Opinion
No. 1 CA-CR 13-0189
02-04-2014
STATE OF ARIZONA, Appellee, v. GEORGE PLATT JONES, II, Appellant.
Arizona Attorney General's Office, Phoenix By Colby Mills Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR201000013
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined. GOULD, Judge:
¶1 George Platt Jones, II ("Appellant") appeals from the trial court's judgment revoking his probation. Because we find no error, we affirm.
Facts and Procedural History
¶2 In August 2010, Appellant was sentenced to three years probation after having pled guilty to Theft, a class three felony. In February 2012, the probation department filed a petition to revoke Appellant's probation. The petition alleged, in relevant part, that Appellant had violated the conditions of his probation by failing to report law enforcement contact within seventy-two hours and consuming alcohol in January 2012. The probation department filed a supplemental petition to revoke in June 2012, alleging Appellant violated his probation by failing to report to the probation department as directed, changing his residence without prior approval of his probation officer, and consuming alcohol in May 2012.
¶3 The court held a probation violation hearing on August 21, 2012 and found by a preponderance of the evidence that Appellant violated all of the above conditions of his probation with the exception of consuming alcohol in May 2012. The court subsequently revoked Appellant's probation and sentenced him to a mitigated prison term of two years with credit for ninety-five days served. Appellant filed a timely notice of appeal.
¶4 On appeal, Appellant argues the trial court committed reversible error because (1) there was insufficient evidence showing he violated his probation, and (2) the court abused its discretion in denying his request for substitute counsel. We consider each argument in turn.
Discussion
I. Sufficiency of the Evidence
¶5 On review, we must uphold the trial court's determination that a probationer violated his probation unless the finding is "arbitrary and unsupported by any theory of the evidence." State v. Tatlow, 231 Ariz. 34, 39, ¶ 15, 290 P.3d 228, 233 (App. 2012) (citation omitted). Evidence is not considered insufficient simply because the record contains conflicting testimony. State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). We review the evidence "in the light most favorable to sustaining the court's finding." Tatlow, 231 Ariz. at 39-40, ¶ 15, 290 P.3d at 233-234.
¶6 Appellant first challenges the court's determination that he violated condition seventeen of his probation, which states that Appellant shall "[n]ot consume or drink any substance containing alcohol." The evidence presented at the violation hearing shows that on January 25, 2012, Appellant drove his truck into a roadside wash, where it became stuck in the sand. Mohave County Sheriff's Office Deputy Patterson arrived on the scene to assist, and examined Appellant to determine whether he had been driving under the influence of alcohol. Deputy Patterson found that Appellant had "slurred speech and bloodshot, watery eyes," "smelled like an alcoholic beverage," and admitted to drinking two cans of beer. Appellant failed a field sobriety test. Appellant then took two breath tests for alcohol, indicating a blood alcohol content of 0.045 and 0.041. Appellant also submitted to a blood draw, which indicated a blood alcohol content of 0.046.
Appellant appears to concede there was sufficient evidence to support this violation in his Opening Brief.
¶7 In response to this evidence, Appellant testified that he had only consumed O'Doul's non-alcoholic beer. However, in light of the evidence, the court found Appellant's testimony was not credible.
¶8 We conclude there was sufficient evidence to support the trial court's finding that Appellant violated condition seventeen of his probation by consuming alcohol in January 2012. The trial court's findings were not arbitrary and were supported by the evidence. Tatlow, 231 Ariz. at 39, ¶ 15, 290 P.3d at 233.
¶9 Appellant also claims there was insufficient evidence to support the trial court's determination that he violated condition eight of his probation, which required Appellant to "[r]eport any law enforcement contact to the APD [adult probation department] within [seventy-two] hours." This violation alleged that Appellant failed to notify his probation officer about his January 2012 police contact within seventy-two hours.
¶10 Appellant contends he was unable to report the police contact within seventy-two hours because he was taken into custody after he was arrested for DUI. Appellant asserts that his probation officer "made no attempt to initiate any contact with him" while he was in custody or "to determine when he was released." Appellant further claims there are no jail records indicating when he was released from custody, and therefore he "substantially complied by reporting his arrest" to his probation officer after he was released from custody "less than a week later."
¶11 At the hearing, Appellant admitted that he did not report his contact with police until February 3, well beyond the required seventy-two hours. Although Appellant claimed he was not released until February 3, the record shows that Appellant appeared before the Kingman County Justice Court the day following his arrest (January 26), and was released on his own recognizance. Accordingly, we find there is sufficient evidence to support the trial court's determination that Appellant violated condition eight of his probation.
¶12 Next, Appellant asserts there was insufficient evidence to support the court's determination that he violated condition three of his probation, which required that he "report to the APD [Adult Probation Department] . . . as directed." This allegation was based on Appellant's failure to report to the probation office for three consecutive office appointments in May 2012.
¶13 Appellant asserts he "failed to meet the exact requirement" to report to his three 10:00 am Monday meetings "due to medical appointments and lack of resources," but he made sure to report "near the time of the appointments when he was able." According to Appellant, the State "failed to prove that he willfully violated this term of probation."
¶14 At the hearing, two probation officers testified that in April 2012, Appellant was informed in writing that he was required to report to the probation department every Monday at 10:00 am, and that Appellant signed and acknowledged this directive. Appellant reported as required to his first scheduled meeting on April 30, 2012, and during this meeting he was informed that if a problem should arise that would prevent Appellant from promptly reporting to a meeting, he was required to call in advance to reschedule. Appellant, however, failed to report to his scheduled meetings as required on May 7, 14, and 21. Moreover, Appellant failed to call in advance to reschedule any of these meetings. Accordingly, we conclude there was sufficient evidence to support this violation.
¶15 Finally, Appellant claims that there was insufficient evidence to support the court's finding he violated condition 4 of his probation, which required Appellant to "[r]eside at an address approved by the APD . . . and obtain prior approval before changing residence." Appellant acknowledges that he did not request permission to change his address, but claims that "there was no indication that the probation department required Appellant to get permission before moving his residence."
¶16 The record shows that Appellant was informed of his duty to obtain prior approval before changing residences and nevertheless failed to do so until after he had completed an unauthorized move. On May 21, 2012, Appellant appeared at the probation office and placed a written probation form into a drop box, informing his probation officer that he had changed his residence. Appellant had not informed his probation officer of this move in advance nor had he requested permission to change residences. As a result, we find no error.
II. The Court Did Not Abuse Its Discretion In Denying
Appellant's Motion For Substitution Of Counsel
¶17 On May 11, 2012, after receiving a letter from Appellant requesting a new attorney, the court held a hearing. Appellant informed the court he believed his attorney, Joseph Carver, was "an intelligent young attorney" but was nevertheless too busy to meet with Appellant and provide Appellant with a "proper defense." The court asked Appellant if he would feel "more at ease" if he would be guaranteed some time to meet with his attorney and "go over things with him." Appellant agreed that such a meeting would make him feel more comfortable. Mr. Carver then stated that although he could not guarantee an in-person office meeting "in the next week or two," he would always be available by telephone and he would definitely have time to meet with Appellant before Appellant's next hearing, even if that hearing were to be scheduled within the next four or five weeks. Subsequent to Mr. Carver's statement, Appellant did not raise any issues or concerns. The court denied Appellant's request for substitution of counsel, noting that many public defenders maintain busy schedules, and that even if Appellant's substitution request were to be granted, there was no guarantee that Appellant would receive an attorney with more availability or experience. The court also noted that it appeared Appellant would have ample opportunity to meet with Mr. Carver before his next scheduled hearing, which was over seven weeks away.
¶18 Appellant claims the court abused its discretion and violated his Sixth Amendment right to counsel in denying his request for substitution of counsel. Appellant claims that although the court held a hearing on May 11, it erred because Appellant's attorney admitted that at the time of the hearing he had not had time to meet with Appellant or assist Appellant in preparing a defense, and counsel claimed he would not have time in the near future to meet in person, but only by telephone.
¶19 The trial court's ruling regarding a request for substitute counsel "will not be disturbed absent a clear abuse of discretion." State v. Cromwell, 211 Ariz. 181, 186, ¶ 27, 119 P.3d 448, 453 (2005). The Sixth Amendment right to counsel does not guarantee a defendant a "meaningful relationship" with his attorney, but rather demands that defendant's rights be balanced "against the public interest in judicial economy, efficiency, and fairness." Id. at 187, ¶ 31. In ruling on a substitution of counsel request, a trial court considers factors including "whether an irreconcilable conflict exists; . . . whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel." Id. In order to demonstrate irreconcilable conflict, "the defendant must present evidence of a severe and pervasive conflict with the attorney or evidence that he had such minimal contact with his attorney that meaningful communication was not possible." State v. Hernandez, 232 Ariz. 313, __, ¶ 15, 305 P.3d 378, 383 (2013) (internal citation omitted).
¶20 The record here illustrates the trial court did not abuse its discretion in denying Appellant's motion. The court held a timely hearing in which Appellant claimed his attorney was too busy to be an effective advocate on his behalf. After noting that there was no guarantee any substitute counsel would have a less demanding schedule, the court questioned Appellant's attorney as to his availability. Appellant's attorney stated that he would be available by telephone for the next two weeks, and he would be available for a face-to-face meeting within the next four to five weeks. The court scheduled Appellant's violation hearing for approximately seven weeks in the future. Appellant agreed that knowing he would be able to meet with his attorney would make him feel better, and raised no further concerns after receiving these assurances.
¶21 Based on the record, we conclude that Appellant has not suffered a "severe and pervasive conflict with his attorney" or that "meaningful communication was not possible." Id. at ¶ 15. Therefore, the trial court did not abuse its discretion or violate Appellant's Sixth Amendment rights in denying Appellant's motion for substitute counsel.
Conclusion
¶22 For the aforementioned reasons, the trial court's judgment is affirmed.