Opinion
1 CA-CR 21-0298
03-31-2022
STATE OF ARIZONA, Appellee, v. LUIS SOLTERO NAJERA, Appellant.
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee The Zickerman Law Office, PLLC, Flagstaff By Adam Zickerman Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. V1300CR201780481 V1300 CR201880198 The Honorable Tina R. Ainley, Judge
Arizona Attorney General's Office, Phoenix By Linley Wilson Counsel for Appellee
The Zickerman Law Office, PLLC, Flagstaff By Adam Zickerman Counsel for Appellant
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge David B. Gass joined.
MEMORANDUM DECISION
MORSE, JUDGE
¶1 Following a revocation hearing, the superior court found that Luis Soltero Najera violated multiple conditions of his probation and imposed concurrent prison terms totaling 1.5 years. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), counsel for Najera has advised this Court that he found no arguable questions of law and asks us to search the record for fundamental error. Najera was given an opportunity to file a supplemental brief in propria persona but has not done so. After reviewing the record, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On August 24, 2017, Najera pled guilty to Count 2: Possession of Drug Paraphernalia, a class 6 felony. The superior court placed Najera on supervised probation. On August 5, 2019, Najera pled guilty to new charges of Possession of Drug Paraphernalia, a class 6 felony. He also entered a plea of guilty to Count 1: Possession or Use of Dangerous Drugs (methamphetamine), a class 4 felony, in the 2017 case. As a result of the guilty plea to the new charge, the superior court found Najera in violation of probation for his 2017 drug paraphernalia conviction but reinstated that grant of probation to coincide with grants of probation for the new 2019 conviction and the 2017 methamphetamine conviction.
¶3 In March 2021, the State filed a petition to revoke Najera's probation, alleging that Najera had violated condition 6 of his probation by failing to report monthly to the probation department. In May 2021, the State amended the petition to revoke, alleging four additional violations of the terms of Najera's probation. The additional allegations included violations of condition 12 (not to use illegal drugs and submit to drug and alcohol testing), condition 14 (seek and maintain employment or attend school), and condition 15 (pay all fines and restitution). Najera was arraigned on the amended petition and denied the allegations. After Najera requested a continuance, the court held a contested violation hearing on June 18, 2021.
¶4 Najera was present at the hearing and represented by counsel. Conditions of probation, signed by Najera, were admitted without objection. A supervisory probation officer testified that he had gone over the conditions with Najera in Spanish, Najera had no questions, and Najera appeared to understand the conditions. Najera had not reported to the probation department since November 24, 2020. The officer further testified that, on November 24, 2020, Najera signed an admission to using methamphetamine and subsequently failed to submit to drug testing seven times in late 2020 and early 2021. The officer also testified that while Najera was reporting to the probation department, he had not provided any requested documents to show that he had sought or obtained employment. Finally, the officer testified that Najera was "in arrears" in the amount of $4,782.50 toward his criminal restitution obligation. Najera did not testify at the violation hearing.
¶5 The superior court found that Najera violated conditions 6, 12, 14, and 15 of his probation. On July 7, 2021, the superior court held a disposition hearing and sentenced Najera to concurrent mitigated prison terms of six months for Count 2, Possession of Drug Paraphernalia, and 1.5 years for Count 1: Possession or Use of Dangerous Drugs (methamphetamine), with credit for 204 days of presentence incarceration. The superior court also sentenced Najera to six months in prison for Possession of Drug Paraphernalia in the 2019 case, concurrent with the sentences imposed for the 2017 case.
The State also alleged that Najera had violated condition 17 by failing to perform required community service hours. The superior court found the State failed to prove that Najera had violated condition 17.
DISCUSSION
¶6 We review for fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). We have read and considered counsel's brief and fully reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find none. The proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The State produced sufficient evidence to establish the violations of probation. See Ariz. R. Crim. P. 27.8(b)(3) (providing that probation violations "must be established by a preponderance of the evidence," and the "court may receive any reliable evidence, including hearsay . . ."). The record shows that counsel represented Najera at all stages of the proceedings, and the sentences imposed were within the statutory limits.
CONCLUSION
¶7 For the foregoing reasons, we affirm. Upon the filing of this decision, defense counsel shall inform Najera of the status of the appeal and of his options. Counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Najera shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.