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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            JAMIE JOHN MICHAEL DE GROOTE, Appellant.

                             No. 1 CA-CR 17-0587
                               FILED 9-12-2019


            Appeal from the Superior Court in Navajo County
                         No. S0900CR20080784
                The Honorable Robert J. Higgins, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Suzuki Law Offices LLC, Phoenix
By Seth M. Apfel
Counsel for Appellant
                          STATE v. DE GROOTE
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.


P E R K I N S, Judge:

¶1           Jamie John Michael De Groote appeals the superior court’s
revocation of his probation and resulting prison sentence. He also
challenges his 2009 plea agreement and subsequent imposition of
probation. For the following reasons, we affirm the probation revocation
and sentence. We lack jurisdiction to consider the propriety of the plea
agreement and probation terms.

               FACTUAL AND PROCEDURAL HISTORY

¶2             De Groote pled guilty in 2009 to one count of conspiracy to
transport a narcotic drug for sale, a class 2 felony. The superior court
suspended imposition of sentence on February 10, 2015, and placed De
Groote on five years of supervised probation. On July 26, 2016, the county
probation department filed a petition to revoke De Groote’s probation. In
it, the county alleged that De Groote’s whereabouts were unknown, which
violated four of his probation conditions. De Groote contested the petition.

¶3            The superior court conducted a revocation hearing on May
16, 2017, during which De Groote and a representative of the probation
department testified. The court concluded the State had proven at least one
violation and, based in part on De Groote’s prior convictions, imposed an
aggravated 7.5-year prison term with 447 days of presentence incarceration
credit. De Groote timely appeals.

                              DISCUSSION

¶4             De Groote raises the following six issues: (1) whether he was
competent to waive counsel during the 2015 proceeding in which the court
imposed probation; (2) whether his mental state when he accepted the
State’s plea offer negated notice of his probationary conditions; (3) whether
the superior court erred in failing to advise De Groote pursuant to State v.
Donald, 198 Ariz. 406 (App. 2000), before he accepted the plea offer; (4)
whether the court violated De Groote’s right to counsel by granting his
request to represent himself at the revocation hearing; (5) whether the court


                                     2
                           STATE v. DE GROOTE
                            Decision of the Court

erred in imposing an aggravated prison term; and (6) whether the court
miscalculated De Groote’s additional presentence incarceration credit.

¶5            We lack jurisdiction to consider a defendant’s direct appeal
from a judgment or sentence entered pursuant to a plea agreement. A.R.S §
13-4033(B); State v. Regenold, 226 Ariz. 378, 378, ¶ 1 (2011); State v. Ponsart,
224 Ariz. 518, 521, ¶ 9 (App. 2010). Similarly, a defendant may not directly
appeal from a revocation of probation when he or she admits to violating a
probation condition. A.R.S. § 13-4033(B). We have jurisdiction to consider
an appeal from a contested probation revocation and the resulting sentence.
Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4033(A)(3)–(4); Regenold,
226 Ariz. at 378, ¶ 1; Ponsart, 224 Ariz. at 519–22, ¶ 2–12.

¶6            Issues (1), (2), and (3) concern the circumstances of De
Groote’s plea agreement and the 2015 imposition of probation. We
therefore lack jurisdiction to consider those issues. Instead, De Groote can
pursue any possible relief of those matters through post-conviction
proceedings under Arizona Rule of Criminal Procedure 32. See Ponsart, 224
Ariz. at 521, ¶ 9. Accordingly, we turn to De Groote’s challenges to the
superior court’s revocation of probation and imposition of sentence.

I.     Waiver of Counsel in the Revocation Proceeding

¶7             For a criminal defendant to waive his right to counsel, the
defendant must be competent and his request must be unequivocal,
knowing, voluntary, and timely. State v. McLemore, 230 Ariz. 571, 576–77,
¶ 17 (App. 2012) (competent); State v. Henry, 189 Ariz. 542, 548 (1997)
(citation omitted) (unequivocal); State v. Gunches, 240 Ariz. 198, 202, ¶ 8
(2016) (citation omitted) (knowing and voluntary); State v. Weaver, 244 Ariz.
101, 104, ¶ 9 (App. 2018) (timely). “[C]ompetence to waive the
constitutional right to counsel is the primary restriction on the free-exercise
of self-representation.” McLemore, 230 Ariz. at 576, ¶ 17. When a
defendant’s request to represent himself is unequivocal and timely, the
court has an independent “protective duty to ascertain whether his waiver
of counsel was intelligent, knowing and voluntary.” Id. at 579, ¶ 25. “A
waiver finding is based substantially on the trial judge’s observation of the
defendant’s appearance and actions,” and thus we review it for an abuse of
discretion. State v. Dann, 220 Ariz. 351, 358–59, ¶¶ 10–16 (2009).

¶8             De Groote correctly notes that he did not execute a written
waiver of counsel in the revocation proceedings. See Ariz. R. Crim. P. 6.1(c)
(“A defendant may waive the right to counsel if the waiver is in writing and
if the court finds that the defendant’s waiver is knowing, intelligent, and



                                       3
                           STATE v. DE GROOTE
                            Decision of the Court

voluntary.”). A court’s failure to have a defendant sign a waiver “is not
necessarily reversible error,” whereas erroneous failure to recognize a
defendant’s right to self-represent “violates a defendant’s constitutional
rights and is reversible and structural error.” McLemore, 230 Ariz. at 578–79,
¶ 23. Accordingly, we look to see whether the record as a whole supports a
finding of constitutional waiver. Id. at ¶ 23 n.12.

¶9           Viewing the record as a whole, the trial court did not err in
finding De Groote competent to waive his right to counsel. At the probation
revocation hearing, De Groote competently represented himself and
displayed knowledge of Arizona criminal and evidence law; he also ably
cross-examined a witness. Furthermore, De Groote presented a convincing,
though factually unsupported, argument that a statute prevented the court
from placing him on community supervision and probation concurrently.

¶10           At his initial appearance on the petition to revoke, De Groote
unequivocally asserted, “I just want to do propria persona, attorney in fact,
for the matter.” De Groote also affirmed he had represented himself
previously in this case “sui generis, in propria persona.” The language De
Groote employed to assert his desire to represent himself, like the language
in his numerous filings in the superior court and this Court, does not
indicate incompetency. Rather, De Groote uses “Organized Pseudolegal
Commercial Arguments” (“OPCA”) as an unsuccessful strategy to
challenge the authority and jurisdiction of the courts. See Donald J.
Netolitzky, Organized Pseudolegal Commercial Arguments as Magic and
Ceremony, 55 Alberta L. Rev. 1045 (2018) (discussing tactics used by OPCA
litigants    to     “evade      legal     consequences”),      available   at
https://www.albertalawreview.com/index.php/ALR/article/view/248.

¶11           Granted, a psychologist who evaluated DeGroote in
November 2014 under Rule 25.6 concluded he was so psychotically
impaired and delusional that he would not be able to work with appointed
counsel. This conclusion seems to have been based on De Groote’s OPCA
theories, with which the psychologist was not familiar. In this regard, the
psychologist noted that De Groote sometimes “seems to be isolated in a
belief system that is very separate from [the psychologist’s] sense of reality,
[but that] there are also times where the client seems very well grounded
and understanding of what is going on.” Given the psychologist’s
unfamiliarity with De Groote’s pseudolegal theories, it was within the trial
court’s discretion to accept De Groote’s waiver. See Dann, 220 Ariz. at 358,
¶ 10.




                                      4
                           STATE v. DE GROOTE
                            Decision of the Court

¶12            Moreover, in April 2015, the superior court in an unrelated
criminal matter found that De Groote was competent to understand the
proceedings and assist counsel. In making that finding, the court relied on
two expert reports filed in connection with a formal competency evaluation.
See Ariz. R. Evid. 201(b)(2); State v. Bearup, 221 Ariz. 163, 174, ¶ 58 (2009)
(judicial notice of superior court records).

¶13          We conclude the superior court did not abuse its discretion in
permitting De Groote to waive counsel without first requiring a
competency evaluation. As a result, no error occurred. See State v. Escalante,
245 Ariz. 135, 142, ¶ 21 (2018) (first step in error review is determining
whether error occurred).

II.    Notice of Probation Conditions

¶14          De Groote next argues that because he was incompetent when
the court imposed probation, he effectively lacked notice of his probation
conditions.

¶15             A court cannot revoke probation unless the defendant had
written notice of the term he allegedly violated. Ariz. R. Crim. P. 27.8(c)(2),
27.1; see also State v. Jones, 163 Ariz. 498, 499 (App. 1990). “[I]f an order is
important enough to warrant a revocation petition, the order first must be
reduced to writing and given to probationer, as is clearly contemplated” by
Rule 27.8(c)(2). State v. Robinson, 177 Ariz. 543, 546 (1994).

¶16            The record belies De Groote’s contention he lacked sufficient
notice of the terms of his probation. De Groote signed the terms of his
probation, which were all in writing. Condition 6 of De Groote’s probation
terms stated that he would report to the Adult Probation Department
within 72 hours of sentencing, discharge, or release. De Groote admitted at
the revocation hearing both that he had “absconded” from his community
supervision and that he had not reported to his probation officer “at any
time.” When asked about reporting for probation, De Groote did not deny
he failed to report within 72 hours, nor did he assert that he misunderstood
the terms, but instead claimed he “wasn’t under Navajo County
jurisdiction.” This assertion was merely another one of De Groote’s
pseudolegal theories and the superior court did not err in finding that De
Groote had legally sufficient notice of his probationary terms.

¶17         To the extent that De Groote argues that his probationary
terms were unenforceable because he was incompetent at the time the court
imposed them, we lack jurisdiction to consider the issue. See supra ¶¶ 5–6.
The record here shows that De Groote understood the conditions of his


                                       5
                             STATE v. DE GROOTE
                              Decision of the Court

probation and decided to intentionally violate at least one of those
conditions.

III.   Aggravated Sentence

¶16           De Groote next argues the superior court impermissibly
imposed an aggravated sentence. Specifically, he argues the court
considered improper aggravators and failed to properly consider evidence
of mitigation. We review the legality of a sentence de novo. State v. Johnson,
210 Ariz. 438, 440, ¶ 8 (App. 2005).

¶17            The Fifth Amendment to the United States Constitution states
that no one “shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V; see also Ariz. Const. art. 2, § 10 (“No person
shall be compelled in any criminal case to give evidence against himself.”).
Criminal defendants enjoy the right to remain silent through the
presentence investigation and can “not be penalized for invoking that
right.” State v. Kerekes, 138 Ariz. 235, 237 (App. 1983); see also State v. Trujillo,
227 Ariz. 314, 318, ¶ 14 (App. 2011) (court may not consider a defendant’s
lack of remorse or failure to admit guilt during sentencing).

¶18            The following occurred at the sentencing hearing:

       THE COURT: All right, thank you. Well, you did just get out
       of prison, but that was on a Maricopa County case and then
       the problem is you never reported to probation for this case –
       for the last case that I gave you a break on, I think, and did
       place you on probation even though there was prison
       sentence recommended in that one as well. You do have a
       pretty extensive criminal history, you’ve got four prior
       felonies.

       MR. DE GROOTE: Well, I feel like, I feel like –

       THE COURT: It’s my turn to talk now. So actually five
       felonies and seven misdemeanors. You’ve been placed on
       probation three times. You’ve been to prison, as well, a few
       times. You refused to cooperate with the presentence writer,
       saying that you weren’t going to answer any of their
       questions because they were fiction and the probation officer
       was fiction and –

       MR. DE GROOTE: Well, Your Honor –



                                         6
                           STATE v. DE GROOTE
                            Decision of the Court

       THE COURT: Again, you had your chance to talk to me. So
       on balance I think the aggravators do outweigh the
       mitigators. I don’t really see any mitigating circumstances. So
       I am going to sentence you to a slightly aggravated term of
       seven and a half years with credit for 400 – was it, 447. 447
       days.

¶19           De Groote contends this colloquy demonstrates that the court
impermissibly relied on his failure to cooperate with the presentence report
author when it decided to impose an aggravated sentence. But this
argument presumes De Groote remained entitled under the Fifth
Amendment to decline to speak with the presentence report author. The
sentence the court imposed was on the class 2 felony to which De Groote
pled guilty in 2009. By pleading guilty to that crime, he waived his right to
Fifth Amendment protections to remain silent in connection with the
resulting sentencing. In other words, having admitted the crime, he no
longer had the right not to speak about the crime. This is in contrast to
Kerekes, in which a jury found the defendant guilty and there was no guilty
plea.

¶20            Even assuming De Groote was entitled to Fifth Amendment
protections in this context, and the trial court violated his rights, De Groote
still bore the burden to establish prejudice. He does not assert he was
prejudiced, much less meet his burden to prove prejudice. De Groote was
convicted of conspiracy to transport or sell a narcotic, a class 2 felony. A.R.S.
§§ 13-3408(A)(7), (B)(7); -1003(D). The court sentenced him under A.R.S. §
13-702, which provides a presumptive term of five years. De Groote had
been convicted of several prior felonies, including one within the ten years
before he committed the conspiracy offense for which he was sentenced. See
A.R.S. § 13-701(D)(11). It was thus within the trial court’s discretion to
impose an aggravated sentence, and De Groote’s plea agreement explicitly
contemplated a sentence between five years and 12.5 years (which could be
imposed in exceptional circumstances). The court identified a statutory
aggravator (prior convictions) and imposed an aggravated sentence that
remained within the range of sentences contemplated. De Groote has failed
to show, and the record does not support, a different sentencing result
could reasonably have been reached, Escalante, 245 Ariz. at 142, 144, ¶¶ 21,
29–30, or that the court would not have imposed the same sentence in any
event, State v. Henderson, 210 Ariz. 561, 568, ¶ 26 (2005). The court did not
violate the Fifth Amendment in sentencing De Groote.

¶21          De Groote also argues that the sentence was improper
because: he had no notice of the aggravating factors; the court failed to


                                       7
                          STATE v. DE GROOTE
                           Decision of the Court

make sufficient findings to support the statutory aggravator; the court
failed to consider his mental health issues in mitigation; the court gave him
insufficient incarceration credit; and the errors taken together require
resentencing. We address each briefly in turn. First, De Groote’s indictment
and subsequent presentence reports as early as 2011 gave him sufficient
notice of potential aggravating factors. State v. Jenkins, 193 Ariz. 115, 121,
¶ 21 (App. 1998). Second, given the aggravated sentence imposed fell well
within the maximum sentencing range contemplated in De Groote’s plea
agreement, it is not clear the court had to make unequivocal or explicit
findings regarding the statutory aggravator. Nonetheless, the court
explicitly discussed De Groote’s criminal history, including five prior
felonies and seven misdemeanors.

¶22           With regard to mitigating factors, the court stated on the
record that it did not “see any mitigating circumstances” and thus did
consider whether the sentence should be mitigated. De Groote did not ask
the court to consider his mental health to support mitigation, though the
court was familiar with the questions surrounding his mental health due to
the earlier competency evaluation and psychologist’s report, infra at ¶¶ 11–
12. Thus, the record indicates the court had the opportunity to find De
Groote’s mental health was a mitigating factor and declined to do so.

¶23             De Groote contends the trial court “may not have” given him
credit for all time spent in presentence custody. But he concedes that “[t]he
record is inadequately developed to make a complete argument respecting
this issue.” We decline to address this argument. State v. Lindner, 227 Ariz.
69, 70, ¶ 3 n. 1 (App. 2010).

¶24          Finally, De Groote asserts the posited errors cumulatively
require resentencing. We disagree. He has proved no error, and, in any
event, the Arizona Supreme Court has specifically held that cumulative
error only applies to cases involving allegations of prosecutorial
misconduct. State v. Hughes, 193 Ariz. 72, 78–79, ¶ 25 (1988).

                              CONCLUSION

¶25           We affirm De Groote’s probation revocation and sentence.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA     8
