State v. Greathouse ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STATE OF ARIZONA, Appellee,
v.
JAMES MICHAEL GREATHOUSE, Appellant.
No. 1 CA-CR 13-0899
FILED 4-2-2015
Appeal from the Superior Court in Maricopa County
No. CR1988-003253
The Honorable Justin Beresky, 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 Christopher V. Johns
Counsel for Appellant
James Michael Greathouse
Appellant
STATE v. GREATHOUSE
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 After pleading guilty to child molestation and attempted
child molestation in 1989, James Michael Greathouse served a 22-year
prison sentence for child molestation, after which he began serving lifetime
probation for the attempted child molestation conviction. The superior
court revoked his probation in 2013, and he now challenges the revocation
decision and the resulting sentence.
¶2 Greathouse’s counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), certifying that, after a diligent search of the record, he found no
arguable question of law that was not frivolous, and asking this court to
search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537,
¶ 30, 2 P.3d 89, 96 (App. 1999). Greathouse filed a document that we will
treat as a supplemental brief, in which he asserts primarily that his original
sentence was improper because he should not have been placed on lifetime
probation after serving the original prison term. After reviewing the
record, we affirm the revocation of Greathouse’s probation and the
resulting sentence.
FACTS AND PROCEDURAL BACKGROUND
¶3 In 1989, pursuant to a plea agreement, Greathouse pleaded
guilty to one count of child molestation and one count of attempted child
molestation, both dangerous crimes against children. In 1991, Greathouse
was sentenced to 22 years’ imprisonment for child molestation and lifetime
probation for attempted child molestation.1 At sentencing, Greathouse
reviewed and acknowledged the terms of probation, which included
“actively participat[ing] and cooperat[ing] in any program of counseling or
1 Greathouse was resentenced following a petition for post-conviction
relief not relevant to this appeal.
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STATE v. GREATHOUSE
Decision of the Court
assistance as determined by APD [Adult Probation Department], or as
required by law, given assessment result and/or [his] behavior.”
¶4 Upon release from incarceration on July 11, 2010, Greathouse
began his lifetime probation term. In August 2011, Greathouse’s probation
officer filed a petition to revoke probation based on Greathouse’s alleged
failure to (1) participate and cooperate in counseling sessions, (2) abide by
special intensive probation conditions, and (3) undergo psychological
testing and group counseling for sex offenders. The superior court found
violations but reinstated probation to give Greathouse “one last chance to
show . . . [he] can participate in treatment and counseling.”
¶5 In July 2013, Greathouse’s probation officer again filed a
petition to revoke based on Greathouse’s failure to actively participate in
sex offender treatment programs and counseling. After a disposition
hearing, the superior court found that Greathouse had violated his
conditions of probation and revoked probation. The superior court
sentenced Greathouse to six years’ incarceration, with 239 days of
presentence incarceration credit.
¶6 Greathouse timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.2
DISCUSSION
I. Lifetime Probation.
¶7 Greathouse argues that he should not have been placed on
lifetime probation after serving his original sentence because there was no
statutory authority for such probation. But this argument cannot be raised
in the instant appeal, which is limited to contesting the superior court’s
ruling that Greathouse violated conditions of probation and the resulting
sentence. Any challenge to Greathouse’s original sentence must be raised
in a post-conviction proceeding under Arizona Rule of Criminal Procedure
32. See Ariz. R. Crim. P. 17.1(e) (by pleading guilty, noncapital defendant
waives right to direct appeal and may seek review only by post-conviction
proceedings under Rule 32).
¶8 Moreover, we note that, prior to January 1, 1994, lifetime
probation was in fact an available punishment for attempted child
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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STATE v. GREATHOUSE
Decision of the Court
molestation. State v. Peek, 219 Ariz. 182, 184, ¶ 10, 195 P.3d 641, 643 (2008).
Although as a result of legislation enacted in 1993, there was a period of
time during which such punishment was not available, the Arizona
Legislature reinstated the availability of such punishment in 1997. Id. at
183–84, ¶¶ 7–10, 195 P.3d at 642–43. Accordingly, “lifetime probation was
clearly available for an attempted child molestation occurring before 1994
or after the effective date of the 1997 amendment.” Id. at 184, ¶ 10, 195 P.3d
at 643. Here, the crime at issue occurred prior to 1994. Thus, lifetime
probation was an available punishment.
II. Anders Review.
¶9 We have reviewed the record for reversible error. See Leon,
104 Ariz. at 300, 451 P.2d at 881. We find none.
¶10 Greathouse was present and represented by counsel at all
critical stages of the revocation proceedings. The record reflects that the
superior court afforded Greathouse his rights under the federal and state
constitutions and our statutes, and the revocation proceedings were
conducted in accordance with the Arizona Rules of Criminal Procedure.
¶11 The State must prove a probation violation by a
preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3). The superior
court’s determination that a defendant violated a term of probation will not
be reversed unless the determination is “arbitrary and unsupported by any
theory of the evidence.” State v. Tatlow, 231 Ariz. 34, 39, ¶ 15, 290 P.3d 228,
233 (App. 2012) (citation omitted).
¶12 Here, sufficient evidence supports the superior court’s
determination that Greathouse violated probation. Greathouse was aware
of the conditions of probation and agreed to comply with such conditions
and terms. The superior court’s reinstatement of probation in 2011 gave
Greathouse a second opportunity to comply, but he nevertheless failed to
do so. Greathouse was notified by two different probation officers of the
need to participate in sex offender treatment and counseling, but he refused
to comply, failing to schedule follow-up appointments with treatment and
counseling services on several occasions. Accordingly, the superior court’s
determination that Greathouse violated the terms and conditions of his
probation is supported by sufficient evidence.
¶13 At the disposition proceeding, Greathouse and his counsel
were given an opportunity to speak, and the court imposed a sentence
within the statutory range for attempted child molestation, with proper
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STATE v. GREATHOUSE
Decision of the Court
credit given for presentence incarceration. Accordingly, we find no error
in the sentencing proceedings conducted by the court.
¶14 After the filing of this decision, defense counsel’s obligations
pertaining to Greathouse’s representation will end after informing him of
the outcome of this appeal and his future options. See State v. Shattuck, 140
Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Greathouse shall have 30
days from the date of this decision to proceed, if he desires, with a pro se
motion for reconsideration or petition for review.
CONCLUSION
¶15 We affirm the superior court’s ruling revoking Greathouse’s
probation and imposing a sentence of six years’ imprisonment.
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