Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2005-117938-001 The Honorable J. Justin McGuire, Commissioner
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Criminal Appeals Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Delbert Wauneka, Appellant Florence.
PATRICIA K. NORRIS, Presiding Judge.
¶1 Delbert Wauneka timely appeals from his probation revocation and disposition sentence. After searching the record on appeal and finding no arguable question of law that was not frivolous, Wauneka's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Wauneka to file a supplemental brief in propria persona, and he has done so. We reject the arguments raised in Wauneka's supplemental briefing and, after reviewing the entire record, find no fundamental error. Therefore, we affirm Wauneka's probation revocation and disposition sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 On October 13, 2006, Wauneka pled guilty to sexual abuse, a class five felony, attempted sexual assault, a class three felony, and kidnapping, a class two felony (collectively "original convictions"). Pursuant to the plea agreement, the superior court sentenced Wauneka to four years in prison with 544 days of presentence incarceration credit on the kidnapping charge, and suspended imposition of sentence on the sexual abuse and attempted sexual assault charges (collectively "abuse and assault charges") and placed him on lifetime probation with special sex offender conditions on both charges.
¶3 After Wauneka was released from prison in August 2008, he began his terms of probation. In August 2009, the superior court suspended imposition of sentence on the abuse and assault charges and reinstated Wauneka to lifetime probation after he admitted to violating his probation. In July 2010, after Wauneka violated his probation again by pleading guilty in another matter, the court suspended imposition of sentence on the abuse and assault charges and reinstated Wauneka's lifetime probation.
¶4 In June 2012, a probation officer petitioned to revoke Wauneka's probation, alleging he had violated conditions of his probation, including Condition 4 (to reside at an approved residence and obtain approval before changing his residence), and Condition 25.3 (not to "go to or loiter near . . . places primarily used by children under the age of 18" without permission) by going near a shopping mall and an amusement park.
¶5 After Wauneka denied the alleged probation violations, the superior court held a witness violation hearing. At the hearing, Wauneka's probation officer testified he had reviewed the conditions of probation with Wauneka, and Wauneka had acknowledged he understood the conditions before signing. Wauneka's surveillance officer then testified Wauneka moved from the approved residence without permission, chose to become and remain homeless, and only contacted the surveillance officer after he had moved. The surveillance officer also testified the previous surveillance officer and Wauneka had signed behavior agreements and special sex offender conditions listing examples of "places primarily used by children under the age of 18" that he should not "go to or near, " such as malls, parks, playgrounds, and arcades. Another surveillance officer assigned to the Global Positioning System ("GPS") unit who had monitored Wauneka's location testified Wauneka had been "in the parking lot or the property" of the amusement park and near the mall.
¶6 Wauneka also testified at the hearing, and admitted he had slept at an unapproved location before contacting the probation officer, and had been in "the parking lot at the mall."
¶7 At the conclusion of the hearing, the superior court found the State had proven by a preponderance of the evidence Wauneka had violated Condition 4 and 25.3 of his probation. The superior court suspended imposition of sentence on the abuse and assault charges, reinstated Wauneka's lifetime probation, and imposed a ...