Opinion
No. 2 CA-CR 2018-0175
03-04-2019
THE STATE OF ARIZONA, Appellee, v. BILLY RAY SNELL JR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pinal County
No. S1100CR201601062
The Honorable Lawrence Wharton, Judge Pro Tempore
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee
Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred.
ESPINOSA, Judge:
¶1 Appellant Billy Snell Jr. appeals from the trial court's order revoking his probation and imposing a presumptive, 2.5-year prison term. Because Snell's attempt to challenge his conviction is barred and he has not established fundamental error otherwise, we affirm.
¶2 Pursuant to a plea agreement, Snell was convicted of failure to register as a sex offender in 2016. The trial court suspended the imposition of sentence and placed Snell on a five-year term of probation. Snell sought and was denied post-conviction relief in 2017 and twice in 2018.
¶3 The state in April 2017 had filed a petition to revoke Snell's probation, alleging various violations of the terms of his probation, including that he had used methamphetamine. After a contested violation hearing, the trial court found he had violated the terms of his probation by using methamphetamine and revoked his probation, sentencing him to a 2.5-year prison term.
¶4 On appeal, Snell argues "he should not have been on probation in the first place because the underlying conviction is of questionable validity." But Snell may not attack his conviction in this proceeding, where his appeal is limited to the probation revocation proceeding. See A.R.S. § 13-4033(A)(3); State v. Herrera, 121 Ariz. 12, 14-15 (1978) (appellant procedurally barred from attacking constitutional merits of original judgment of conviction in probation revocation matter). And, because he pled guilty to the charge, he waived his right to appeal the conviction and was limited to relief pursuant to Rule 32, Ariz. R. Crim. P., which, as detailed above, he has sought and been denied on similar grounds to those presented here. Snell argued in his first petition for post-conviction relief that he "was no longer required to register in the state of Colorado." He was denied relief on that claim and failed to seek review. We therefore do not address the challenge to his conviction.
¶5 Snell also maintains that the sentencing judge was "confused as to the ground for revoking [his] probation." Snell did not object on this basis below and has therefore forfeited review for all but fundamental error. State v. Escalante, 245 Ariz. 135, ¶ 1 (2018); State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). He has failed, however, to explain how in the absence of any purported confusion he would have received a different sentence than the presumptive one imposed. Because he has not argued, much less established, that he was prejudiced, we cannot say he has established fundamental error entitling him to relief. See Escalante, 245 Ariz. 135, ¶ 21 (defendant "must make a separate showing of prejudice"); cf. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (concluding argument waived because defendant "d[id] not argue the alleged error was fundamental").
¶6 Accordingly, the trial court's order revoking Snell's probation, as well as his sentence as imposed, are affirmed.