Court of Appeals of Arizona, First Division, Department S
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County Cause No. S8015CR98000260 The Honorable Steven F. Conn, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee
Jill L. Evans, Mohave County Public Defender Kingman Attorney for Appellant
LAWRENCE F. WINTHROP, Presiding Judge
¶1 Michael Eugene McManus ("Appellant") appeals the trial court's determination that he violated his probation and the resulting sentence. Appellant contends the State never offered any evidence to prove that his treatment staff deemed adult pornography inappropriate for him to possess and that the probation department had warned him he was not allowed to possess visual depictions of such pornography. The State confesses error, and we agree that the State failed to offer the aforementioned evidence at Appellant's probation violation hearing. Consequently, we reverse the court's finding that Appellant committed Violation #2 of special condition 12 of his probation as discussed below, and we vacate Appellant's sentence. Because the record is unclear, however, whether the State's failure to offer the aforementioned evidence also requires us to reverse the court's finding that Appellant committed alleged Violation #2 of special condition 14 of his probation as discussed below, we remand with directions for the trial court to clarify its previous ruling as to that violation, hold a new disposition hearing if necessary, and conduct any other proceedings consistent with this decision.
¶2 In February 2003, Appellant pled guilty pursuant to Alford to the offense of attempted sexual exploitation of a minor, a class three felony. The trial court suspended sentencing and ordered Appellant placed on ten years' probation, which included both uniform and special sex offender conditions of probation, including the following terms:
12. Do not possess, or in any way attempt to obtain by telephone or any other instrument, any sexually stimulating or sexually oriented material in any form as deemed inappropriate by treatment staff, or patronize any adults-only establishment where such material is available.
14. Do not possess, use, or have personal access to any computer or similar equipment that has Internet capability without prior written permission of your probation officer.
¶3 With the exception of a probation violation admitted by Appellant in 2007, Appellant appeared to do well on probation. On July 26, 2011, however, the State through the probation department filed a petition ("the July petition") to revoke Appellant's probation, alleging that Appellant had committed three violations of special condition 14 of his probation. Upon the State's motion, the trial court later dismissed with prejudice alleged Violation #3 of special condition 14.
¶4 On August 15, 2011, the State filed a supplemental petition ("the August petition") to revoke Appellant's probation, alleging that Appellant had committed two violations of special condition 12 of his probation. On December 14, 2011, the State filed a third petition ("the December petition") to revoke Appellant's probation, alleging that Appellant had committed another violation of special condition 14 of his probation.
¶5 At the June 8, 2012 contested probation violation hearing, the court granted the State's motion to dismiss with prejudice Violation #1 of special condition 12 as alleged in the August petition. The court also found that the State had not proved that Appellant had committed Violation #1 of special condition 14 as alleged in the July petition or violated special condition 14 as alleged in the December petition.
¶6 The court did find, however, that Appellant had committed Violation #2 of special condition 14 as alleged in the July petition and Violation #2 of special condition 12 as alleged in the August petition. The court also noted that it considered Violation #2 of special condition 14 and Violation #2 of special condition 12 to be "both the identical single violation based upon what happened on July 26, 2011."
¶7 On June 28, 2012, the trial court sentenced Appellant to a mitigated term of six years' imprisonment in the Arizona Department of Corrections. We have jurisdiction over Appellant's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") ...