State v. Spinelli

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.
JOHN F. SPINELLI, Appellant.
No. 1 CA-CR 13-0630
FILED 04/24/2014
Appeal from the Superior Court in Maricopa County
No. CR2009-148745-001
The Honorable 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 Spencer D. Heffel
Counsel for Appellant
STATE v. SPINELLI
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.
J O N E S, Judge:
¶1 Defendant John Spinelli timely appeals from the trial court’s
March 21, 2013 orders reinstating his probation. After searching the
record on appeal and finding no arguable question of law that was not
frivolous, Spinelli’s defense counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), asking this court to search the record for fundamental error.
Spinelli has been afforded an opportunity to file a supplemental brief in
propria persona, and has not elected to do so. After reviewing the record,
we find no error and therefore affirm the reinstatement of his probation.
Background 1
¶2 Stemming from an incident in July 2009, Spinelli pleaded
guilty to aggravated assault, a class three felony. In October 2009, the trial
court suspended the imposition of sentence and placed Spinelli on
supervised probation for a term of five years. In late 2011, a petition to
revoke probation was filed against Spinelli. At a violation hearing in June
2012, Spinelli admitted violating the conditions of his probation, and the
trial court reinstated Spinelli’s probation. One condition of his reinstated
probation required Spinelli to self-surrender on December 1, 2012, and
serve two months in jail.
¶3 When Spinelli failed to self-surrender on the specified date,
the probation department filed a second petition to revoke Spinelli’s
probation, alleging he violated that condition of his probation as well as
several other conditions. A witness violation hearing was held, whereby
1We view the evidence in the light most favorable to upholding the trial
court’s findings that Spinelli violated the conditions of his probation. See
State v. Vaughn, 217 Ariz. 518, 519 n.2, ¶ 2, 176 P.3d 716, 717 n.2 (App.
2008).
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STATE v. SPINELLI
Decision of the Court
the State entered into evidence a signed “Review and Acknowledge
Directive” that instructed Spinelli to enroll in domestic violence
counseling. Spinelli enrolled as directed; however, Spinelli’s probation
officer testified that Spinelli did not complete the counseling, as the
treatment center discharged him due to two unexcused absences and
behavioral issues in group sessions (hostile and defensive participation).
The probation officer also testified Spinelli had failed to self-surrender to
the county jail on December 1, 2012, despite being (1) directed to do so in
person, and (2) personally served with an order of confinement at his
residence on November 28. Finally, the probation officer testified that a
review of the court’s financial records illustrated Spinelli had failed to
make court ordered payments.
¶4 Spinelli also testified at the hearing. While providing
various reasons for why he had not complied with his probation terms,
Spinelli did not deny: failing to self-surrender on the required date, failing
to make court ordered payments, or being discharged from the counseling
center. He also testified that he understood the terms of his probation
completely.
¶5 Following the conclusion of the hearing, the trial court found
by a preponderance of the evidence Spinelli had violated four conditions
of his probation: actively participate and cooperate in any program of
counseling or assistance . . . ; 2 make court imposed fees and payments;
and self-surrender to the county jail. Thereafter, the trial court reinstated
Spinelli’s probation, including the condition he serve two months in jail
with credit for zero days served.
Discussion
¶6 After a diligent search of the entire record, Spinelli’s counsel
has advised this Court that he has found no arguable question of law. We
have fully reviewed the record for reversible error, and we find none. See
Leon, 104 Ariz. at 300, 300, 451 P.2d at 881.
¶7 A probation violation “must be established by a
preponderance of the evidence.” Ariz. R. Crim. P. 27.8(b)(3). We uphold
a trial court’s finding of a probation violation “unless it is arbitrary or
unsupported by any theory of evidence.” State v. Moore, 125 Ariz. 305,
2Two separate conditions of Spinelli’s probation related to the undergoing
and completion of domestic violence counseling.
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STATE v. SPINELLI
Decision of the Court
306, 609 P.2d 575, 576 (1980). The witness violation hearing was
conducted in compliance with Spinelli’s constitutional rights and Arizona
Rule of Criminal Procedure 27. The evidence presented at the hearing
supported the trial court’s findings that Spinelli violated the four
conditions of his probation. Therefore, we affirm the reinstatement of
Spinelli’s probation.
¶8 After the filing of this decision, defense counsel’s obligations
pertaining to Spinelli’s representation in this appeal have ended.
Spinelli’s counsel need do no more than inform Spinelli of this appeal’s
outcome and his future options, unless, upon review, counsel finds 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).
¶9 Spinelli has 30 days from the date of this decision to proceed
with an in propria persona petition for review, if he so wishes. See Ariz. R.
Crim. P. 31.19(a). Upon our own motion, we also grant Spinelli thirty
days from the date of this decision to file an in propria persona motion for
reconsideration.
Conclusion
¶10 We affirm the reinstatement of Spinelli’s probation.
:gsh
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