State v. Alcocer ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ERIC MEZA ALCOCER, Appellant.
No. 1 CA-CR 13-0860
FILED 07-31-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-152063-001
The Honorable J. Justin McGuire, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.
STATE v. ALCOCER
Decision of the Court
H O W E, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel
for Alcocer asks this Court to search the record for fundamental error.
Alcocer was given an opportunity to file a supplemental brief in propria
persona. He has not done so. After reviewing the record, we affirm the trial
court’s revocation of Alcocer’s probation and the sentence imposed.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
trial court’s judgment and resolve all reasonable inferences against Alcocer.
State v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 Alcocer and his younger brother were at their home and
began to argue. Alcocer hit his brother in the face and stomach several
times, held his brother against the wall with one hand around his throat,
and struck him in the face until another family member could stop the fight.
The police were called and Alcocer was arrested.
¶4 Alcocer was charged with one count of aggravated assault, a
class six felony and a domestic violence offense. He was offered a plea
agreement to be placed on intensive probation for three years beginning
January 2, 2013, the terms of which included attending and paying for
domestic violence offender treatment, attending anger control counseling,
submitting to urinalysis testing, community restitution, and refraining
from contact with the victim. Alcocer was advised of the range of possible
sentences and the availability of probation. Alcocer accepted the plea
agreement and plead guilty to the charge.
¶5 Alcocer reviewed the terms and conditions of probation with
his probation officer and signed a review and acknowledgement stating
that he understood what was required of him while on probation. Alcocer
did not report to the probation office as directed and did not attend three
office visits. He lied to his probation officer about completing community
restitution hours and submitting urinalysis tests.
¶6 After a month of non-compliant behavior, on February 27,
2013, Alcocer reported to his probation officer that he had contact with a
police officer. A police officer had observed Alcocer and his girlfriend
having a verbal argument in a park, but found no physical evidence of
abuse and no charges were filed. On March 7, 2013, an officer was notified
that Alcocer was threatening a member of the community and referred the
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STATE v. ALCOCER
Decision of the Court
victim to the proper authorities. On April 12, 2013, Alcocer was arrested for
criminal trespassing, kidnapping, assault and endangerment, but no
charges were filed.
¶7 On April 15, 2013, Alcocer’s probation officer petitioned to
revoke probation due to Alcocer’s failure to report to the officer, participate
in domestic violence counseling, submit to all drug testing, and pay certain
fees. A revocation arraignment was held, where Alcocer initially denied
that he violated the terms of his probation. Later, Alcocer admitted to
violating condition 15, which required him to “be financially responsible by
paying all restitution, fines, and fees in [his] case as imposed by the Court.”
The court suspended the imposition of sentence and continued Alcocer on
probation for three years, expiring January 2, 2016.
¶8 After the reinstatement of probation, Alcocer’s probation
officer reported that Alcocer continued committing the same violations as
he had before. Further, Alcocer submitted a positive urinalysis for
marijuana. He did not regularly attend the domestic violence treatment
program or maintain full-time employment and frequently violated his
probation schedule and community restitution obligations.
¶9 On September 23, 2013, Alcocer’s probation officer petitioned
again to revoke Alcocer’s probation. The report stated that Alcocer did not
comply with the terms of his probation, including failing to report to the
officer, to cooperate in domestic violence counseling, abstain from illegal
substances, obtain employment, and pay certain fees.
¶10 On November 4, 2013, a probation violation hearing was held.
The court found that the State had proven by a preponderance of the
evidence that Alcocer failed to actively participate in the counseling
programs that were required by his probation. The court revoked Alcocer’s
probation and sentenced him to imprisonment for the presumptive term of
one year with credit for eighty days. Alcocer timely appealed.
DISCUSSION
¶11 We will not disturb the trial court’s finding that a defendant
violated probation unless the finding “is arbitrary or unsupported by any
theory of evidence.” State v. Tallow, 231 Ariz. 34, 39 ¶ 15, 290 P.3d 228, 233
(App. 2012) (quoting State v. Stotts, 144 Ariz. 72, 79, 695 P.2d 1110, 1117
(1985). Alcocer failed, on multiple occasions, to comply with the conditions
of his probation. The court acted well within its discretion in revoking
Alcocer’s probation and sentencing him to the presumptive prison term. See
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STATE v. ALCOCER
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A.R.S. § 13-917(B) (trial court may revoke probation in its discretion and
impose prison term as authorized by law).
¶12 Counsel for Alcocer has advised this Court that after a
diligent search of the entire record, he has found no arguable question of
law. We have read and considered counsel’s brief and fully reviewed the
record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We
find none. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Alcocer
was represented by counsel at all stages of the proceedings and the sentence
imposed was within the statutory limits. We decline to order briefing and
we affirm the revocation of Alcocer’s probation and the sentence imposed.
¶13 Upon the filing of this decision, defense counsel shall inform
Alcocer of the status of his appeal and of his future 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, 684 P.2d 154, 156-57
(1984). Alcocer shall have thirty days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review. On the Court’s own motion, we extend the time for Alcocer to
file a pro per motion for reconsideration to thirty days from the date of this
decision.
CONCLUSION
¶14 We affirm the revocation of Alcocer’s probation and the
sentence imposed.
:gsh
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