State v. Josytewa

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JACKSON JOSYTEWA, Appellant.
No. 1 CA-CR 17-0311
FILED 1-30-2018
Appeal from the Superior Court in Maricopa County
No. CR2010-161279-001
The Honorable John R. Doody, 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 Carlos Daniel Carrion
Counsel for Appellant
STATE v. JOSYTEWA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Jennifer M. Perkins joined.
J O N E S, Judge:
¶1 Jackson Josytewa appeals the trial court’s finding that he
violated the terms of his probation and its order reinstating him on
probation. After searching the entire record, Josytewa’s defense counsel
identified no arguable question of law that is not frivolous. Therefore, in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), defense counsel asks this Court to search the record for
fundamental error. Josytewa was granted an opportunity to file a
supplemental brief in propria persona but did not do so. After reviewing the
entire record, we find no error. Accordingly, the trial court’s findings and
orders are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2011, Josytewa pleaded guilty to two counts of
sexual abuse and one count attempted molestation of a child.1 The
following month, the trial court sentenced Josytewa to an aggravated term
of six years’ imprisonment for one count of sexual abuse, followed by two
terms of lifetime probation for the remaining counts. As part of his
probation, Josytewa was instructed, in writing, to “obtain prior written
approval of the [probation department] before making any temporary or
permanent changes to [his] residence.”
¶3 In January 2017, Josytewa’s probation officer filed a petition
to revoke his probation upon the grounds that Josytewa changed residences
1 We view the facts in the light most favorable to upholding the trial
court’s finding that Josytewa violated the conditions of his probation. State
v. Vaughn, 217 Ariz. 518, 519 n.2, ¶ 3 (App. 2008) (citing State v. Maldonado,
164 Ariz. 471, 473 (App. 1990)).
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STATE v. JOSYTEWA
Decision of the Court
without first obtaining written approval to do so.2 At the violation hearing,
the probation officer testified Josytewa had permission to reside in a
transitional housing facility but then moved into an apartment without
consulting the probation department.
¶4 Josytewa admitted he moved residences at least twice
without first obtaining written permission from the probation department.
Josytewa, however, believed he could do so based upon prior, general
discussions with the probation department wherein he expressed his
dissatisfaction with the transitional housing and desire to relocate.
¶5 After the hearing, the trial court found the State proved
Josytewa moved residences without prior written approval in violation of
the terms of his probation. The court reinstated Josytewa on probation and
ordered he serve twenty days’ imprisonment as a condition thereof.
Josytewa timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶6 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). The trial court’s finding that Josytewa violated a
condition of his probation is supported by the evidence, including his own
admissions. See Vaughn, 217 Ariz. at 521, ¶ 14 (“This court will uphold the
superior court’s ‘finding that a probationer has violated probation unless
the finding is arbitrary or unsupported by any theory of evidence.’”)
(quoting State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (1999)). So far as the record
reveals, Josytewa was represented by counsel at all stages of the
proceedings, and all of the proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. See generally Ariz. R. Crim. P. 27.
Further, the reinstatement of Josytewa on probation was a permissible
disposition. See Ariz. R. Crim. P. 27.8(c)(2).
CONCLUSION
¶7 The trial court’s orders finding Josytewa violated the terms of
his probation and reinstating him on probation are affirmed.
2 The probation officer alleged other violations, but the State did not
meet its burden of proof as to those circumstances, and they are not subject
to review on appeal.
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STATE v. JOSYTEWA
Decision of the Court
¶8 Defense counsel’s obligations pertaining to Josytewa’s
representation in this appeal have ended. Defense counsel need do no more
than inform Josytewa of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
¶9 Josytewa has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. Upon the Court’s own motion, we also grant Josytewa
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
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