Opinion
No. 1 CA-CR 13-0098
01-07-2014
STATE OF ARIZONA, Appellee, v. JEREMEE KASON McGUIRE, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz, Jana Zinman Counsel for Appellee Yuma County Public Defender's Office, Yuma By Edward F. McGee Counsel for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT
AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
Appeal from the Superior Court in Yuma County
No. S1400CR201000578
The Honorable A. James Clark, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz, Jana Zinman
Counsel for Appellee
Yuma County Public Defender's Office, Yuma
By Edward F. McGee
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann authored the decision of the Court, in which Judge Patricia K. Norris and Judge Jon W. Thompson joined. SWANN, Judge:
¶1 Jeremee Kason McGuire appeals the superior court's revocation of his probation and the resulting prison sentence. McGuire argues that the court erred in admitting uncertified documents into evidence, and that it denied him due process by failing to inquire into whether his nonpayment of probationary restitution was willful. We find no error, and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2010, McGuire pled guilty to one count of unlawful use of means of transportation and one count of possession of drug paraphernalia. The superior court dismissed the drug paraphernalia charge, suspended the imposition of a sentence, and placed McGuire on supervised probation for three years beginning on October 28, 2010. McGuire's probation conditions included: "Obey all laws" ("Condition 1"); pay $190 monthly in restitution and fees ("Condition 16"); and participate in substance abuse counseling ("Condition 24"). In December 2010, McGuire was granted permission to serve the remainder of his probation in California under interstate-compact supervision.
¶3 In August 2012, McGuire's probation officer petitioned the court to revoke his probation. The probation officer alleged that while on probation, McGuire had been convicted of two felonies in California; failed to pay restitution and fees; and failed to complete substance abuse treatment.
¶4 In November 2012, the court held a contested probation-violation hearing. The probation officer testified that she had reviewed all probation conditions with McGuire the day after his sentencing and that he had signed a written acknowledgment to that effect. She further explained that she was an approved, limited-access user of the Interstate Compact Offender Tracking System ("ICOTS"), which is how she had learned that McGuire had violated Condition 1. More specifically, the state of California, through ICOTS, had provided her with online access that enabled her to download and print McGuire's violation report, a presentence investigation report, a sentencing minute entry, and an order granting probation (collectively "Exhibit 1").
ICOTS is a state-managed, "web-based system that facilitates the transfer of supervision for probationers and parolees from one state to another. . . . [by] serv[ing] as a clearinghouse for compact offender information." What Is ICOTS?, ICOTS, http://www.interstate compact.org/ICOTS/WhatisICOTS.aspx (last visited Oct. 23, 2013).
¶5 The state offered Exhibit 1 into evidence. The violation and presentence investigation reports revealed that McGuire had been arrested on September 28, 2011, and pled guilty on March 5, 2012, to felony charges of making a criminal threat and committing assault likely to cause great bodily harm. The reports also indicated that McGuire's sentencing hearing on those charges was to be held April 3, 2012. The probation officer testified that the sentencing minute entry confirmed that McGuire had been convicted on identical charges on April 3, 2012, but acknowledged that the minute entry itself did not contain the date the convicted offenses were committed. In addition to McGuire's name, all documents in Exhibit 1, including the minute entry, had a matching case number and referenced the same California Penal Code sections under which McGuire had been charged and pled guilty.
¶6 McGuire objected to the admission of the sentencing minute entry, arguing that the printed document did not appear to be a certified copy. The state responded that all documents in Exhibit 1 were "produced and distributed in accordance with the normal process of the adult probation department for probationers that are supervised out of state under courtesy supervision." The court overruled McGuire's objection and admitted Exhibit 1 in its entirety.
¶7 The probation officer further testified that McGuire had violated Condition 16 by failing to make the required restitution payments. The state introduced McGuire's payment history without objection, which showed that he had made only one payment of $65 since his probation began more than two years earlier. Finally the probation officer testified that McGuire had violated Condition 24 by failing to submit any proof that he had enrolled in or completed substance abuse treatment.
¶8 McGuire also testified. He admitted that he had been arrested and incarcerated in California on September 28, 2011, and sentenced to probation on April 3, 2012, but "was definitely under the impression" that his guilty plea of March 5, 2012, related to charges committed before probation began in this case. McGuire further conceded that he owed more than $5,000 in restitution and court fees, though he had no recollection of making any payments. After admitting that he had been employed in various jobs and that he had received wages while on probation, McGuire explained that he had failed to make court-ordered payments because "it was a little bit too expensive [and he] couldn't fit it into [his] monthly payments" of rent, cell phone bills, groceries, and transportation. McGuire also explained that he was unable to make payments in December 2010 because he was diagnosed with an illness requiring hospitalization and medication.
¶9 The court found that McGuire had violated Conditions 1, 16, and 24 of his probation. However, the court concluded that McGuire had not violated Condition 16 when he failed to make payments while he was being treated for an illness in December 2010, and while he was incarcerated between September 2011 and March 2012 after his California arrest. The court revoked his probation and sentenced him to a presumptive one-year prison term, with credit for presentence incarceration
¶10 McGuire timely appeals.
STANDARD OF REVIEW
¶11 The state must prove a probation violation by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3). We view the evidence in the light most favorable to upholding the trial court's ruling, State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140 P.3d 899, 909 (2006), and will affirm a "finding that a probationer has violated probation unless the finding is arbitrary or unsupported by any theory of evidence," State v. Vaughn, 217 Ariz. 518, 521, ¶ 14, 176 P.3d 716, 719 (App. 2008) (citation omitted).
DISCUSSION
¶12 McGuire contends that the superior court committed reversible error by admitting an uncertified copy of the sentencing minute entry over his objection. McGuire further contends that the court violated his due process rights under the Fourteenth Amendment because it failed to determine whether his nonpayment of restitution was willful. We reject both of McGuire's arguments. I. THE SUPERIOR COURT'S ADMISSION OF AN UNCERTIFIED MINUTE ENTRY WAS NOT AN ABUSE OF DISCRETION.
¶13 As our supreme court has noted, "documentary evidence offered at probation revocation hearings must be authenticated in conformance with our Rules of Evidence." State v. Stotts, 144 Ariz. 72, 82, 695 P.2d 1110, 1120 (1985). "Whether a party has laid sufficient foundation for the admission of evidence is within the sound discretion of the trial court, and we will not disturb its ruling absent a clear abuse of that discretion." State v. George, 206 Ariz. 436, 446, ¶ 28, 79 P.3d 1050, 1060 (App. 2003). To authenticate a copy of a public record that is not otherwise self-authenticating, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). One manner in which an uncertified public record may be authenticated is through its appearance, contents or other distinctive characteristics, "taken in conjunction with the circumstances of the case." George, 206 Ariz. at 446, ¶ 30, 79 P.3d at 1060 (citing Ariz. R. Evid. 901(b)(4)). Another manner is through evidence that the "purported public record or statement is from the office where items of this kind are kept." Ariz. R. Evid. 901(b)(7)(B).
¶14 We have previously held that a prison record that was not self-authenticating under Rule 902 was nevertheless admissible under Rule 901. State v. Thompson, 166 Ariz. 526, 527, 803 P.2d 937, 938 (App. 1990). In Thompson, we reasoned that the "trial court could have reasonably concluded that the exhibit was what the state proposed it was, that is, a record of appellant's prior conviction" because the "[a]ppellant's name was on all the separate items in the exhibit; the fingerprints, physical description, and birth date matched appellant, as did the date of the prior offense." Id. Similarly, we have held that "[t]he location where [an unsigned prison letter] was found combined with its contents provided the trial court a reasonable basis for admitting it into evidence" as a letter that the state claimed the defendant had written. George, 206 Ariz. at 446, ¶ 31, 79 P.3d at 1060 (reasoning that "any uncertainty about its authorship went to the weight of the evidence, not to its admissibility").
¶15 In this case, the state offered an uncertified copy of a sentencing minute entry purporting to show that McGuire was convicted of two felonies in California in violation of Condition 1. McGuire's probation officer testified that the state of California had provided her with the copy of the sentencing minute entry through her restricted access to ICOTS, and that the copy proved McGuire's convictions. The lack of certification means that the document was not self-authenticating; it does not mean that the document was necessarily inadmissible. The violation and presentence investigation reports (to which McGuire did not object) showed that McGuire was arrested and pled guilty to identical charges to those indicated on the sentencing minute entry while he was on probation. Further, the sentencing hearing date referenced in the violation and presentence investigation reports matched the date on the sentencing minute entry, and all documents in Exhibit 1, including the uncertified minute entry, bore McGuire's name in conjunction with an identical case number. Finally, McGuire himself testified that he had been arrested and convicted while on probation in this case.
¶16 On this record, we conclude that the superior court did not abuse its discretion by admitting the uncertified copy of the minute entry as proof that McGuire had violated Condition 1. II. THE COURT DID NOT COMMIT FUNDAMENTAL ERROR BY REVOKING MCGUIRE'S PROBATION AND IMPOSING A SENTENCE OF IMPRISONMENT.
¶17 As McGuire concedes in his opening brief, he did not challenge the constitutionality of the revocation of his probation or of the sentence based on his nonpayment of restitution and fees. We therefore review this issue for fundamental error. See Stotts, 144 Ariz. at 82, 695 P.2d at 1120; see also State v. Peralta, 175 Ariz. 316, 318, 856 P.2d 1194, 1196 (App. 1993) (holding that probationer's failure to raise issues at probation-revocation proceeding triggered fundamental error standard of review). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). "The defendant bears the burden of proving both that the error was fundamental and that the error caused him prejudice." State v. Valverde, 220 Ariz. 582, 585, ¶ 12, 208 P.3d 233, 236 (2009). "Because fundamental error review is a fact-intensive inquiry, the showing necessary to demonstrate prejudice will vary on a case-by-case basis." Id.
¶18 McGuire relies on the holdings of Bearden v. Georgia, 461 U.S. 660 (1983), and State v. Robinson, 142 Ariz. 296, 689 P.2d 555 (App. 1984), for his contention that the court violated his due process rights under the Fourteenth Amendment. Those cases stand for the proposition that a trial court may not revoke probation and impose a prison sentence for failure to make court-ordered payments unless the court has first inquired into the reasons for the failure to pay and determined that it was willful. See Bearden, 461 U.S. at 672-73 (holding that it would be fundamentally unfair to revoke probation if probationer has made all reasonable efforts to pay yet cannot do so through no fault of his own); Robinson, 142 Ariz. at 297-98, 689 P.2d at 556-57 ("[R]evoking appellant's probation solely on the grounds that he failed to complete payments on the fine and restitution, without regard to his ability to pay, amounts to a deprivation of appellant's conditional freedom in violation of the fundamental fairness required by the Fourteenth Amendment."). If the court determines that a "probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so," it must consider alternative punishments to imprisonment unless "alternate measures are not adequate to meet the State's interests in punishment and deterrence." Bearden, 461 U.S. at 672.
¶19 McGuire further relies on State v. Davis, 159 Ariz. 562, 769 P.2d 1008 (1989), for the argument that his probation revocation and prison sentence must be remanded based on the court's alleged due process violation. In Davis, our supreme court remanded a probation revocation and prison disposition based in part on nonpayment of restitution, because the record lacked Bearden-Robinson inquiries and the court was "unable to determine whether the result would have been different if the trial court had known that the violations relating to payment could not be used as bases for revocation." 159 Ariz. at 563-64, 769 P.2d at 1009-10 ("[W]here some of the alleged probation violations are set aside on appeal[,] the case should be remanded to the trial court for a new disposition hearing unless the record clearly shows the sentencing court would have revoked probation and imposed the same sentence without the improper findings.").
¶20 Even assuming that the court failed to inquire into whether McGuire's violation of Condition 16 was willful, an issue we need not address here, McGuire fails to meet his burden of showing that this caused him prejudice. We find that the record clearly shows McGuire also violated Conditions 1 and 24. And because of the severity of those violations -- involving felony convictions for making a criminal threat and assault likely to cause great bodily harm -- relative to McGuire's failure to pay $190 monthly in restitution and fees, we can imagine no proper mode of analysis that would have made the issue of restitution dispositive in these circumstances. Cf. State v. Munninger, 213 Ariz. 393, 397, ¶ 12, 142 P.3d 701, 705 (App. 2006) (holding that there is no fundamental error when it is clear that an aggravated sentence would be imposed even if an improper aggravator had not been used). This case is unlike Davis, in which the probation violations unrelated to nonpayment of restitution were far more minor. See Davis, 159 Ariz. at 563, 769 P.2d at 1009 (involving defendant's failure to meet with a probation officer, avoid alcohol, maintain employment or remain in school, and participate in counseling).
¶21 We therefore find no fundamental error in the court's probation revocation or prison disposition.
CONCLUSION
¶22 For the foregoing reasons, we affirm.