In Re Ruben P. ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 RUBEN P.
No. 1 CA-JV 21-0018
FILED 7-20-2021
Appeal from the Superior Court in Maricopa County
No. JV204923
The Honorable Wendy S. Morton, Judge Pro Tempore
AFFIRMED
COUNSEL
The Law Offices of Kevin Breger, PLLC, Scottsdale
By Kevin Breger
Counsel for Appellant Ruben P.
Maricopa County Attorney’s Office, Phoenix
By Faith C. Klepper
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani
joined.
IN RE RUBEN P.
Decision of the Court
T H U M M A, Judge:
¶1 Ruben P. argues the superior court’s order committing him to
the Arizona Department of Juvenile Corrections (ADJC) was an abuse of
discretion. Because Ruben P. has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Ruben began having contact with law enforcement in
September 2018, just before he turned 14. Over the next 26 months, four
police departments and the Maricopa County Sherriff’s Office had
significant contacts with Ruben. The State filed delinquency petitions
accusing Ruben of a dozen felonies and additional misdemeanors. The
charges included shoplifting, assault of a teacher, possession of marijuana,
possession of a firearm, unlawful discharge of a firearm, unlawful use of
means of transportation, theft of means of transportation and burglary.
¶3 Given concerns about his failure to appear and his behavior
in the community, the court detained Ruben several times. When released
on an electronic monitor, he cut off the monitor. Ruben was then on warrant
status for more than two months until he was arrested for theft of means of
transportation and detained until his disposition. The Juvenile Probation
Officer (JPO) indicated Ruben had been involved with a gang, had a history
of testing positive for illegal substances and running away, and he had
refused to participate in counselling.
¶4 The specific charges leading to this appeal resulted in Ruben
pleading delinquent to four felonies: (1) possession of a firearm committed
in May 2019; (2) solicitation to commit burglary in the third degree
committed in October 2019; (3) theft committed in April 2020 and (4) theft
committed in November 2020. The disposition hearing for these
delinquencies was held in January 2021.
¶5 In early December 2020, a psychologist diagnosed Ruben with
various disorders (including “moderate to severe” conduct disorder),
stating “it would be a mistake to allow Ruben to return to the community
at this point,” adding he “cannot be trusted with any type of freedom.” The
psychologist “recommended Ruben be placed in an intensive behavior
modification level of group home.” At the disposition hearing, the
alternatives were (1) committing Ruben to ADJC or (2) placing him on
probation at Sycamore Canyon, a residential treatment center.
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IN RE RUBEN P.
Decision of the Court
¶6 Before the disposition hearing, the JPO recommended
commitment to ADJC because it was the “best placement for Ruben due to
his run[ning away] history and his behaviors in the community.” A Juvenile
Intensive Probation Supervision supervisor overseeing the case agreed
with Ruben’s placement at ADJC. At the disposition hearing, the JPO stated
that Ruben had been accepted into Sycamore Canyon, but she still
recommended commitment to ADJC because Sycamore Canyon was not a
secure facility. The State also recommended that Ruben be committed to
ADJC. In contrast, Ruben’s counsel and his guardian ad litem asked that he
be placed at Sycamore Canyon, adding ADJC was a “bit extreme.” Ruben
was given the opportunity to address the court but declined to do so.
¶7 Having weighed and assessed the information provided
about the two possible alternatives, the court committed Ruben to ADJC. In
doing so, the court cited his referral history, poor performance on release,
the nature of the admitted felony delinquencies and the need for a secure
environment. Although this was Ruben’s first felony disposition, the court
gave him a repeat felony offender warning twice,1 explaining that
commitment to ADJC was a possibility if he committed offenses in the
future. Although the first misstatement went uncorrected, the State
corrected the court the second time and, as a result, the court correctly gave
Ruben his first-time felony juvenile offense warning at the end of the
disposition. This court has jurisdiction over Ruben’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-
235(A), 12-120.21(A) and 12-2101(A) and Ariz. R.P. Juv. Ct. 103–04 (2021).2
DISCUSSION
¶8 Ruben argues that the court abused its discretion by
committing him to ADJC. The superior court has broad discretion to
determine the appropriate disposition in a delinquency. In re Miguel R., 204
Ariz. 328, 331 ¶ 3 (App. 2003). This court reviews the disposition for an
abuse of discretion, viewing the evidence in the light most favorable to
sustaining the superior court’s ruling. Id.; In re John M., 201 Ariz. 424, 426
¶ 7 (App. 2001).
1The court read from Arizona Revised Statutes (A.R.S.) § 8-341(E) instead
of A.R.S. § 8-341(C).
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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IN RE RUBEN P.
Decision of the Court
¶9 Ruben argues that the court’s misstatements in providing him
the repeat felony offender warning suggests that it was a factor in
committing him to ADJC. A court’s misstatement, however, is not an abuse
of discretion if it did not affect the court’s disposition. For example, in In re
Harry B., the superior court made a misstatement about the location of the
juvenile’s threatening act, which the appellate court found did not result in
an abuse of discretion because the misstatement was unimportant to the
court’s disposition. 193 Ariz. 156, 159 ¶ 10 (App. 1998).
¶10 Although acknowledging the Harry B. analysis, Ruben seeks
to distinguish it by arguing that the two misstatements about the repeat
felony offender warning were important to the court’s disposition. This,
Ruben asserts, meant the court relied on inaccurate information in
committing him to ADJC. But there is no indication that the court relied on
the misstatements in determining Ruben’s disposition. Instead, the record
shows the court corrected the misstatement after the State raised the issue,
and the court relied on undisputed facts in making the disposition,
specifying Ruben’s numerous referrals, poor performance upon release, the
nature of the four admitted felony adjudications and need to be placed in a
secure environment.
¶11 Relying on In re Melissa K., Ruben further argues the court did
not consider relevant commitment guidelines when committing him to
ADJC. 197 Ariz. 491, 495 ¶¶ 14, 16 (App. 2000). The court is required to
consider factors listed in the commitment guidelines promulgated by the
Arizona Supreme Court. See A.R.S. § 8-246(C); Ariz. Code of Jud. Admin.
§ 6-304(C)(1). The guidelines, however, “do not place constraints on the
juvenile court’s discretion to determine” whether commitment to ADJC is
appropriate. In re Niky R., 203 Ariz. 387, 390 ¶ 12 (App. 2002) (citation
omitted); see also State v. Lee, 189 Ariz. 608, 616 (1997) (“[J]udges ‘are
presumed to know the law and to apply it in making their decisions.’”)
(citation omitted).
¶12 As applicable here, the guidelines state that, when
considering commitment to ADJC, the court must:
a. Only commit those juveniles who are
adjudicated for a delinquent act and whom the
court believes require placement in a secure care
facility for the protection of the community;
b. Consider commitment to ADJC as a final
opportunity for rehabilitation of the juvenile, as
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IN RE RUBEN P.
Decision of the Court
well as a way of holding the juvenile
accountable for a serious delinquent act or acts;
c. Give special consideration to the nature
of the offense, the level of risk the juvenile poses
to the community, and whether appropriate less
restrictive alternatives to commitment exist
within the community; and
d. Clearly identify, in the commitment
order, the offense or offenses for which the
juvenile is being committed and any other
relevant factors that the court determines as
reasons to consider the juvenile a risk to the
community.
Ariz. Code of Jud. Admin. § 6-304(C)(1). As noted, the superior court
identified these factors and complied with these guidelines in committing
Ruben to ADJC. The court also noted that Ruben had “victimized people in
[the] community” and that it did not trust him in the community because
of his escalating behavior, eventually leading to the four delinquent felony
acts Ruben admitted.
¶13 In Melissa K., this court found that there was an abuse of
discretion in part because the court did not follow the commitment
guidelines. 197 Ariz at 495 ¶ 15. Melissa K., however, involved a probation
revocation where the juvenile was adjudicated incorrigible for running
away from home and then was adjudicated delinquent for misdemeanor
shoplifting. Id. at 492 ¶¶ 2–3. At the time, the guidelines stated that “[a]
nuisance offender” was “presumptively inappropriate for commitment to
ADJC.” Id. at 495 ¶¶ 14–15. Concluding the juvenile was a “nuisance
offender,” Melissa K. vacated commitment to ADJC, which contradicted the
guidelines. Id. at 495 ¶¶ 15–16. Here, by contrast, commitment of Ruben to
ADJC was proper under the guidelines and appropriate based on the facts
presented. Unlike Melissa K., there is no argument that Ruben is a “nuisance
offender,” a phrase no longer used in the guidelines. Instead, he was found
delinquent of several serious felony offenses. Nor does application of the
guidelines otherwise suggest that commitment was inappropriate for
Ruben.
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IN RE RUBEN P.
Decision of the Court
¶14 Ruben also relies on Melissa K. to argue the court abused its
discretion by not exploring less restrictive alternatives before committing
him to ADJC. In Melissa K., the court noted there was “no evidence that the
court attempted but failed to find a non-correctional secure drug and
behavioral treatment program” for the juvenile. Id. at 495 ¶ 16. But unlike
Melissa K., there is record evidence that the court was aware of other
alternatives and considered them. During the disposition hearing and
before his commitment, the court knew that Ruben had been accepted to
Sycamore Canyon. Faced with two potential dispositional alternatives --
ADJC or Sycamore Canyon -- the court, in its discretion, decided that a
secure facility would be best for Ruben. On this record, Ruben has not
shown that was an abuse of the court’s discretion.
CONCLUSION
¶15 Ruben’s commitment to ADJC is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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