State v. Berthold ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ROBERT LOGAN BERTHOLD, Appellant.
No. 1 CA-CR 17-0820, 1 CA-CR 17-0821, 1 CA-CR 18-0001
(Consolidated)
FILED 8-28-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-005491-001, CR2016-135159-001, CR2016-103266-001
(Consolidated)
The Honorable Richard L. Nothwehr, 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. BERTHOLD
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
S W A N N, Judge:
¶1 Robert Logan Berthold appeals, under Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from the revocation
of his probation and the resulting sentences. Neither Berthold nor his
counsel identify any issues for appeal. We have reviewed the record for
fundamental error. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S.
738; State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We find none.
¶2 Berthold pled guilty to two class six felonies (criminal
possession of burglary tools and possession of drug paraphernalia) and one
class three felony (second degree burglary). The court suspended the
imposition of sentence and placed him on three years of supervised
probation. The conditions of probation required, among other things, that
Berthold live in a residence approved by the Adult Probation Department
(“APD”), not change residence without approval from APD, actively
participate in drug treatment programs, and not possess or use illegal
drugs. In September 2017, Berthold’s probation officer filed a petition to
revoke his probation, alleging that Berthold had violated numerous
conditions of his probation, including drug use and changing his approved
residence. The matter proceeded to a contested revocation hearing in
December 2017.
¶3 At the revocation hearing, the state presented evidence of the
following facts. In July and early August 2017, Berthold and his probation
officer discussed the probation conditions on drug use, drug treatment, and
his living situation. In mid-August, Berthold admitted to his probation
officer that he had used heroin twice earlier that month. During that same
period, Berthold failed to move into his assigned residence, changed
residence without APD’s permission, and missed a scheduled meeting with
his probation officer. Then, in September, the coordinator at Berthold’s
residential treatment program observed Berthold to be “under the influence
of heroin.” The coordinator discharged Berthold from the program the next
day due to “non[-]compliance.”
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STATE v. BERTHOLD
Decision of the Court
¶4 The court found that Berthold had violated four different
probation conditions, and recited evidence to support each finding. See
Ariz. R. Crim. P. (“Rule”) 27.8(b)(5). The court sentenced him to a mitigated
2.5-year prison term for the class three felony, and to presumptive 1-year
prison terms for the two class six felonies, all to be served concurrent with
each other.
¶5 We discern no fundamental error. The state presented
sufficient evidence to prove by a preponderance of the evidence that
Berthold had committed at least one probation violation. See id. Berthold
was permitted to speak at the hearing and the court stated on the record the
materials it considered and the factors it found in imposing sentence. The
court imposed legal sentences, see A.R.S. §§ 13-702(D), -1505(C), -1507(B),
-3415(A), and properly credited Berthold for his presentence incarceration,
see A.R.S. §§ 13-712(B), -903(F).
¶6 For the foregoing reasons, we affirm the revocation of
Berthold’s probation and the resulting sentences. Defense counsel’s
obligations pertaining to this appeal have come to an end. See State v.
Shattuck, 140 Ariz. 582, 584–85 (1984). Unless, upon review, counsel
discovers an issue appropriate for petition for review to the Arizona
Supreme Court, counsel must only inform Berthold of the status of this
appeal and his future options. Id. Berthold has 30 days from the date of
this decision to file a petition for review in propria persona. See Rule
31.21(b)(2)(A). Upon the court’s own motion, Berthold has 30 days from
the date of this decision in which to file a motion for reconsideration. See
Rule 31.20(c).
AMY M. WOOD • Clerk of the Court
FILED: AA
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