                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

              CHRISTOPHER ANTHONY BRAIN, Appellant.

                             No. 1 CA-CR 13-0729
                              FILED 06-17-2014


            Appeal from the Superior Court in Yavapai County
                        No. V1300CR820060752
               The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

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

Craig Williams Attorney at Law, PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                            STATE v. BRAIN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1            Appellant Christopher Anthony Brain (Defendant) appeals
from the trial court’s revocation of his probation and sentence of two five-
year consecutive terms of incarceration. Defendant’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a
search of the entire appellate record, he found no arguable question of law
that was not frivolous. Defendant was afforded the opportunity to file a
supplemental brief in propria persona, but has not done so.

¶2             Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.2d 89, 96
(App. 1999). 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), 13-4031, and -4033.A.1 (2010). Finding no reversible
error, we affirm the revocation of Defendant’s probation and sentence.

                 FACTS AND PROCEDURAL HISTORY

I.     Original Offense

¶3             Christopher Anthony Brain (Defendant) was charged with
six criminal counts related to his relationship with a minor who was
under the age of fifteen years.1 Defendant was twenty-years-old at the
time of the offense, and the victim (Victim) was fourteen-years-old.
Victim gave birth to a child as a result of this relationship, and a DNA test
confirmed that Defendant was the biological father. Defendant entered a
plea on three counts of attempted sexual conduct with a minor under the
age of fifteen, all class three felonies. The pleas for two of the counts were


1      Defendant was initially charged with three counts of sexual contact
with a minor under fifteen years of age and three counts of molestation of
a child under the age of 15 years.



                                      2
                            STATE v. BRAIN
                           Decision of the Court

entered pursuant to Alford.2 The court accepted Defendant’s plea as to all
three charges. Pursuant to the plea agreement and A.R.S. § 13-604.01
(2008),3 4 all three counts were classified as crimes against children, which
each carried a presumptive sentence of ten years’ imprisonment, with a
minimum sentence of five years’ and a maximum sentence of fifteen
years’ imprisonment.

¶4            Defendant was sentenced to a mitigated term of five years’
imprisonment as to Amended Count III, attempted sexual conduct with a
minor under the age of fifteen years, a non repetitive and dangerous crime
pursuant to A.R.S. § 13-604.01. Additionally, Defendant was sentenced to
ten years’ probation as to Amended Counts I and II, commencing upon
his release from the Arizona Department of Corrections (ADOC). The
trial court also ordered Defendant to pay various financial obligations,
fines, and fees as part of his sentence.

¶5            After serving his initial prison sentence, Defendant was
released and immediately began serving his ten-year probation term.
Defendant was responsible for complying with various uniform
conditions of supervised probation (uniform conditions) as well as various
special conditions of probation for sex offenders (special conditions) as
ordered by the trial court. Some of these conditions included: (1) to
“[a]bide by the Judgment and Orders of Restitution, Fines and Fees”
pursuant to uniform condition number 16 (Condition 16); (2) to
“[p]articipate and cooperate in any counseling or assistance as directed by
the [Adult Probation Department (APD)] pertaining to Substance Abuse,
Mental Health, and Sex Offender issues, pursuant to uniform condition
number 24 (Condition 24); (3) to abide by special sex offender conditions
of probation, pursuant to uniform condition number 25 (Condition 25);
and (4) to “[a]ctively participate in sex offender treatment and remain in


2      North Carolina v. Alford, 400 U.S. 25 (1970). “Alford stands for the
proposition that a trial court may, without violating the Constitution,
accept a plea of guilty from a defendant who maintains that he did not
commit a crime.” Duran v. Super. Ct. in and for Cnty. of Maricopa, 162 Ariz.
206, 207, 782 P.2d 324, 325 (App. 1989).

3     Renumbered as A.R.S. § 13-705 (2009).

4     We cite to the statute as enacted at the time of the offense because
material revisions to the statute have since occurred.



                                     3
                            STATE v. BRAIN
                           Decision of the Court

such treatment at the direction of the probation officer,” pursuant to
special condition number 6 (Special Condition 6).

II.   Violation of Probation

¶6            Defendant’s probation officer (P.O.) filed a petition to revoke
Defendant’s probation alleging that Defendant violated several conditions
of probation, including: (Condition 16) failing to abide by the judgment
and orders of restitution, fines and fees because Defendant was $4105 in
arrears with his court-ordered financial obligations; (Condition 24) failing
to participate and cooperate in any counseling or assistance as directed by
APD pertaining to substance abuse, mental health, and sex offender
counseling; and (Condition 25) failing to abide by the sex offender special
conditions of probation. The petition alleged that Defendant was “to
participate with sex offender treatment with [a counseling service] until he
successfully completed their program.” Defendant’s P.O. reported that
Defendant was discharged from treatment as “unsuccessful.”

¶7             At the violation hearing, the State presented testimony from
Defendant’s P.O. and a mental health counselor who worked with
Defendant. Both witnesses testified that Defendant was consistently non-
compliant with the terms of his probation. The mental health counselor
testified that “based on his behavior, [Defendant] did not appear to want
to comply with the program requirements to make change.” Accordingly,
the counseling program discharged Defendant as unsuccessful. By
contrast, Defendant testified explaining why he was non-compliant and
attempting to contradict some of the testimony given by the earlier
witnesses. The trial court remarked, “[w]hat we have is [Defendant]
performing abysmally on sex offender treatment . . . .” The trial court
admonished Defendant, “[y]ou were implemented to do something. You
didn’t do it. You didn’t do it for a number of months. And when you
attempted to do it, you were unsuccessful.”

¶8            At the conclusion of evidence, the trial court found that
Defendant had violated Conditions 24 and 25 and Special Condition 6 of
his probation because of Defendant’s failure to comply with his
counseling and treatment requirements. The trial court found that it did
not receive sufficient evidence to support a violation of Condition 16, the
requirement that Defendant abide by all orders of restitution, fines, and
fees. The trial court granted the State’s petition to revoke Defendant’s
probation and set the case for disposition.




                                     4
                            STATE v. BRAIN
                           Decision of the Court

¶9            The trial court conducted a disposition hearing and
sentenced Defendant to five years’ “flat imprisonment” for two counts of
attempted sexual conduct with a minor under fifteen years of age. The
trial court ordered that the sentences imposed run consecutive, and
granted Defendant sixty days credit to the first term, to which neither
party objected.

                              DISCUSSION

¶10          We view the evidence in the light most favorable to
supporting the trial court’s finding of a probation violation. See State v.
Vaughn, 217 Ariz. 518, 519 n.2, ¶ 3, 176 P.3d 716, 717 n.2 (App. 2008). “We
will uphold a trial court’s finding that a probationer has violated
probation unless the finding is arbitrary or unsupported by any theory of
evidence.” State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 115 (App.
1999).

I.    Sufficiency of the Evidence

¶11           “The finder-of-fact, not the appellate court, weighs the
evidence and determines the credibility of witnesses.” State v. Cid, 181
Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). We will not disturb the fact
finder’s “decision if there is substantial evidence to support its verdict.”
Id.

¶12           When deciding whether to revoke probation, the trial court
must follow the procedures outlined in the Arizona Rules of Criminal
Procedure. See A.R.S. § 13-901.C (2010); Ariz. R. Crim. P. 27; see also
Vaughn, 217 Ariz. at 521, ¶ 17, 176 P.3d at 719. The trial court must hold a
violation hearing “to determine whether a probationer has in fact violated
a probation condition, and a probation violation finding made at the
violation hearing is a prerequisite to probation revocation at the
disposition hearing.” Id. at at 522, ¶ 18, 176 P.3d at 720. A violation of
probation must be established by a preponderance of the evidence. State
v. Hadley, 114 Ariz. 86, 88, 559 P.2d 206, 208 (App. 1977).

¶13            In this case, the State presented sufficient evidence to
support the trial court’s finding that Defendant violated the conditions of
his probation. Specifically, the State presented evidence that Defendant
failed to fully participate in treatments assigned to him by his P.O. under
the uniform conditions, failed to abide by the special conditions of a sex
offender by failing to comply with the directions of the treatment
provider, failed to comply with all of the requirements of each phase of
treatment, and was terminated from treatment as “unsuccessful.” This


                                     5
                            STATE v. BRAIN
                           Decision of the Court

evidence supports the trial court’s finding that Defendant willfully
violated Conditions 24 and 25 and Special Condition 16.

II.   Presentence Incarceration Credit

¶14           As part of our responsibility to review the record in its
entirety, see Clark, 196 Ariz. at 541, ¶ 49, 2 P.2d at 100, we evaluate
whether Defendant received the proper amount of credit for pre-sentence
incarceration. The trial court awarded Defendant sixty days of pre-
sentence incarceration credit in this case and neither party objected. This
credit has not been challenged on appeal either. However, from the
record, it does not appear that Defendant actually served any time prior to
his disposition. Because the record before us is unclear as to how many
days would be correct for pre-sentence incarceration credit and neither
party has raised any objections, we affirm the trial court’s award of sixty
days pre-sentence incarceration credit. Therefore, should counsel for
Defendant find the number of days of pre-sentence incarceration was less
than he actually served; he may file a motion to reconsider with this court.
See State v. Ritch, 160 Ariz. 495, 498-99, 774 P.2d 234, 237-38 (App. 1989)
(holding that a trial court’s failure to award the correct amount of credit
for presentence incarceration towards a defendant’s sentence constitutes
fundamental error pursuant to A.R.S. § 13-712.B, entitling a defendant to
“all time actually spent in custody pursuant to an offense until the
prisoner is sentenced to imprisonment” and correcting such an error.); see
also State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992)
(modifying sentence to grant defendant correct credit for pre-sentence
incarceration).

                             CONCLUSION

¶15            We have read and considered counsel’s brief. We have
carefully searched the entire record for reversible error and have found
none. See Leon, 104 Ariz. at 300, 451 P.2d at 882. The record indicates
Defendant was represented by counsel at all critical stages of the
proceedings, that the trial court afforded Defendant all of his rights under
the Constitution, Arizona statutes, and the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. See Clark, 196
Ariz. at 541, ¶ 50, 2 P.3d at 100. Defendant was given an opportunity to
speak at his disposition hearing, and the sentences imposed were within
statutory limits. Based on our review of the record, we find sufficient
evidence supports the trial court’s revocation of Defendant’s probation,
and the trial court imposed a lawful sentence.




                                     6
                            STATE v. BRAIN
                           Decision of the Court

¶16           Counsel’s      obligations    pertaining     to    Defendant’s
representation in this appeal have ended, except for, as noted, regarding
pre-sentence incarceration. Counsel need do no more than inform
Defendant of the status of the appeal and his future options, unless
counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). If he desires, Defendant has
thirty days from the date of this decision to proceed with a pro per motion
for reconsideration or petition for review.

¶17          Accordingly, we affirm the revocation of Defendant’s
probation and the sentences imposed.




                                :gsh




                                     7
