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State v. Gonzalez

Court of Appeals of Arizona, First Division, Department C

July 11, 2013

STATE OF ARIZONA, Appellee,
v.
HENRY ULLESSIES GONZALEZ, Appellant

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Navajo County Cause No. S0900CR20070472 The Honorable John N. Lamb, Judge

Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel Criminal Appeals Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee.

The Wood Law Office Show Low by Ronald D. Wood Attorneys for Appellant.

MEMORANDUM DECISION

RANDALL M. HOWE, Judge.

¶1 Henry Ullessies Gonzalez ("Gonzalez") appeals the revocation of his probation and the resulting prison sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 A grand jury indicted Gonzalez in 2007 for transporting 240 pounds of marijuana for sale, a class two felony. Gonzalez pled guilty to attempted transportation of marijuana for sale, a class three felony. In May 2008, the trial court suspended sentence, placed Gonzalez on probation for five years, and ordered him to pay a $50, 000 fine. In June 2008, at Gonzalez's request, the probation department transferred Gonzalez's supervision to Florida.

¶3 In August 2008, Gonzalez's probation officer petitioned to revoke Gonzalez's probation, alleging that Gonzalez was not residing at the approved address, had failed to make payments on his fine, had failed to perform any of the required 200 hours of community service, and had failed to obtain the required substance abuse evaluation. The trial court issued a warrant for his arrest.

¶4 In January 2010, Florida law enforcement arrested Gonzalez on the warrant, but released him after the Navajo County Attorney declined to extradite him from Florida. A second arrest in August 2010 in Florida on the warrant again resulted in his release. Gonzalez failed to contact the Navajo County Adult Probation Department at any time after he was released on these two occasions to ask about or resolve the pending petition to revoke.

¶5 In March 2012, Florida law enforcement again arrested Gonzalez, and this time he was extradited and transported to Arizona for arraignment on the probation revocation petition. Gonzalez moved to dismiss the petition to revoke, arguing that the more-than-two-year delay in bringing him before the Navajo County Superior Court violated his due process rights. The State responded by outlining the sequence of events——including its failure to extradite Gonzalez twice in 2010 following his arrests on the warrant, and his resultant release from custody—— and argued that because of budgetary constraints and Gonzalez's failure to contact probation officials or come to Arizona to face the petition, it had only recently gained custody of Gonzalez. The State also argued that Gonzalez had not articulated any prejudice from the delay. The court found the delay was minimal after the State of Arizona gained custody of Gonzalez, the delay in gaining custody was reasonable, and Gonzalez did not suffer any prejudice from the delay. After the court denied Gonzalez's motion, defense counsel filed a Notice of Additional Record in which he avowed that Gonzalez would have testified that Arizona had failed to extradite him on the petition twice, although each time he had waived extradition, and that he was prejudiced by the delay because, "if the state had proceeded, it would have learned that Mr. Gonzalez was never implemented on to interstate compact and the problem would have resolved."

¶6 The State then alleged in a supplemental petition to revoke that Gonzalez failed to comply with the term that he report monthly in writing to the Navajo County Adult Probation Department. At the revocation hearing, Gonzalez testified that he did not make any payments on the fine because "at that time" he did not have a job, and "didn't know exactly where to send my money to." In the predisposition report, however, the probation officer reported that Gonzalez said that he lived with his parents, and, in the sixteen months before his extradition, he had earned a monthly income of $1, 400 to $1, 700. Asked why he failed to pay his fines and fees, Gonzalez told the officer, "I just didn't make payments."

¶7 At the disposition hearing, defense counsel argued that the court could not sentence Gonzalez to prison for his failure to make payments on the fine, because the court had not specifically found that Gonzalez had the funds and deliberately failed to use them to make the payments. The court ruled without expressly addressing whether it found that the failure to make payments was deliberate. In determining whether probation was still an appropriate disposition, the court stated that it saw "a pattern of trying to avoid responsibility . . . I don't think [Gonzalez is] amenable to probation based upon his actions, and I understand probation didn't do anything, but I think it was up to him to get in touch with probation, and he doesn't make that strong of an effort." The court thus sentenced Gonzalez to a mitigated term of two and one-half years in prison.

¶8 Gonzalez timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2), 13-4031, and ...


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