State v. Montero ( 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NOTICE: NOT FOR PUBLICATION.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.
PATRICK MONTERO, Appellant.
No. 1 CA-CR 13-0780
FILED 07-10-2014
Appeal from the Superior Court in Maricopa County
No. CR2003-012544-001
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 Terry J. Adams
Counsel for Appellant
STATE v. MONTERO
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for
Defendant Patrick Montero (“Defendant”) has advised us that, after
searching the entire record, he has been unable to discover any arguable
questions of law, and has filed a brief requesting us to conduct an Anders
review of the record. Defendant was given the opportunity to file a
supplemental brief but has not done so.
FACTS 1
¶2 In January 2005, Defendant pled guilty to (1) attempted
molestation of a child, a class three felony and dangerous crime against
children; and (2) attempted sexual conduct with a minor, a class three
felony and dangerous crime against children. The superior court
suspended the sentences and placed Defendant on concurrent lifetime
probation for each offense, with one year in county jail as a term and
condition of probation. Defendant served the one-year sentence before
being released on standard, lifetime probation.
¶3 About eight years later, Adult Probation Officer Jocelyn
Meyers filed a petition to revoke Defendant’s probation for violating five
terms of probation. The State decided to only proceed to prove that
Defendant violated term 16(B), failure to pay probation service fees. At
the probation violation hearing, in addition to Officer Meyers, Defendant
testified that he failed to make any payment toward the $1600 arrearage of
his probation fees even during the time period he had a job in 2013.
Consequently, the court found by a preponderance of the evidence that
Defendant violated term 16(B) and reinstated Defendant to lifetime
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2
STATE v. MONTERO
Decision of the Court
probation but ordered him to serve thirty days in jail, and an additional
four months in jail beginning June 1, 2014, which could be deferred or
deleted if Defendant complied with his probation terms.
¶4 We have jurisdiction over Defendant’s appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A)(1). 2
DISCUSSION
¶5 We have read and considered the opening brief and have
searched the entire record for reversible error. We find none. See Leon,
104 Ariz. at 300, 451 P.2d at 881. All of the probation violation
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The record, as presented, reveals that Defendant was
represented by counsel at all stages of the proceedings, and the sentence
for the probation violation imposed was within the statutory limits.
¶6 We note, however, that if Defendant tried but does not have
the ability to pay his monthly probation fee, he should seek a reduction of
the monthly fee as contemplated in A.R.S. § 13-901(A). Moreover, in
Bearden v. Georgia, 461 U.S. 660, 667-673 (1983), the U.S. Supreme Court
provided the analytical template for when a probationer’s failure to pay
fees or fines should result in revocation and imprisonment.
¶7 After this decision is filed, counsel’s obligation to represent
Defendant in this appeal has ended. Counsel must only inform Defendant
of the status of the appeal and Defendant’s future options, unless counsel
identifies an issue appropriate for submission to the Arizona Supreme
Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684
P.2d 154, 156-57 (1984). Defendant may, if desired, file a motion for
reconsideration or petition for review pursuant to the Arizona Rules of
Criminal Procedure.
2We cite the current version of the applicable statutes absent changes
material to this decision.
3
STATE v. MONTERO
Decision of the Court
CONCLUSION
¶8 Accordingly, we affirm Defendant’s probation violation
conviction and resulting sentence.
:gsh
4