Opinion
No. 1 CA-CR 15-0611
07-19-2016
STATE OF ARIZONA, Appellee, v. RICHARD LEON HALE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2000-093142
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 Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 Richard Leon Hale ("Hale") was found in violation of his lifetime probation, reinstated on probation, and incarcerated for ninety days. Counsel for Hale filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Hale submitted a supplemental brief in propria persona, arguing the superior court erred in: (A) denying a petition as to where he could live, (B) requiring excessive bail, (C) refusing to allow Hale to choose a course of treatment, (D) denying requested discovery, (E) failing to recognize physical and/or mental disabilities, (F) imposing excessive probation fees and incarceration, (G) not addressing rights against self-incrimination, and (H) relying upon contradictory witness testimony. For the reasons that follow, we affirm the superior court's decisions.
FACTUAL AND PROCEDURAL HISTORY
¶2 Hale pled guilty in 2000 to attempted molestation of a child, a non-dangerous and non-repetitive offense, and to molestation of a child, a dangerous crime against children. The superior court accepted the pleas and sentenced Hale to twelve years of imprisonment on the molestation charge followed by lifetime probation upon release from the Department of Corrections for the attempted molestation charge. After his release, Hale was ordered to pay a monthly probation service fee of $40.00, a reimbursement fee of $200.00 paid monthly in $10.00 increments, and a DNA fund reimbursement fee of $500.00 paid monthly in $20.00 increments. Some of the probation terms included the following:
Term #11. Successfully complete all programs of assistance, counseling, or therapy as directed by the Probation Department. In addition, the Court emphasizes the following services.
Community Punishment
Mental health screening/treatment
. . . .
Term #17. Abide by the following Addendum to Terms of Probation.
Hale signed the order imposing conditions of probation, showing that he understood those conditions and that failure to comply with any condition could result in probation revocation. After serving his sentence of incarceration, Hale was discharged and probation began on June 24, 2012; payments began on August 1, 2012.Sex Offender.
¶3 Probation officer H.S. filed a petition to revoke Hale's probation, alleging unsuccessful discharge from two treatment agencies and failure to submit a sexual history packet as required by the probation department. At the first witness violation hearing, the superior court dismissed the former charge. At the second witness violation hearing, the State provided testimony, detailed below, that Hale was able to but had failed to complete the sexual history packet. The court found that the State proved by a preponderance of the evidence that Hale was able to complete the sexual history packet, but he failed to do so. Therefore, the court found that the State proved by a preponderance of the evidence that Hale violated his probation terms. The court reinstated Hale's probation and ordered him to be incarcerated for ninety days, beginning on September 1, 2015. The court also ordered Hale to serve 275 days in jail beginning on August 8, 2016, unless Hale completed the sexual history packet and sexual history polygraph before August 1, 2016. Finally, the court ordered Hale to pay a probation service fee of $65 per month, and a delinquent probation service fee of $40 payable in $5 monthly increments.
¶4 On September 15, 2015, Hale filed an appeal from the finding of probation violation. His counsel has found no non-frivolous and arguable question of law and requested this Court search the record for fundamental error.
STANDARD OF REVIEW
¶5 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. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). We review the evidence in the light most favorable to affirm the superior court. State v. Cropper, 205 Ariz. 181, 182, ¶ 2 (2003) (citation omitted). We review the superior court's factual findings for clear error. State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000). A finding of fact is not clearly erroneous if there is evidence in the record to support it. State v. Leyva, 195 Ariz. 13, 20-21, ¶ 32 (App. 1998). Contradictory evidence is not insufficient simply because the evidence is conflicting. State v. Ballinger, 110 Ariz. 422, 425 (1974). We defer to the trial court's credibility determinations. State v. Hunter, 112 Ariz. 128, 129 (1975). We will uphold a trial court's finding that a probationer has violated probation unless the finding is arbitrary or unsupported by any theory of evidence. State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999).
DISCUSSION
¶6 After careful review of the record, we find no grounds for reversal of Hale's probation violation or modification of the sentence imposed. The record reflects that the proceedings were held in compliance with the Arizona Rules of Criminal Procedure. Hale was present and represented by counsel at all stages of the proceedings below. Hale was permitted to speak at sentencing, where the superior court acted within its discretion in ordering ninety days' incarceration with no credit for days already served and reinstating lifetime probation.
¶7 There is sufficient evidence in the record to support Hale's probation violation. C.D., Hale's surveillance officer as of April 2013, testified that a sexual history packet is a packet given by the probation department to each client they receive; the client works on it with a therapist to determine his/her entire sexual history and to help the therapist design a treatment case plan for that client. Once the therapist approves and signs the packet, the packet is sent back to probation. Then, the probation department reviews the packet, signs it, and makes a referral for a polygraph. C.D. testified that if a client fails to complete the packet, the client can be discharged from treatment because the therapist needs the completed packet to design a case plan.
¶8 C.D. testified that she asked Hale about twenty-five times to complete the sexual history packet and that each time Hale responded, "I'm working on it." He never gave an explanation for its incompleteness, and he failed to comply with C.D.'s directive to complete the packet by May 22, 2015. Further, C.D. saw no physical or mental impairment preventing Hale from completing the packet.
¶9 D.M., Hale's primary sex offender treatment therapist from October 23, 2012, to July 29, 2014, testified that she met with Hale weekly and discussed with him the incomplete packet about twenty times; each time Hale responded, "I'm working on it." D.M., who works with special needs groups at the counseling center, had no knowledge of any of Hale's possible special needs. D.M. also testified that pages four and twenty-eight of the packet, specifically, remained incomplete.
¶10 Probation officer H.S. testified that she talked with Hale about completing the packet at their monthly visits beginning in October 2014; Hale consistently told her that he was working on it. H.S. never noticed or knew of any reason why Hale could not complete the packet on time. He continuously expressed to H.S. that he was not ready to present the packet to the therapist. Even during his own testimony, Hale never asserted that he completed the packet. The superior court asked Hale if he was trying to complete the packet in a timely manner or simply avoiding doing it. Hale merely stated that he was trying to finish, but the packet remained incomplete because he had other "stuff" going on. The witnesses' testimony, including Hale's, supports the superior court's finding that Hale failed to complete the sexual history packet.
¶11 The exhibits admitted into evidence also support the superior court's findings. Exhibit 1 is a log of dates, ranging from October 2012 to July 2014, on which D.M. reviewed the packet with Hale and found the packet incomplete. Exhibit 2 is a uniform conditions behavior agreement between Hale and probation. The first page directs Hale to complete the packet by July 17, 2013, and is signed by Hale and his other probation officer A.P. The second page, also signed by Hale and A.P., states that Hale has been on probation for one year and has yet to complete the packet. Exhibit 3 is the sexual history packet dated July 23, 2013. The packet reflects, in accordance with D.M.'s testimony, that certain pages remained incomplete. Exhibit 4 is a behavior report written by C.D. on May 27, 2015, stating that Hale was directed to complete the packet for over two years but failed to do so. The judge admitted all the exhibits into evidence and found that Hale had sufficient time to complete the packet but failed to do so.
¶12 Viewing the evidence in the light most favorable to affirm the superior court's decision, we find the evidence supports the court's conclusion that Hale failed to complete the packet and thus violated his probation.
¶13 In his supplemental brief, Hale raised several new issues. As this is an Anders appeal, no issues were preserved, and we review for fundamental error. State v. Richardson, 175 Ariz. 336, 339 (App. 1993).
A. Motion to Stay at Mother's House
¶14 On August 2, 2013, Hale moved the superior court to allow him to stay at his mother's house, where he lived since his release from prison. The State responded, with Hale's treatment provider's support, that his mother's home environment made it difficult for the probation department to monitor Hale in a safe and efficient manner because the home was 95% unlivable, filled with trash, and partially inaccessible. The superior court denied Hale's motion given the home's conditions and probation's difficulty in supervising Hale. Hale now argues the superior court erred in denying his motion because he was never given a copy of the State's response and therefore could not "refute [the State's] claims or accusations."
¶15 Pursuant to Arizona Rules of Criminal Procedure ("Rule") 35.1(a), each party may file and serve a response within ten days of the filing of the original motion, and the moving party has three additional days to file a reply. Id. If no timely response is filed, the motion is deemed submitted on the record. Id. The State's response was mailed and delivered to both the judge and the Maricopa County Public Defender and filed on August 9, 2013, within the ten-day limitation. The superior court filed its order fourteen days after the State filed its response. Hale and his counsel, having received the State's response, had time to file a reply before the court ruled, even accounting for the mailbox rule. Because no reply was filed, the motion was correctly submitted on the record and we find no error, fundamental or otherwise. However, even if there was any error, this issue was not the basis for Hale's probation violation. Therefore, we find no fundamental error or prejudice.
The mailbox rule states that a prisoner is deemed to have filed his notice of appeal at the time it is delivered, properly addressed, to the proper prison authorities to be forwarded to the clerk of the superior court. State v. Goracke, 210 Ariz. 20, 22, ¶ 5 (App. 2005) (quoting Mayer v. State, 184 Ariz. 242, 245 (App. 1995)).
B. Excessive Bail
¶16 Hale argues that the original $50,000 bail was excessive, prevented him from contributing to his own defense, and that he should have been allowed to be released. The superior court has discretion to determine the conditions of release and whether a defendant is non-bailable. Rule 4.2(a)(2)(7); see also Rule 7.2(c)(2)(D). Hale should have raised his concerns regarding bail at the time it was set. Because the original bail is irrelevant to Hale's probation violation, we find no error, fundamental or otherwise.
C. Type of Treatment
¶17 Hale argues that he ought to have a right to choose a therapy program or therapist based on his religion. He is also concerned that therapists did not create the sexual history packet, but rather polygraphists and probation department officials did, and questions whether there are any studies showing successful use of the sexual history packet for therapy purposes.
¶18 Pursuant to Rule 27.1, the sentencing court and the probation officer may impose regulations on the probationer. The court and the probation officer may modify or clarify any condition or regulation imposed. Rule 27.3. The probationer may also request the court to modify or clarify the conditions. Id. Therefore, the court and probation officer both have discretion regarding the probation regulations. We reverse only if the court's exercise of its discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Lashonda M. v. Ariz. Dep't. of Econ. Sec., 210 Ariz. 77, 83, ¶ 19 (App. 2005).
¶19 Hale agreed to the terms of imprisonment and the terms of probation for his original crimes when he signed the plea agreement, which included participation in sex offender treatment at the discretion of the probation officer. The superior court advised Hale about the consequences of entering into a plea agreement and found that Hale waived his rights knowingly, intelligently, and voluntarily. The court reasonably exercised its discretion by simply enforcing the terms to which Hale agreed. Hale needed to question the probation terms before he signed the plea agreement.
¶20 Further, Hale argues the superior court should not have sustained the prosecution's objections to his counsel's (Harris) questions about type of therapy, the creation of the sexual history packet, and any follow-up studies that showed the packet's successful use in therapy. The court sustained the State's objections to those questions based on relevance.
¶21 A superior court has broad discretion to curtail the scope of examination and cross-examination to reasonable limits. State v. Doody, 187 Ariz. 363, 373 (1996) (quoting State v. Fleming, 117 Ariz. 122, 125 (1977)). We review the court's restriction on the scope of cross-examination on a case-by-case basis to determine if the court unduly inhibited the counsel's ability to present information bearing on the issues at hand. Id. We will not disturb the court's order without a clear showing of prejudice. Id.
¶22 Questions regarding the type of therapy are irrelevant to Hale's probation revocation. Further, Hale agreed to the type of therapy in his plea agreement. After sustaining the objections, the superior court allowed Harris to continue with cross-examination. We find no showing of prejudice because the court merely limited the scope of cross-examination to questions related to Hale's failure to complete the packet. The court did not unduly inhibit Harris's ability to present information bearing on the actual issues. Therefore, we defer to the court's discretion and find no error, fundamental or otherwise.
D. Discovery
¶23 Hale argues Harris, his attorney, never received everything he requested during discovery, especially an email and/or text D.M. sent in response to Hale telling her that he did not yet complete the packet. He also argues prosecutorial misconduct exists because the prosecution and/or probation and/or therapists deliberately denied giving Harris the requested evidence. He argues they did so because that information would show he turned in the sexual history packet to D.M. and that her signature on March 1, 2014, illustrates the packet was complete. Hale also argues the undisclosed information would show that A.P. and/or C.D. increased his job applications per day from six to eight.
¶24 Harris filed a motion to dismiss and/or compel disclosure on July 13, 2015, the day before the witness violation hearing. He sought the treatment provider notes and testing material, including the sexual history packet. Probation gave Harris the APETS notes, which outlined some communication between probation and treatment providers, but lacked treatment provider's notes. At the hearing, the court found the treatment provider's notes irrelevant to the charges and did not order their disclosure. The court further ordered the State to lend Harris the sexual history packet and continued the matter to give Harris time to review the packet.
Because Harris did not file a motion to compel discovery of the sexual history packet until the day before the witness violation hearing, the court addressed the packet's discovery at the hearing. --------
¶25 Although Rule 27.8(b)(3) addresses scope of admissibility of evidence within petitions to revoke probation, it does not address scope of discovery. However, Rules 15.1(b)(4) and 15.1(g) provide that a defendant may discover completed scientific tests, experiments, comparisons by experts for the State, and other matters for which the defendant shows he has a need for trial. A superior court has broad discretion in matters of discovery and its decision will not ordinarily be disturbed. Cornet Stores v. Superior Court, 108 Ariz. 84, 86 (1972). In the event of a dispute between the parties as to an item's relevance, the ultimate determination is a judicial one. Jolly v. Superior Court, 112 Ariz. 186, 192 (1975). The court did not abuse its discretion in finding the treatment provider's notes irrelevant because those notes were not the basis for probation revocation. The probation department did not have the notes nor did it use the notes to make the revocation petition. The packet, on the other hand, was relevant because the assertion was that Hale failed to properly complete it. The court acted within its discretion in denying disclosure of the provider's notes. Therefore, we find no error, fundamental or otherwise.
¶26 Hale also argues that the prosecution did not disclose a certain email to Harris. No evidence of any such email exists, and Hale never brought up any email during testimony. Hale argues that D.M. sent the email in response to Hale telling her that he had yet to complete the packet, so the email would not help Hale's appeal.
¶27 Hale argues prosecutorial misconduct occurred because the prosecution deliberately withheld discoverable information. Pursuant to Rule 15.1(a), the prosecutor shall make available certain information to the defendant in their possession at the time. If any party fails to make a disclosure required by Rule 15, then the other party may make a motion to compel discovery and for appropriate sanctions. Id. The court shall order disclosure and impose sanctions unless it finds that failure to comply was harmless, or that the information could not have been disclosed earlier with due diligence, and the information was disclosed immediately upon discovery. Id.
¶28 Once the court ordered disclosure of the sexual history packet, the prosecution disclosed the packet to Harris by the next day. Even if the State deliberately denied information before any court orders, it followed all court orders immediately. The State did not have time to respond to Harris's motion to compel discovery as he filed it the day before the probation violation hearing. No prosecutorial misconduct exists. We find no error, fundamental or otherwise.
E. Physical and/or Mental Reasons Precluding Packet Completion
¶29 Hale argues that he mentioned to probation officers and his therapists that he has memory and reading problems. He believes these problems precluded him from completing the sexual history packet. As we discussed above, C.D., D.M., and H.S. testified that none of them knew of any such physical or mental impairments. Hale never raised any physical or mental issues during his own testimony. The record provides no additional evidence of medical impairments preventing Hale from completing the packet.
¶30 The witness testimony supports the superior court's factual findings that neither probation officers nor the therapists knew or saw any physical and/or mental reasons precluding Hale from completing the sexual history packet. The record reflects that Hale never discussed these reasons with probation officers or the therapists, nor did he testify about any memory or reading issues when the judge directly asked him about packet completion. Viewing the evidence in the light most favorable to the court's factual findings, we defer to the court and find no error. The fact that there might be contradictory evidence does not make the evidence relied upon by the trial court insufficient to find a probation violation. Ballinger, 110 Ariz. at 425.
F. Probation Fees and Additional Jail Time
¶31 Hale "does not see the point" of the judge giving him ninety days of jail time and argues this jail time keeps him from abiding by the judge's directive. He also questions his new probation fees because he currently pays $70 per month and used to pay $40 per month.
¶32 The superior court found that Hale "earned [himself] a term in county jail" because of his failure to complete the sexual history packet. Pursuant to A.R.S. § 13-901(F), as part of probation, a court has the discretion to require imprisonment at whatever time or intervals the court shall determine, as long as that time does not exceed one year. Hale can still follow the judge's directive because he has until August 1, 2016, to complete the packet, approximately eight months after his November 2015 release. As Hale partially completed the packet, the punitive jail time does not prevent him from following the judge's directive. The court's discretion to require imprisonment does not interfere with Hale's ability to complete the packet.
¶33 Hale argues that his monthly fees should be reduced and that there should not be a delinquent fee. Hale used to pay $40 per month in probation fees. After finding that Hale violated probation, the judge set probation fees at $65 per month and a delinquent probation service fee of $40, payable in $5 increments. Hale argues he continued to pay the original probation fee. He argues that because the judge reinstated his probation, he should be reimbursed for those months he paid $40 during the revocation.
¶34 Pursuant to A.R.S. § 13-901(A), as a condition of probation, the court shall give a monthly fee of no less than $65 unless the court assesses a lesser fee after determining the inability of the probationer to pay the fee. Regardless of the previous fee amount, the statutory probation fee at the time the court reinstated probation is $65. Id.
¶35 Hale argues against the delinquent fee and asserts that he always paid the original probation fee. At a probation violation hearing, "a court may receive any reliable evidence not legally privileged, including hearsay." Rule 27.8(b)(3). A defendant who fails to object to the contents of the report waives his or her objections regarding the accuracy of the contents. State v. Gonzales, 233 Ariz. 455, 458, ¶ 11 (App. 2013). A court may consider a probation violation report in making its disposition because a purpose of those reports is to provide the court with information about a defendant's character and background. State v. Elmore, 174 Ariz. 480, 484 (App. 1992).
¶36 The probation violation report shows that Hale owes $40 for missing one month of payment. Pursuant to Rule 27.8(b)(3), the superior court may receive the probation violation report, which is not legally privileged, as evidence of Hale's failure to pay the $40 fee. During his testimony, Hale failed to object to the contents of the probation violation report, which specifically showed the missing $40 fee. Therefore, Hale waived any objection regarding the accuracy of that report. The court correctly accepted the probation violation report as evidence that Hale failed to pay $40 and correctly imposed a delinquent fee.
G. Self-Incriminating Statutes and Rights
¶37 Hale asks for clarification regarding his rights during treatment. He argues that A.P. and/or C.D. told him more than once that he had no rights, but that Harris told him he had a right to discuss his charges.
¶38 Hale has statutorily and constitutionally protected rights regarding self-incrimination. The relevant statute, A.R.S. § 13-4066 provides:
A. Any statement that is made by a person who undergoes sex offender treatment that is ordered by the court or that is provided by the state department of corrections or the department of juvenile corrections to a person who is convicted of an offense listed in chapter 14 or 35.1 of this title and any evidence that results from that treatment is not admissible against the person in any criminal or juvenile delinquency proceeding unless the person consents, except that the statement or evidence may be used pursuant to rule 404(b) and (c), Arizona rules of evidence.Further, the Fifth Amendment provides that no one shall be compelled to be a witness against himself in any criminal case. U.S. Const. amend. V. "A state cannot use involuntary or compelled statements against a criminal defendant." State v. Levens, 214 Ariz. 339, 341, ¶ 8 (App. 2007) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). Although the State may require a person on probation to answer questions truthfully, it cannot penalize the person if he asserts his Fifth Amendment right not to incriminate himself as part of the probation interview. Levens, 214 Ariz. at 342, ¶¶ 12-13.
B. This section does not apply if there is a reasonable belief that the person has committed a new violation of chapter 14 or 35.1 . . .
¶39 We find no allegation or evidence in the record that the probation violation and disposition involved a violation of Hale's rights against self-incrimination. Any concern that completing the sexual history packet or a later polygraph question might violate those rights is premature.
H. Contradictory Witness Testimony
¶40 Finally, Hale argues that the witness testimony contains contradictions, false information and dates, and deliberate omissions. We have reviewed the record and found few, if any contradictions. In any event, simply because the evidence might be conflicting, such contradictions do not make the evidence insufficient upon which to base a finding of a probation violation. Ballinger, 110 Ariz. at 425. Although contradictions by witnesses may affect their credibility, we defer to the superior court to weigh any contradictions as part of its credibility determinations. Hunter, 112 Ariz. at 130.
CONCLUSION
¶41 After careful review of the record, we find no meritorious grounds for reversal of the court's finding of a probation violation and its disposition. The evidence supports the superior court's decision, the incarceration imposed was within the sentencing limits, and Hale was present and represented at all stages of the proceedings. Accordingly, we affirm Hale's conviction and sentence.
¶42 Upon the filing of this decision, counsel shall inform Hale of the status of the appeal and his options. Defense 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). Hale shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.