STATE v. WAUNEKA

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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. DELBERT WAUNEKA, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06/20/2013 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 12-0511 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-117938-001 The Honorable J. Justin McGuire, Commissioner AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel, Criminal Appeals Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix Delbert Wauneka, Appellant Florence N O R R I S, Judge ¶1 Delbert Wauneka timely appeals revocation and disposition sentence. from his probation After searching the record on appeal and finding no arguable question of law that was not frivolous, Wauneka s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Wauneka to file a supplemental brief in propria persona, and he has done so. 1 We reject the arguments raised in Wauneka s supplemental briefing and, fundamental after error. reviewing the Therefore, we entire affirm record, Wauneka s find no probation revocation and disposition sentence. FACTS AND PROCEDURAL BACKGROUND 2 ¶2 On October 13, 2006, Wauneka pled guilty to sexual abuse, a class five felony, attempted sexual assault, a class three felony, and kidnapping, a class two felony (collectively original convictions ). Pursuant to the plea agreement, the superior court sentenced Wauneka to four years in prison with 1 Wauneka filed a supplemental brief and an affidavit. 2 In a probation revocation hearing, the State must establish by a preponderance of the evidence an individual has violated the terms of his probation. Ariz. R. Crim. P. 27.8(b)(3). We review the superior court s determination that a defendant violated his or her probation for an abuse of discretion. See State v. LeMatty, 121 Ariz. 333, 335-36, 590 P.2d 449, 451-52 (1979). Accordingly, this court will not reverse the superior court s factual finding the defendant violated his or her probation unless the finding was arbitrary and unsupported by any reasonable theory of evidence. Id. at 336, 590 P.2d at 452. 2 544 days of presentence incarceration credit on the kidnapping charge, and suspended imposition of sentence on the sexual abuse and attempted sexual assault charges (collectively abuse and assault charges ) and placed him on lifetime probation with special sex offender conditions on both charges. ¶3 After Wauneka was released from prison in August 2008, he began his terms of probation. In August 2009, the superior court suspended imposition of sentence on the abuse and assault charges and reinstated Wauneka to lifetime probation after he admitted Wauneka to violating violated his his probation. probation again In by July 2010, pleading after guilty in another matter, the court suspended imposition of sentence on the abuse and assault charges and reinstated Wauneka s lifetime probation. ¶4 In June 2012, a probation officer petitioned to revoke Wauneka s probation, alleging he had violated conditions of his probation, including Condition 4 (to reside at an approved residence and obtain approval before changing his residence), and Condition 25.3 (not to go to or loiter near . . . places primarily used by children under the age of 18 without permission) by going near a shopping mall and an amusement park. ¶5 After Wauneka denied the alleged probation violations, the superior court held a witness violation hearing. At the hearing, Wauneka s probation officer testified he had reviewed 3 the conditions acknowledged of he probation understood with the Wauneka, and conditions Wauneka before had signing. Wauneka s surveillance officer then testified Wauneka moved from the approved residence without permission, chose to become and remain homeless, and after he had moved. only contacted the surveillance officer The surveillance officer also testified the previous surveillance officer and Wauneka had signed behavior agreements and special sex offender conditions listing examples of places primarily used by children under the age of 18 that he should not go to playgrounds, and arcades. or near, such as malls, parks, Another surveillance officer assigned to the Global Positioning System ( GPS ) unit who had monitored Wauneka s location testified Wauneka had been in the parking lot or the property of the amusement park and near the mall. ¶6 had Wauneka also testified at the hearing, and admitted he slept probation at an unapproved officer, and had location been in before the contacting parking lot at the the mall. ¶7 At the conclusion of the hearing, the superior court found the State had proven by a preponderance of the evidence Wauneka had violated Condition 4 and 25.3 of his probation. The superior court suspended imposition of sentence on the abuse and assault charges, reinstated Wauneka s 4 lifetime probation, and imposed a 60-day term in jail as a condition of his probation on the assault charge. DISCUSSION I. Issues Raised in Supplemental Briefing ¶8 In his supplemental briefing, Wauneka raises various constitutional and other challenges to his original convictions. He argues failed to during read his his arrest Miranda for those rights, offenses, illegally the police searched his property, used physical coercion, and violated his right against self-incrimination. He also raises claims of involuntary plea, ineffective assistance of counsel, prosecutorial misconduct, and speedy trial violations. He further argues the superior court violated the victim s rights and improperly denied his motions to dismiss counsel and withdraw his plea, and his sentence on the kidnapping charge should be 2-to-2.5 years. None of these issues are properly before us because Wauneka cannot challenge his original convictions and sentence entered pursuant to his guilty plea in a direct appeal. (noncapital defendant has no right A.R.S. § 13-4033(B) (2010) to appeal a judgment or sentence that is entered pursuant to a plea agreement ); Ariz. R. Crim. P. 17.1(e) (noncapital defendant waives right to direct appeal and may seek review only by post-conviction proceedings under Rule 32), Ariz. R. Crim. P. 32.1 (pleading defendant has right to file post-conviction relief); cf. State v. Regenold, 5 226 Ariz. 378, 379, ¶ 8, 249 P.3d 337, 338 (2011) (pleading defendant can appeal contested probation agreement ). sentence violation Therefore, reinstatement of and the Wauneka s imposed not only as pursuant issue lifetime consequence to a plea us before probation of is the in the 2012 probation violation hearing. 3 ¶9 Wauneka next argues that by not crediting him for the time [he had] served under the original sentence, the superior court violated jeopardy. the his Fifth We disagree. kidnapping Amendment right against double The time Wauneka served in prison on charge cannot be used as presentence incarceration credit, and this time cannot be used to reduce his lifetime probation. incarceration pursuant to credit an imprisonment, A.R.S. means offense which § 13-712(B) time until shall actually the be (2010) prisoner credited (presentence spent is against in custody sentenced to the of term imprisonment ); Pickett v. Boykin, 118 Ariz. 261, 262, 576 P.2d 120, 121 feature A.R.S. (1978) of § the ( Probation suspension 13-903(F) (2010) is of not a sentence imposition (presentence of but rather sentence. ); incarceration a cf. credit available for sentence of imprisonment imposed upon revocation of probation). 3 For this reason, we also deny Wauneka s motion to supplement the record in this appeal with documents and other items that pre-date his original convictions. 6 II. Fundamental Error Review ¶10 We have reviewed the entire record for reversible error and find none. 881. See Leon, 104 Ariz. at 300, 451 P.2d at The probation revocation proceedings complied with the Arizona Rules of Criminal Procedures. by counsel at all stages of the Wauneka was represented proceedings. The State presented sufficient evidence to support the court s findings that Wauneka had violated the conditions of his probation. Wauneka was given the opportunity to speak at the disposition hearing, and the court acted within its discretion to reinstate Wauneka s probation with additional conditions. P. 27.8(c)(2); A.R.S. § 13-902(E) (Supp. Ariz. R. Crim. 2012) (lifetime probation available for completed or attempted sexual offenses); A.R.S. § 13-901(F) (Supp. 2012) (court may impose jail time as condition of probation). CONCLUSION ¶11 For briefing the and foregoing affirm reasons, Wauneka s we decline probation to order violation and disposition sentence. ¶12 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Wauneka s representation in this Defense counsel need do no more than inform Wauneka of the outcome of this appeal and his future options, unless, upon review, counsel finds 7 an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). ¶13 Wauneka has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. days On the court s own motion, we also grant Wauneka 30 from the date of this decision to file an in propria persona motion for reconsideration. _________________/s/_______________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: ______________/s/___________________ ANDREW W. GOULD, Judge ______________/s/__________________ RANDALL M. HOWE, Judge 8

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