Opinion
No. 1 CA-CR 12-0363
03-05-2013
STATE OF ARIZONA, Appellee, v. JENSON EDWARD THOMAS, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Michael A. Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellant Yuma
NOTE: 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Yuma County
No. S1400CR200800936
The Honorable Denise D. Gaumont, Commissioner
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Michael A. Breeze, Yuma County Public Defender
By Edward F. McGee, Deputy Public Defender
Attorneys for Appellant
Yuma Jenson Edward Thomas
Appellant Pro Se
Yuma JOHNSEN, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following the superior court's decision to designate Jenson Edward Thomas's attempted theft offense as a Class 6 felony because he had failed to comply with the terms of his probation. Thomas's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel now asks this court to search the record for fundamental error. Thomas asked his counsel to suggest that his offense should not have been designated a felony because his failure to comply with the terms of his probation was not his fault, and he filed a supplemental brief raising the same argument. After reviewing the entire record, we affirm the superior court's designation of Thomas's attempted theft offense as a Class 6 felony.
FACTS AND PROCEDURAL HISTORY
¶2 Thomas pled guilty to attempted theft and possession of drug paraphernalia and agreed to concurrent 18-month terms of probation for each offense commencing July 13, 2010. The plea agreement also provided that the attempted theft offense would remain undesignated pursuant to Arizona Revised Statutes ("A.R.S.") section 13-604(A) (West 2013) pending Thomas's successful completion of probation. ¶3 In September 2011, Thomas's probation officer petitioned the court to revoke Thomas's probation. The petition alleged Thomas had violated three terms of his probation by failing to report in July 2011 to the Probation Department as ordered, failing to obtain prior approval from the Probation Department before changing his place of residence in August 2011 and failing to submit to drug testing on three occasions in the summer of 2011. The petition recommended an arrest warrant be issued because Thomas's "whereabouts [were] unknown." ¶4 A bench warrant was issued for Thomas's arrest, and he was arrested without incident. Thomas then was released pending a hearing, but was required to carry a GPS tracking device with him at all times. At the subsequent hearing, Thomas admitted he violated two terms of his probation, changing his address without approval and failing to submit to drug testing, and the State dismissed the third alleged violation. ¶5 At a mitigation/aggravation hearing in December 2011, Thomas's counsel requested that either the GPS monitoring be terminated while Thomas's supervised probation continued or that probation simply be terminated altogether. The State noted his prior admitted probation violations, and the court reinstated supervised probation until May 19, 2012, with GPS monitoring to continue for another 30 days past the date of the mitigation/aggravation hearing. ¶6 In February 2012, Thomas's probation officer filed a second petition to revoke Thomas's probation, alleging he used methamphetamine and failed to submit to drug testing. At the violation hearing, however, Thomas and the State agreed to dismiss the petition provided Thomas maintain the GPS tracking device during the last 30 days of his supervised probation term. The court accepted the stipulation and dismissed the petition. ¶7 In May 2012, Thomas's probation officer petitioned the court to discharge Thomas and designate the attempted theft a Class 6 felony. The probation officer cited Thomas's missed drug tests and office visits, failure to inform the Probation Department how to contact him and the positive test for methamphetamine. At the disposition hearing, the State contended that Thomas's pattern of non-compliance with the terms of his probation made it inappropriate to designate the attempted theft offense a Class 1 misdemeanor. Despite Thomas's assertion that a felony designation would be "unduly harsh," the court agreed with the State and designated the offense a Class 6 felony. ¶8 Thomas now appeals the superior court's order designating the offense as a felony. Thomas asked his counsel to argue that his failure to comply with his probation terms was not his fault, but instead was due, in his counsel's words, to:
1. The fact that his former lawyer had led him to believe that he would secure early termination of probation . . . and that it would not be necessary for him to have any further interaction with the probation department; and¶9 Thomas also filed a one-page brief in which he argues that his "prior problems" with his non-compliance "had been explained or agreements made as they came up." He argues that he generally complied with the terms of his probation and asserts he was entirely compliant during the last month of his probationary period. ¶10 We have jurisdiction of Thomas's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(3) (West 2013).
2. The fact that the unpredictable nature of his work schedule was incompatible with the strict scheduling and virtual house arrest required by GPS tracking; and
3. The unreliability of both his telephone voice mail system and the GPS tracking device he had been issued.
Absent material revisions after the date of an alleged offense, we cite a statute's current version.
DISCUSSION
A. Issues Raised by Thomas.
¶11 Thomas argues the court erred in designating the attempted theft offense a felony because his admitted non- compliance with the terms of his probation was "not [] his fault." We review a superior court's designation of an offense for an abuse of discretion. State v. Soriano, 217 Ariz. 476, 478, ¶ 5, 176 P.3d 44, 46 (App. 2008). An abuse of discretion is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Englert v. Carondelet Health Network, 199 Ariz. 21, 27, ¶ 14, 13 P.3d 763, 769 (App. 2000) (quotation omitted). ¶12 Pursuant to A.R.S. § 13-604(A):
Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation . . . and refrain from designating the offense as a felony or misdemeanor until the probation is terminated.A.R.S. § 13-604(A). ¶13 At the disposition hearing, Thomas's counsel urged the court to designate the offense as a misdemeanor because, while Thomas had failed to comply with some of his probation terms at the end of his probation, there were "some things that really were very positive with the time on probation" and that "overall, he was in compliance with his probation." Specifically, Thomas's counsel noted that Thomas had no new criminal history, had successfully completed substance abuse counseling and initially was so successful with his probation that he was told he may be eligible for early release from probation. Thomas asserted during his mitigation/aggravation hearing that he stopped complying with the terms of his probation only after his probation officer told him that he was eligible for potential early release and that his former attorney said "he would take care of it." Thomas's counsel also argued that because the offense was a "very, very low level theft" and Thomas was 40 years old, "a felony on his record for what [was] essential compliance with probation is not appropriate . . . ." ¶14 The State argued that designation of the offense as a Class 6 felony was proper, however, because Thomas had "multiple opportunities to earn a misdemeanor by just doing what was required of him on probation." The State argued that it was unlikely that any attorney would advise his or her client not to comply with probation because of the possibility of early release, and that even if Thomas's lawyer had told him he could stop complying, that still would not excuse Thomas's repeated violations of his probation. ¶15 At an earlier hearing, Thomas admitted violating at least two terms of his probation. While he later testified that he admitted the violations only so that he would be released from custody, the record from the earlier proceeding demonstrates that Thomas knowingly and voluntarily admitted violating his probation. The court addressed Thomas personally, explained the nature of his admissions, the nature and range of possible sentences for the violations to which he was admitting, the constitutional rights he was foregoing by admitting the violations and his right to plead not guilty to the violations, and warned that Thomas was giving up the right to later appeal his guilty plea of those violations. The court also found a sufficient factual basis for the probation violations, which Thomas's counsel did not contest. ¶16 The evidence before the superior court as recounted above supported its determination that designating the offense a felony pursuant to A.R.S. § 13-604(A) was appropriate. While Thomas's supplemental brief points out that he was compliant with his probation during the last month of his probationary term, this factor is not dispositive. The court therefore did not abuse its discretion in determining that Thomas's attempted theft offense should be classified a Class 6 felony.
B. Fundamental Error Review.
¶17 The record reflects the proceedings at which the court designated the attempted theft a Class 6 felony complied with due process. Thomas was represented by counsel throughout the proceeding and was present at all critical stages.
CONCLUSION
¶18 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel's obligations pertaining to Thomas's representation in this appeal have ended. Defense counsel need do no more than inform Thomas of the outcome of this appeal and his future options, 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, 684 P.2d 154, 156-57 (1984). On the court's own motion, Thomas has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for reconsideration. Thomas has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
________________________
DIANE M. JOHNSEN, Judge
CONCURRING: ___________________________
PATRICIA K. NORRIS, Presiding Judge
________________________
JON W. THOMPSON, Judge