                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                     DALE ALLEN WRIGHT, Appellant.

                             No. 1 CA-CR 14-0868
                               FILED 12-24-2015


           Appeal from the Superior Court in Maricopa County
                          No. CR 1992-003917
            The Honorable Justin Beresky, Judge Pro Tempore

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                           STATE v. WRIGHT
                           Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.


K E S S L E R, Judge:

¶1            Appellant Dale Allen Wright was found to have violated his
probation, and received a sentence of reinstatement of lifetime probation
and three months in jail. Counsel for Wright filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530
(App. 1999). Wright was given the opportunity to, but did not, file a
supplemental pro per brief. Finding no arguable issues to raise, counsel
requested this Court search the record for fundamental error. For the
reasons that follow, we affirm the findings of Wright’s violations of
probation and his sentence. However, because Wright was not awarded 98
days’ presentence incarceration credit, the court shall add this credit to any
future incarceration of Wright for future probation violations or sentences
in new criminal proceedings.

               FACTUAL AND PROCEDURAL HISTORY

¶2             On October 5, 1992, Wright pled guilty to two counts of
solicitation to commit molestation of a child, class 3 felonies and dangerous
crimes against children in the second degree, for which he was sentenced
to lifetime probation for both counts. In May 2014, the State filed a petition
to revoke Wright’s probation for violation of five terms of his probation: (1)
Wright did not receive prior approval before changing his residence; (2)
Wright was delinquent in paying his probation fees; (3) Wright was
discharged from sex offender specific treatment for failure to attend
treatment on April 23, 2014 and April 30, 2014; (4) Wright admitted in
writing that he possessed sexually stimulating items, patronized adults
only establishments where sexually stimulating items are available without
permission from the probation department, and Wright participated in
calling sexually based adult phone lines; and (5) Wright admitted in writing
that he accessed the internet to view pornography. At the revocation
arraignment Wright denied the probation violation allegations, and a
violation hearing was set for December 3, 2014.




                                      2
                           STATE v. WRIGHT
                           Decision of the Court

¶3            Wright filed a motion to dismiss the allegation and finding of
his having committed a dangerous crime against children stemming from
the 1992 plea agreement. He argued in part that the crimes he pled guilty
to in 1992 did not allow for life time probation. He also asked the court to
allow him to file a delayed petition for post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32. At the violation hearing, the trial
court denied Wright’s motion to dismiss, without addressing the merits,
stating the proper remedy would be for Wright to file a motion “to
withdraw from the plea agreement for manifest injustice” in accordance
with Arizona Rule of Criminal Procedure 17.5.

¶4            At the violation hearing, the State presented testimony from
Wright’s probation officer, A.R. As discussed infra ¶¶ 10-13, A.R. testified
in detail about the alleged probation violations. The trial court found that
the State proved by a preponderance of the evidence that Wright violated
the terms of his probation.

¶5            The trial court then proceeded to disposition, upon Wright’s
waiver under Arizona Rule of Criminal Procedure 27.8(d). See Ariz. R.
Crim. P. 27.8(c) (requiring disposition hearing be postponed for at least
seven days after finding of violation). The State and defense counsel made
recommendations, while Wright elected not to make a statement. The trial
court reinstated Wright’s lifetime probation and sentenced Wright to serve
three months in jail beginning December 3, 2014, not to be released until
March 1, 2015.

¶6            Wright filed a timely notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), and 13-
4033(A)(3) (2010).

                        STANDARD OF REVIEW

¶7            In an Anders appeal, this Court must review the entire record
for fundamental error. State v. Richardson, 175 Ariz. 336, 339 (App. 1993).
Fundamental error is “error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.”
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v. Hunter,
142 Ariz. 88, 90 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20.




                                     3
                            STATE v. WRIGHT
                            Decision of the Court

                               DISCUSSION

¶8            After careful review of the record, we find no meritorious
grounds for reversal of Wright’s probation violation and sentence. The
record reflects Wright had a fair probation violation hearing and all
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure.1 Wright was present and represented by counsel at all
critical stages of the hearing, was given an opportunity to speak at
sentencing, and the jail sentence imposed was within the allowable range
for Wright’s violations.

I.     Sufficiency of the Evidence

¶9            In reviewing the sufficiency of evidence at the hearing, “[w]e
construe the evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v. Greene,
192 Ariz. 431, 436, ¶ 12 (1998). “Reversible error based on insufficiency of
the evidence occurs only where there is a complete absence of probative
facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

¶10           At the violation hearing, A.R. testified that she was Wright’s
probation supervisor for his underlying offense in CR 1992-009317(A) and
she identified Wright in court. A.R. testified that she reviewed Wright’s
probation conditions with him, including the sex offender terms, in 2011
when she took over managing his case.

¶11           A.R. testified that on February 25, 2013, Wright voluntarily
came to her office to disclose that he had bought sexually explicit videos
and magazines at an adult bookstore, accessed the internet to view
pornography, and engaged in calling phone-sex chat lines since January
2012, most recently the Wednesday before. A.R. explained that these
actions were prohibited by Wright’s conditions of probation and, as a result,
A.R. documented the disclosures in a behavioral report that Wright signed.




1 We find no error in the court denying Wright’s motion to modify his
probation or for permission to file an untimely Rule 32 petition. Not only
did Wright not argue the Rule 32 issue in the motion, but the court granted
him the option to move to withdraw from the plea agreement pursuant to
Arizona Rule of Criminal Procedure 17.5. In so holding, we render no
opinion on the merits of Wright’s challenge to the length of his probation.


                                      4
                           STATE v. WRIGHT
                           Decision of the Court

¶12          A.R. also testified that a condition of Wright’s probation was
to attend sex offender treatment, however Wright had been discharged
from treatment for failure to attend a therapy session on April 23, 2014.

¶13             A.R. testified that another condition of Wright’s probation
was that the probation department must know where, and approve of,
Wright’s residence. A.R. stated that as of April 2014 Wright was approved
to be living at Sky Harbor Inn, in Maricopa County. However, A.R. testified
that Wright stopped reporting to his probation visits and abandoned his
apartment as of April 21, 2014. A.R. testified that she tried contacting
Wright and his sister telephonically, and she and her partner made field
visits to Wright’s residence, but were unsuccessful in reaching him. A.R.
did not know where Wright was residing from April 21, 2014 through
August 27, 2014, when Wright was arrested for the instant probation
violation.

¶14          In comparing the evidence in the record to the requirements
of Wright’s probation terms and conditions, we find there was sufficient
evidence to support the trial court’s findings of Wright’s violations of
probation.

II.   Presentence Incarceration Credit

¶15           Presentence incarceration credit is given for time spent in
custody beginning on the day of booking and ending on the day before
sentencing. See State v. Carnegie, 174 Ariz. 452, 454 (App. 1993); State v.
Hamilton, 153 Ariz. 244, 246 (App. 1987). A defendant is entitled to such
credit for time spent in custody for a probation violation petition. State v.
Brooks, 161 Ariz. 177, 181 (App. 1989). Wright was arrested and booked into
a detention facility on a probation violation warrant on August 27, 2014.
Wright spent 98 days in custody, prior to his probation violation hearing
and disposition held on December 3, 2014. The trial court did not award
Wright any presentence incarceration credit when it ruled on the
disposition of reinstatement of lifetime probation and three months in jail.
The failure to grant Wright presentence incarceration credit was error.
Because Wright has already served three months in jail pursuant to the
disposition in this proceeding, the court shall add 98 days of credit to any
future incarceration of Wright for future probation violations or sentences
in new criminal proceedings.

                              CONCLUSION

¶16          After careful review of the record, we find no meritorious
grounds for reversal of Wright’s violation of probation or modification of


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                           STATE v. WRIGHT
                           Decision of the Court

the sentence imposed. The evidence supports the finding, the sentence
imposed was within the sentencing limits, and Wright was represented at
all stages of the proceedings. Accordingly, we affirm the finding of
Wright’s violation of probation and sentence.

¶17            Upon the filing of this decision, counsel shall inform Wright
of the status of the appeal and his options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Wright shall have thirty days from
the date of this decision to proceed, if he so desires, with a pro per motion
for reconsideration or petition for review.




                                :ama




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