State v. Mattison

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CIRCE DIANNE MATTISON, Appellant.
No. 1 CA-CR 15-0444
FILED 2-11-2016
Appeal from the Superior Court in Yavapai County
No. V1300CR201080060
The Honorable Michael R. Bluff, Judge
JUDGMENT AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
David Goldberg, Attorney at Law, Fort Collins, CO
By David Goldberg
Counsel for Appellant
Circe Mattison, Goodyear
Appellant
STATE v. MATTISON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following the revocation of Circe Mattison's probation and resulting
imposition of sentence. Mattison's counsel has searched the record and
found no arguable question of law that is not frivolous. See Smith v. Robbins,
528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530 (App.
1999). Counsel now asks this court to search the record for fundamental
error. Mattison has filed a supplemental brief identifying various issues,
which we address below. After reviewing the entire record, we affirm the
revocation of Mattison's probation and the imposition of her sentence, but
we modify the judgment of conviction to reflect 63 days of presentence
incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶2 In 2010, Mattison pled guilty to four counts of forgery, Class
4 felonies.1 The superior court suspended imposition of sentence and
placed Mattison on probation for three years. Nearly three years later,
Mattison's probation officer filed a petition to revoke probation because
Mattison had an outstanding restitution balance of $5,032.87. After a
hearing, the court extended Mattison's probation for another two years.
Following the filing of a second petition to revoke in April 2014, the court
reinstated probation and placed Mattison on supervised probation for four
years. In May 2015, her probation officer filed a third petition to revoke.
After a hearing, the court revoked Mattison's probation and imposed
concurrent sentences of 2.5 years' incarceration on each count and awarded
62 days of presentence incarceration credit.
1 Upon review, we view the facts in the light most favorable to
sustaining the judgment and resolve all inferences against Mattison. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. MATTISON
Decision of the Court
¶3 Mattison timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033
(2016).2
DISCUSSION
A. Issues Raised in Supplemental Brief.
¶4 Mattison contends the superior court erred when it found she
violated her probation by failing to complete the required amount of
community service. At the violation hearing, Mattison's probation officer
testified Mattison failed to complete her community service. Although
Mattison testified she completed the 20 hours of service, she did not offer
any supporting evidence. Accordingly, the superior court did not err when
it found by a preponderance of evidence that Mattison violated the
community-service term of her probation.
¶5 Mattison also asserts that after she was diagnosed with
serious mental illness two years ago, she was told she would be transferred
to a probation officer with more specialized experience. The transfer,
however, never occurred. She contends that if she had been assigned a
different probation officer, she would have complied with the terms of her
probation. Mattison, however, provides no legal support for the
proposition that her diagnosis entitled her to a different probation officer,
and the record does not demonstrate how a transfer would have allowed
her to meet her probation requirements. The court revoked Mattison's
probation for failing to report to her probation officer as required in April
2015 and failing to complete community service hours. Mattison testified
that she did not report in April because she made a mistake and reported
twice in March. As noted above, Mattison contends she did complete her
community service hours. Thus, nothing in the record suggests that
Mattison's inability to comply with her probation requirements resulted
from a failure to transfer her to a specialized probation officer.
¶6 The court properly sentenced Mattison to 2.5 years'
incarceration, the presumptive sentence for a Class 4 non-dangerous, non-
repetitive felony. See A.R.S. § 13-702(A), (D) (2016). Mattison asks us to
reduce her sentence so that she can care for her family and more quickly
pay her outstanding restitution balance. But Mattison's family obligations
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. MATTISON
Decision of the Court
and financial difficulties did not require the superior court to reduce her
sentence, and it is not the place of this court to do so. See State v. Long, 207
Ariz. 140, 147, ¶ 37 (App. 2004) ("Absent finding a clear abuse of discretion,
we will not modify a sentence that is within the statutory limits.").
Accordingly, we decline Mattison's request.
B. Due Process Review.
¶7 Mattison was present and represented by counsel at all critical
stages of the revocation proceeding. See State v. Jackson, 16 Ariz. App. 476,
478 (1972) ("A defendant is entitled to the presence and participation of [his
or her] counsel at the hearing on revocation of probation and at the
resulting imposition of sentence.").
¶8 Pursuant to Arizona Rule of Criminal Procedure 27.8(b)(3),
the State must prove a probation violation by a preponderance of the
evidence. The court's determination that a defendant violated a probation
term will not be reversed unless it is unsupported by any theory of the
evidence. State v. Tatlow, 231 Ariz. 34, 39, ¶ 15 (App. 2012). The court found
the State proved by a preponderance of the evidence that Mattison violated
her probation by failing to report as directed and by failing to complete her
hours of community service. Sufficient evidence supports the superior
court's determination that Mattison violated probation. She testified she
did not report to her probation officer in April 2015 and her probation
officer testified Mattison had completed only 40 of the required 60 hours of
community service. The court can revoke probation only for a violation of
a condition of which Mattison had written notice. See Ariz. R. Crim. P.
27.8(c)(2). Mattison signed and received written copies of her probation
conditions, including the conditions she was accused of violating. In June
2014, Mattison received a copy of the condition that she complete 60 hours
of community service, and in January 2015, Mattison received a copy of the
condition requiring her to report to her probation officer either the first or
third Monday of every month. Before sentencing, the court provided
Mattison an opportunity to speak. Thereafter, it revoked her probation and
imposed a sentence within the statutory range for four counts of forgery.
¶9 Mattison's disposition hearing was held only four days after
the court found her in violation. See Ariz. R. Crim. P. 27.8(c)(1) ("A
disposition hearing shall be held no less than 7 nor more than 20 days after
a determination that a probationer has violated a condition or regulation of
probation."). Under Arizona Rule of Criminal Procedure 27.8(d), however,
a probationer may waive a disposition hearing and proceed directly to
disposition after a violation finding. There is no indication that Mattison
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STATE v. MATTISON
Decision of the Court
was prejudiced by the court's decision to set her disposition hearing only
four days after the finding of a violation. Probation violations are "viewed
from a due process standpoint, and a revocation reversed only if prejudice
is demonstrated." State v. Lee, 27 Ariz. App. 294, 295 (1976). Mattison was
sentenced to 2.5 years' incarceration, the same sentence she faced when she
pled guilty to the four counts of forgery. See State v. Huante, 111 Ariz. 236,
237 (1974) (Rule 27 time limits allow a probationer to prepare his/her
defense and protect a probationer from a lengthy sentence).
¶10 The court awarded Mattison 62 days of presentence
incarceration credit. The record reveals Mattison was incarcerated two
days in 2010, three days in 2013, 28 days in 2014 and 30 days in 2015, for a
total of 63 days. Thus, Mattison should be awarded one additional day of
presentence incarceration credit. We modify the sentence accordingly. See
Ariz. R. Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494, 495-96 (App. 1992)
(modifying an award of presentence incarceration credit without remand
to superior court).
CONCLUSION
¶11 For the foregoing reasons, we affirm the revocation of
probation and the imposition of sentences as modified.
¶12 After the filing of this decision, defense counsel's obligations
pertaining to Mattison's representation in this appeal have ended. Defense
counsel need do no more than inform Mattison of the outcome of this
appeal and her future options, unless, upon review, counsel finds "an issue
appropriate for submission" to the Arizona Supreme Court by
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STATE v. MATTISON
Decision of the Court
petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On
the court's own motion, Mattison has 30 days from the date of this decision
to proceed, if she wishes, with a pro per motion for reconsideration.
Mattison has 30 days from the date of this decision to proceed, if she wishes,
with a pro per petition for review.
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