Opinion
No. 1 CA-JV 13-0002
03-19-2013
IN RE LUIS S.
Law Offices of Mary Elizabeth Perez By Mary E. Perez Attorneys for Appellant Luis S. Alpine, CA Jon R. Smith, Yuma County Attorney By Mark Edward Hessinger, Deputy County Attorney Attorneys for Appellee State of Arizona Yuma
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
MEMORANDUM DECISION
(Not for Publication -
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Yuma County
Cause No. S1400JV20110226
The Honorable Mark W. Reeves, Judge
AFFIRMED
Law Offices of Mary Elizabeth Perez
By Mary E. Perez
Attorneys for Appellant Luis S.
Alpine, CA Jon R. Smith, Yuma County Attorney
By Mark Edward Hessinger, Deputy County Attorney
Attorneys for Appellee State of Arizona
Yuma KESSLER, Judge ¶1 This appeal was filed pursuant to Anders v. California, 386 U.S. 738 (1967) and Maricopa County Juvenile Action No. JV-117258, 163 Ariz. 484, 788 P.2d 1235 (App. 1989), following Luis S.'s ("Luis S.") admission to the juvenile court that he violated his probation and the imposition of additional probationary conditions including a six-month extension of his intensive probation. Finding no arguable issues to raise, counsel requested that this Court search the record for fundamental error. See Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) . After searching the record for fundamental error and finding none, we affirm the juvenile court's order.
FACTUAL AND PROCEDURAL HISTORY
In 2011, Luis S. was placed on intensive probation for various offenses. We do not review those proceedings and only review the probation violation proceedings at issue here. See State v. Herrera, 121 Ariz. 12, 14-15, 588 P.2d 305, 307-08 (1978).
¶2 On December 15, 2012, a petition to revoke Luis S.'s probation was filed containing three allegations that on or about December 13, 2012, Luis S. (1) committed the offense of minor consumption, (2) consumed alcohol as evidenced by a breathalyzer test of .196, and (3) violated school rules by being under the influence of alcohol at school resulting in long-term suspension. ¶3 An advisory hearing was held on December 17, 2012 at which Luis S. was present with his mother. As required by Arizona Rule of Procedure for the Juvenile Court ("Rule") 28(C)(2) and Rule 32(D)(2)(b), the court first advised Luis S. that he had the right to remain silent during the proceedings and any statements he made can be used against him. The court informed Luis S. of each allegation against him, as required by Rule 28(A), and then explained to him that he was already on intensive probation which meant that if he is found to be in violation of his probation the court could order further probation, fines and assessments, community work, drug testing, revocation of driving privileges, and commitment to the Arizona Department of Juvenile Corrections until age eighteen. Luis S. stated that he understood all of those potential consequences. ¶4 As required by Rule 28(C)(1) and Rule 32(D)(2)(a), the juvenile court then explained to Luis S. that he had the right to a probation violation hearing and court-appointed attorney. The court further explained that at the probation violation hearing Luis S. would be presumed innocent and that the state would have the burden to prove the allegations against him by a preponderance of the evidence. See Ariz. R.P. Juv. Ct. ("Rule") 32(E)(2). The court also informed Luis S. that if he proceeded to a hearing he would be able to subpoena and cross-examine witnesses, present evidence, and he had the option to testify on his own behalf. See Rule 28(C)(3), (4); see also Rule 32(D)(2)(c), (d). ¶5 The juvenile court then asked Luis S. if he wanted to have an attorney appointed, to which Luis S. responded that "I want to represent myself, sir." The court then asked Luis S.'s mother if she consented, and she agreed that Luis S. could represent himself. See Rule 10(D). The court explained that an attorney could benefit Luis S. by helping him ask questions, obtain evidence, and determine applicable defenses. Luis S. stated that he understood and that he still wanted to represent himself. ¶6 Next, the juvenile court asked Luis S. if he wanted the court to set a probation violation hearing or if he wanted to admit the allegations. See Rule 28(A); see also Rule 32(D)(2)(e), (g). Luis S. responded that he wanted to admit the allegations. Luis S. proceeded to answer the court's questions confirming that he had not taken any drugs, alcohol, or medication in the last 24-hours, no one made promises to him conditioned on his admission, no one threatened or used force against him to get him to admit to the allegations, and he understood the rights he was entitled to if he proceeded to a hearing. Luis S. understood his rights and was willing to give them up and admit that he violated his probation. See Rule 28(C)(5); see also Rule 32(D)(2)(g)(i). ¶7 The juvenile court found that Luis S. knowingly, intelligently, and voluntarily waived his right to counsel and to a probation violation hearing. See Rule 28(C)(5), (D); see also Rule 32(D)(2)(a), (g)(i). Luis S. agreed with the factual bases for the violations as presented by the petitioner and the court accepted Luis S.'s admissions of guilt and determined the facts were sufficient to find him in violation of his probation. See Rule 28(D); see also Rule 32(D)(2)(e). ¶8 The juvenile court ordered that "based on the nature and circumstances of this offense and previous history including an alcohol offense" Luis S.'s intensive probation was extended six additional months, he must enroll in another high school, he must be detained until December 23, 2012 and pay a $5.00 detention fee for each day detained, and he must write a 250-word essay about why he should not drink alcohol. ¶9 Luis S. timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 8-235(A) (2007).
DISCUSSION
In an Anders appeal, this Court must review the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).
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I. Self-representation
¶10 At the advisory hearing, the juvenile court permitted Luis S. to waive his right to counsel and represent himself. Luis S. was in eleventh grade, had previous experience in the juvenile court system, and the court explained the role of an attorney and the benefits of having an attorney. See Maricopa Cnty. Juv. Action No. JV-108721 & F-327521, 165 Ariz. 226, 228, 798 P.2d 364, 366 (1990) (determining court properly accepted waiver where the sixteen-year-old juvenile was informed of the charges he faced, received an explanation of the nature of a trial, role of an attorney, and the benefit of having representation, and the juvenile's mother was present and consented to self-representation). Luis S. confirmed that he was not made any promises nor threatened, he was sober, and he understood his rights. Luis S.'s mother was present and consented to his self-representation as is required by Rule 10(D) and A.R.S. § 8-221(B) (Supp. 2012). Thus, the court properly advised Luis S. of his rights and the record supports the court's finding that Luis S. knowingly, intelligently, and voluntarily waived counsel. See Rule 10(D); see also Rule 32(E)(4).
II. Waiver of probation hearing & admission of guilt
¶11 The juvenile court permitted Luis S. to waive a probation hearing and admit the probation violations at the advisory hearing. Pursuant to Rule 32(D)(2)(g)(i), "[i]f the juvenile wishes to admit to allegations, the court shall accept the admission or plea if supported by a factual basis and a finding that the juvenile knowingly, intelligently and voluntarily waives the rights [in subsections (D)(2)(a) through (D)(2)(d)]." Here, as described in ¶¶ 3-7, the court gave Luis S. the advisements and warnings required by Rules 28(C) and 32(D) and ascertained that Luis S. knowingly, intelligently, and voluntarily waived his right to a probation violation hearing and the rights attendant to such hearing. See Rule 28(D). Thus, we find no error. ¶12 The juvenile court also accepted Luis S.'s admission to the allegations after determining such allegations were supported by factual bases as required by Rule 32(D)(2)(g)(i). The petitioner testified that Luis S. was found under the influence of alcohol at his high school for which the Yuma Police Department was called and a breathalyzer test confirmed Luis S. was intoxicated. As a result, Luis S. was placed on long-term suspension from school. Thus, there was adequate factual bases upon which the court accepted Luis S.'s admissions. See Rule 28(D). We find no error. ¶13 In sum, the record reflects that Luis S. was afforded his constitutional rights and the proceedings were properly conducted in compliance with the Arizona Rules of Procedure for the Juvenile Court. The juvenile court's order continuing Luis S.'s intensive probation, ordering detention and assessing a fee, and adding other conditions to his probation were within the court's discretion. See Rule 32(E)(5).
CONCLUSION
¶14 After reviewing the entire record, we conclude there are no meritorious grounds for reversal or modification of Luis S.'s probationary conditions. Accordingly, we affirm the juvenile court's order. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), Luis S.'s counsel's obligations in this appeal are at an end. Counsel need do no more than inform Luis S. of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See Rule 107(A), (J).
_____________________
DONN KESSLER, Judge
CONCURRING: _____________________
JOHN C. GEMMILL, Presiding Judge
_____________________
JON W. THOMPSON, Judge