Opinion
No. 1 CA-CR 15-0837
11-29-2016
STATE OF ARIZONA, Appellee, v. OVAHL LESEAN DEES, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Nicole Marie Abarca Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR 2012-148615-001
The Honorable J. Justin McGuire, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix
By Nicole Marie Abarca
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined. OROZCO, Judge:
¶1 Ovahl Lesean Dees appeals his probation revocation and resulting imposition of sentence. Pursuant to Anders v. Cal., 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Dees' counsel filed a brief indicating that she searched the entire record, found no arguable question of law, and asked this court to review the record for fundamental error. Dees was afforded the opportunity to file a supplemental brief in propia persona, but he has not done so.
¶2 Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 On November 19, 2013, Dees pled guilty to aggravated assault, a class 4 felony. Pursuant to the plea agreement, Dees was placed on intensive probation for three years starting January 30, 2014. Among other things, Dees agreed to conditions of probation obligating him to "maintain a crime-free lifestyle," "participate and cooperate in . . . counseling," avoid illegal drugs, and "submit to drug and alcohol testing" as directed by the Adult Probation Department.
¶4 Dees' probation officer, A.P., issued a probation violation warrant on April 1, 2014, citing Dees' failure to adhere to the terms of his probation. A.P. alleged four violations, including testing positive for methamphetamine and Dees' failure to participate in counseling. The circumstances surrounding Dees' arrest on the probation warrant led to a fifth alleged violation.
¶5 At his revocation arraignment, Dees denied violating any terms of his probation. A violation hearing was held on January 12, 2015. A.P. testified that Dees understood and signed the terms of his intensive probation. After taking testimony as to the alleged violations, the trial court held that by a preponderance of the evidence Dees had violated three terms of his probation. The trial court subsequently revoked Dees' probation and sentenced him to two and one half years in prison, with 285 days of presentence incarceration credit.
¶6 Dees timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 12-4031, and -4033.A.1 (West 2016).
We cite the current version of applicable statutes when no revisions material to this decision have since occurred. --------
DISCUSSION
¶7 We view the facts in the light most favorable to sustaining the trial court's findings. State v. Maldonado, 164 Ariz. 471, 473 (App. 1990). In a probation violation hearing, we will uphold the trial court's findings "unless the finding is arbitrary or unsupported by any theory of evidence." State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999). A probation violation must be established by a preponderance of the evidence. Ariz. R. Crim. P. 27.8.b(3).
I. Use of Illegal Drugs
¶8 Dees' probation agreement expressly required that he not use illegal drugs. The court admitted into evidence, over a hearsay objection, the results of a drug test taken by Dees during his probation period, indicating he tested positive for methamphetamine. This evidence is admissible, even as hearsay, because the trial court deemed that the drug test evidence was reliable. See Ariz. R. Crim. P. 27.8.b(3) (In a probation revocation hearing, "[t]he court may receive any reliable evidence not legally privileged, including hearsay."); see also State v. Rivera, 116 Ariz. 449, 451-52 (1977) (holding that drug test evidence is reliable under Rule 27.8.b(3) when evidence that proper collection procedures were followed was also presented). Based on the foregoing evidence, the trial court did not err in finding that Dees violated this term of his probation.
II. Participation in Counseling
¶9 Another term of Dees' probation required him to participate in counseling. A.P. decided that Dees should participate in counseling after testing positive for methamphetamine and provided Dees with contact information for the program. Dees neither attended nor contacted the counseling program to initiate services. Therefore, the trial court properly found that Dees had violated this term of probation.
III. Maintaining a Crime-Free Lifestyle
¶10 Finally, Dees agreed to live a crime-free lifestyle. Dees allegedly committed a crime when he falsely imprisoned his girlfriend, and was arrested on that charge. The crime of false imprisonment requires evidence that the person "knowingly restrain[ed] another person." Ariz. Rev. Stat. § 13-1303.A.
¶11 Upon arrival at Dees' residence to enforce his probation violation warrant, the officers testified that while observing Dees at his front door accepting mail from a postal worker, they saw a woman drop eight to ten feet from the second floor balcony of Dees' apartment onto the ground below. Dees ran to the woman and a struggle ensued. Dees attempted to hold onto the woman, but she escaped from his grasp and "ran off" away from the apartment. Dees pursued her on a bicycle, and officers converged on the two individuals. The woman, identified as Dees' girlfriend, reported to officers Dees threatened to "bust her knee caps" if she attempted to leave the apartment, and that she used the distraction with the postal worker to escape. During the probation violation hearing, Dees' girlfriend changed her story, testifying her initial statement to police "was taken out of context," and that she did not tell the officers Dees' would not let her leave. Following the close of evidence, the trial court found the testimony of the officers persuasive, and found by a preponderance of the evidence Dees falsely imprisoned his girlfriend. Therefore, the trial court did not err in finding that Dees had violated this term of probation.
¶12 Based on the aforementioned findings, the trial court acted within its discretion when it revoked Dees' probation and sentenced him to a presumptive term of two and one half years in prison. The sentence is legal and Dees was afforded the correct amount of presentence incarceration credit.
CONCLUSION
¶13 We have read and considered counsel's brief, and carefully searched the entire appellate record for reversible error. See Leon, 104 Ariz. at 300. We find none. The proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and we conclude that the record contains evidence to support the trial court's findings. Dees was represented by counsel at all critical stages of the proceedings. Dees and his counsel were given an opportunity to speak at sentencing, and a legal sentence was imposed.
¶14 Counsel's obligations pertaining to Dees' representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984). Counsel need do nothing more than inform Dees of the status of this appeal and any future options, unless counsel's review reveals an issue appropriate for a petition for review to the Arizona Supreme Court. See id. at 585. Dees has thirty days from the date of this decision to proceed, if desired, with a pro per motion for reconsideration or petition for review.
¶15 We affirm the revocation of Dees' probation and the resulting sentence.