In Re Jordan M. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE JORDAN M.
No. 1 CA-JV 21-0130
FILED 9-2-2021
Appeal from the Superior Court in Maricopa County
No. JV200949
The Honorable Virginia L. Richter, Judge Pro Tempore, Retired
AFFIRMED
COUNSEL
The Law Offices of Kevin Breger, Scottsdale
By Kevin Breger
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
B A I L E Y, Judge:
IN RE JORDAN M.
Decision of the Court
¶1 Jordan M. appeals from a superior court order terminating his
probation unsuccessfully and designating his offense as a felony. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 While on probation for a different offense, Jordan attempted
to steal a credit card. In May 2020, he pled delinquent to attempted theft, a
class six undesignated felony. The plea agreement stipulated that if Jordan
successfully completed probation the offense would be designated a
misdemeanor. See A.R.S. § 13-604(A). One term of Jordan’s probation
required that he “not use or possess any illegal drugs.”
¶3 In April 2021, Jordan asked the court to terminate probation
and designate his offense a misdemeanor. At a hearing, Jordan’s probation
officer recommended that the court designate the offense a misdemeanor
even though Jordan had consistently tested positive for marijuana
throughout his probation term. The probation officer testified that Jordan
had been compliant with the other probation terms and was successfully
working, getting an education, separating himself from negative influences,
and taking responsibility for his past actions. The probation officer stated
that Jordan’s drug testing did not indicate when he last used marijuana. For
his part, Jordan testified that he last used marijuana three to four weeks
before the hearing and had stopped using so he could end his probation.
¶4 The court released Jordan from probation but concluded that
he did not successfully complete probation and designated the offense a
felony. See A.R.S. § 13-604(A).
¶5 We have jurisdiction over Jordan’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-
120.21(A)(1) and Ariz. R.P. Juv. Ct. 103–04.
DISCUSSION
¶6 Jordan argues that because he complied with most of the
probation terms, the court abused its discretion by designating his offense
a felony based only on his marijuana use. He further argues that because
the drug testing did not indicate the amount of marijuana in his system and
he testified that he had stopped using marijuana, the “court relied on
information about test results without sufficient legal basis” for which
Jordan should have been given the benefit of the doubt.
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IN RE JORDAN M.
Decision of the Court
¶7 “The juvenile court has broad discretion to determine the
proper disposition of a delinquent juvenile,” In re Thomas D., 231 Ariz. 29,
31, ¶ 9 (App. 2012), and is permitted to designate a class six felony as a class
one misdemeanor, A.R.S. § 13-604(A). See State v. Smith, 166 Ariz. 118, 119
(App. 1990) (stating the statute “confers discretion upon the court with
respect to the ultimate designation of the offense”). We review the court’s
order terminating Jordan’s probation and its designation of his offense as a
felony for an abuse of discretion. See Thomas D., 231 Ariz. at 31, ¶ 9. We
review the record “only to determine if there is sufficient evidence to
sustain the juvenile court’s ruling.” In re Andrew A., 203 Ariz. 585, 587, ¶ 9
(App. 2002).
¶8 Here, to designate his offense a misdemeanor, the plea
agreement required that Jordan successfully complete all terms of
probation, however, he testified that he used marijuana only weeks before
the hearing. The court relied on Jordan’s testimony along with the drug test
results and testimony from the probation officer to determine Jordan had
not successfully complied with every probation term. See State v. Oatley, 174
Ariz. 124, 125-26 (App. 1993) (“Unless the plea agreement specifically gives
the court discretion to do otherwise, the court may not vary the terms of the
plea agreement without consent of the parties.”); A.R.S. § 8-349(O) (defining
“successfully” to mean “in the discretion of the court, the person satisfied
the conditions of probation”). The evidence is sufficient to support the
court’s ruling. See Andrew A., 203 Ariz. at 587, ¶ 9.
¶9 Because Jordan does not show the court relied on erroneous
facts or misapplied the law in exercising its discretion to designate the
offense a felony, he has not shown an abuse of discretion. See Thomas D.,
231 Ariz. at 31, ¶ 9.
CONCLUSION
¶10 For the reasons stated, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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