State v. Baker ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MALINDA ANNE BAKER,
Appellant.
No. 1 CA-CR 14-0770
FILED 9-3-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-455185-001
The Honorable J. 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 Tennie B. Martin
Counsel for Appellant
STATE v. BAKER
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined.
O R O Z C O, Judge:
¶1 Malinda Anne Baker appeals her probation revocation and
resulting sentence. This is an appeal under Anders v. California, 386 U.S. 738(1967) and State v. Leon, 104 Ariz. 297 (1969). Baker’s counsel has advised
the Court that, after searching the entire record, she has found no arguable
question of law. Baker was given the opportunity to file a supplemental
brief in propria persona, but she has not done so. See State v. Clark, 196 Ariz.
530, 537, ¶ 30 (App. 1999). Our obligation is to review “the entire record for
reversible error.” Id. Finding no reversible error, we affirm the revocation
of Baker’s probation and the sentence imposed.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2014, Baker plead guilty to one count of aggravated
assault, a class 3 felony. Pursuant to the plea agreement, Baker was placed
on supervised intensive probation for three years. Baker agreed to multiple
conditions of probation, including that she would not use illegal drugs and
would submit to regular drug testing (term number twelve).
¶3 Baker’s assigned probation officer, E.A., reviewed all of the
probation terms again with her in July 2014. E.A. testified that term number
twelve of the probation conditions was underlined and that he specifically
discussed with Baker the importance of complying with that term. E.A. also
testified that Baker acknowledged verbally and in writing that she
understood the terms of her probation.
¶4 One month later, E.A. was notified that Baker tested positive
for an illegal drug. E.A. and Baker discussed the test results and Baker
admitted to using methamphetamines. She then signed and dated an
admission of drug use.
¶5 The trial court held that Baker violated term number twelve
of her probation agreement by using illegal drugs. The trial court revoked
Baker’s probation and sentenced her to two and one half years’ in prison,
with 182 days’ presentence incarceration credit. Baker timely appealed, and
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STATE v. BAKER
Decision of the Court
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,
13-4031, and -4033.A.1 (West 2015).1
DISCUSSION
¶6 We view the facts in the light most favorable to sustaining the
trial court’s findings. State v. Maldonado, 164 Ariz. 471, 473 (App. 1990). The
trial court’s findings will be upheld “unless the finding is arbitrary or
unsupported by any theory of evidence.” State v. Thomas, 196 Ariz. 312, 313,
¶ 3 (App. 1999). A probation violation must be established by a
preponderance of the evidence. Ariz. R. Crim. P. 27.8.b(3). Here, the trial
court did not err by revoking Baker’s probation because sufficient evidence
supported that she used illegal drugs, and thus violated the terms of her
probation.
¶7 Term number twelve of Baker’s probation agreement
expressly required that she not use illegal drugs. Baker expressed to E.A.
that she understood the terms of that probation agreement. After testing
positive for drugs, Baker admitted to E.A. that she used
methamphetamines. An admission of a violation by a probationer to a
probation officer is admissible in a hearing to revoke probation regardless
of whether the probationer had been read her Miranda2 rights prior to the
admission. State v. Rivera, 116 Ariz. 449, 452 (1977). Thus, Baker’s
admission, without being read her Miranda rights, was properly admitted.
Moreover, E.A.’s testimony that Baker tested positive for drugs is
admissible, even as hearsay, because the trial court fairly deemed that the
drug test evidence was reliable. See Ariz. R. Crim. P. 27.8.b(3) (“The court
may receive any reliable evidence not legally privileged, including
hearsay.”); see also Rivera, 116 Ariz. at 451–52 (holding that drug test
evidence is reliable under Rule 27.8.b(3)).
¶8 Based on the aforementioned evidence, the trial court fairly
determined that Baker violated term number twelve of her probation. “If
the court finds that the person has violated any . . . condition of intensive
probation, it shall modify the conditions of intensive probation as
appropriate or shall revoke the period of intensive probation and impose a
term of imprisonment as authorized by law.” A.R.S. § 13-917.B. Thus, the
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
2 See Miranda v. Arizona, 348 U.S. 436 (1966).
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STATE v. BAKER
Decision of the Court
trial court acted within its discretion when it revoked Baker’s probation and
sentenced her to a mitigated term of two and one half years’ in prison.
CONCLUSION
¶9 We have read and considered counsel’s brief, and carefully
searched the entire appellate record for reversible error. See Leon, 104 Ariz.
at 300. We find none. The proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure, and we conclude sufficient
evidence supports the trial court’s findings. Baker was represented by
counsel at all critical stages of the proceedings. Baker and her counsel were
given an opportunity to speak at sentencing, and a legal sentence was
imposed.
¶10 Counsel’s obligations pertaining to Baker’s representation in
this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984).
Counsel need do nothing more than inform Baker of the status of this
appeal and any future options, unless Counsel’s review reveals an issue
appropriate for a petition for review to the Arizona Supreme Court. See id.
at 585. Baker has thirty days from the date of this decision to proceed, if
desired, with a pro per motion for reconsideration or petition for review.
¶11 We affirm the revocation of Baker’s probation and the
sentence imposed.
:ama
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