officer had changed the terms of his probation, (2) constitutes documentation that the court itself had agreed to [a] change of probation rules, or (3) at the very least tacitly gave [him] permission to . . . not attend serious counseling, medical especially concerns. He given his contends undisputed that because and the memorandum was in the Court s file, and signed by the Court, it was unnecessary to mark [it] as an exhibit and move for admission ; nonetheless, he appears to concede that our review should be for fundamental error, 6 and he asserts that the failure to introduce (and the court s apparent failure to consider) the May 18 memorandum at his probation violation hearing constitutes fundamental error. 7 6 Appellant s argument appears to be internally inconsistent. On the one hand, he argues that the May 18 memorandum was in the Court s file and, at his probation violation hearing, the trial judge demonstrated that he had reviewed the Court File for modifications. On the other hand, he presumes that the trial court did not consider the May 18 memorandum at the probation violation hearing because it was not introduced or admitted at the hearing and was never specifically referenced by the court. Certainly, the court could appropriately have considered the May 18 memorandum had it chosen to do so. See State v. Camino, 118 Ariz. 89, 90, 574 P.2d 1308, 1309 (App. 1977) (recognizing that the superior court may take judicial notice of its own records (citation omitted)). 7 To the extent Appellant asks this court to treat as fundamental error his own counsel s failure to submit the memorandum for admission into evidence, Appellant s argument is really a claim of ineffective assistance of counsel, a claim 9 ¶13 In general, we review for an abuse of discretion a trial court s determinations with respect to the revocation of an appellant s probation. See State v. Portis, 187 Ariz. 336, 338, 929 P.2d 687, 689 (App. 1996). To revoke an appellant s probation, the State need only establish a probation violation by a preponderance of the evidence. State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980) (citation omitted). We will uphold the court s finding of a probation violation unless that finding is arbitrary substantial evidence. or Id. unsupported by any theory of the Evidence is not insufficient merely because conflicts exist in the evidence. See State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). It is for the trial court to resolve such conflicts and to assess the credibility of witnesses in doing so. ¶14 To preserve an issue for Id. (citation omitted). appeal, a defendant must clearly raise that specific issue before the trial court. See State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). If a defendant fails to raise an issue below, the matter is waived absent fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To prevail under fundamental error review, an appellant must prove that the trial court erred, the error was fundamental, and the error that is not appropriate for review on direct appeal and must instead be raised in a petition for post-conviction relief. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). 10 caused him prejudice. See id. at 567-68, ¶¶ 19-26, 115 P.3d at 607-08; State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) (recognizing that before the reviewing court engages in fundamental error review, it must first conclude that the trial court committed some error). A defendant bears the burden to demonstrate prejudice and may not rely on mere speculation to carry that burden. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006). ¶15 After thoroughly abuse of discretion. reviewing the record, we find no Appellant incorrectly assumes that, once he was placed on probation, he could not be removed from that probation merely because he could not satisfy a precondition to his probation, such as his ability to attend counseling. See State v. Bradley, 175 Ariz. 504, 505, 858 P.2d 649, 650 (1993) (concluding that a probationer could be sentenced to prison after ADOC discovered he was ineligible for a program that was a condition of his probation). When a probationer s failure to obtain treatment frustrates the purpose of his probation, the failure to obtain treatment violates the condition, regardless whether the probationer is at fault. See, e.g., State v. Williams, 993 P.2d 1, 5, ¶ 21 (Mont. 1999) (concluding that the trial court did not abuse its discretion in revoking a sex offender s suspended sentence after a treatment program refused to accept him, because a condition of suspension would not be 11 met and continued suspension of the defendant s sentence would frustrate the purposes of suspension, namely, the defendant s rehabilitation (citing State v. Kochvi, 671 A.2d 115, 117-18 (N.H. 1996) (recognizing that numerous jurisdictions permit revocation when a defendant fails to complete a required sex offender treatment program for reasons beyond his control ))). 8 ¶16 Further, evidence presented at the probation violation hearing, including Appellant s testimony, supports the court s finding that decision to Appellant revoke had that violated his probation and its probation and sentence him to incarceration in ADOC despite his apparent physical infirmities. Before he ceased attending the counseling sessions required as a condition of his probation, Appellant 8 was performing poorly As support for his argument that the trial court abused its discretion by failing to fully consider his ability to attend and complete the counseling mandated as a condition of his probation, Appellant relies on Bearden v. Georgia, 461 U.S. 660 (1983), in which the United States Supreme Court concluded that automatic revocation of a defendant s probation for failure to pay a fine and restitution he had made efforts to pay but could not afford was fundamentally unfair. Id. at 668-69. We find Appellant s reliance on Bearden unavailing. In Bearden, the Court went on to recognize that, in other contexts, the probationer s lack of fault in violating a term of probation [might not] necessarily prevent a court from revoking probation, especially if the condition at issue poses a threat to the safety or welfare of society. Id. at 668 n.9. The New Hampshire Supreme Court recognized this distinction in Kochvi: Applied here, Bearden suggests that even if the defendant was not at fault in failing to secure treatment, his probation could still be revoked because, as an untreated sexual offender, he failed to carry out the conditions of his probation and represents a threat to society. 671 A.2d at 118. 12 because he was in denial, was contentious in treatment, and just wasn t progressing as [his counselors] thought he should be. from He acknowledged that, without first obtaining permission his probation officer, he stopped attending counseling, leading to his eventual negative discharge. After he informed his longer probation officer that he was no attending counseling, and represented to her that he was too ill to travel to attend counseling transportation, she and/or told him could to not stay obtain home. alternate She did not, however, tell him that he no longer had to comply with the conditions of his probation; instead, he simply assumed that the condition requiring that he participate and remain in counseling had been eliminated, and he had failed to return to counseling testimony even at after the he hearing had been also directed belies his to do so. argument that His he demonstrated that he was physically incapable of attending and participating in counseling or that he efforts to find alternate transportation. had made reasonable In fact, he testified that he had continued to make occasional trips outside the home; stated that if he were still able to drive, he would still be attending counseling; conceded that he had no problem riding in a vehicle for short distances, such as to the counseling center; and acknowledged that his wife had a vehicle and could provide him with transportation if necessary. 13 ¶17 May Further, even if we assume arguendo that, because the 18 memorandum referenced by was the not trial introduced court at before the or specifically probation violation hearing, the court therefore did not consider the memorandum and erred in failing to do so, its presence does not support finding that the court abused its discretion, much less committed fundamental error, in finding a probation violation and revoking Appellant s probation. ¶18 The memorandum reflects that, in May 2007, the court approved a written request by Appellant s probation officer to place him on home curfew and provide this officer with a weekly schedule that community. will require approval for movement about the Within the memorandum - and consistent with the testimony presented at the probation violation hearing - the probation officer informed the court that Appellant ha[d] been resistant to treatment, contentious, and in various states of denial ; he had missed two sex offender group meetings since cancelling his physician that he was advised problems; and his sex offender desire to driver s negatively license after not to being drive counselor discharge him informed had from due to by medical expressed the his her program. Additionally, the officer noted that Appellant states that he is too ill to attend [sex offender] counseling and submit to testing, operate a motor vehicle 14 and is unable to arrange transportation to attend sex offender counseling. Although Appellant contends that the court s approval of the probation officer s request termination of to the place him on court-ordered home curfew treatment constituted condition, neither the memorandum nor the court s approval of the request states anything about dispensing with the counseling requirement. ¶19 the In addition to the plain language of the memorandum, probation officer s testimony that she did not violate [Appellant] in 2007 because she wanted to work with him and felt like [] conclusion suspended he that, his would turn although treatment, himself Appellant himself counseling condition of his probation. around supports had continued the temporarily to remain a The probation officer explained that, although she did not allege a violation at that time, she did inform Appellant that if he was not well enough to do treatment, Walmart then [he was] not well enough et and the swap meet and Accordingly, she recommended and the to run cetera, court et around at cetera. approved an additional probation restriction that Appellant stay at home absent approval otherwise. the court ever informed Neither the probation department nor Appellant that the counseling requirement of his probation had been terminated, and we find it noteworthy that, at his probation violation hearing, Appellant made no mention that he had relied in any way on the May 18 15 memorandum. 9 We find no abuse of discretion, much less fundamental error, in the trial court s finding that Appellant violated his probation for failing to attend sex offender counseling and its decision to revoke his probation and impose sentence. CONCLUSION ¶20 We affirm the trial court s decision to revoke Appellant s probation and sentence him to incarceration in ADOC. _____________/S/__________________ LAWRENCE F. WINTHROP, Judge CONCURRING: _____________/S/_________________ PHILIP HALL, Presiding Judge ____________/S/__________________ JON W. THOMPSON, Judge 9 Appellant also suggests that, because an extended period of time had passed from the time he ceased attending counseling until the State filed its petition to revoke his probation, the State was somehow precluded from asserting he had violated the terms of his probation. He provides no support for such suggestion, and we find none. We further disagree with his insinuation that only his probation officer had the authority to file a petition to revoke his probation. Rule 27.6(a), Ariz. R. Crim. P., provides that when reasonable cause exists to believe a probationer has violated a condition of probation, either the probation officer or the prosecutor may petition the court to revoke probation. (Emphasis added.) 16

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