                          NOTICE: NOT FOR PUBLICATION.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.

                   JOHN ANTHONY SARNO, Appellant.

                             No. 1 CA-CR 13-0186
                               FILED 4-22-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR20061098
                 The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. SARNO
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in
which Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones
joined.


J O H N S E N, Judge:

¶1            After John Anthony Sarno admitted violating his probation
by failing to pay restitution, the superior court reinstated him on
probation but added an additional condition of probation that he serve a
term of 270 days in jail, commencing no later than a date certain. The
court ordered, however, that Sarno's jail term would be discharged if he
paid $15,000 in restitution before a designated date. Sarno neither turned
himself in to the jail nor paid the $15,000. He now appeals the court's
order revoking his probation. We affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In May 2009, Sarno pled guilty to theft of more than $3,000, a
Class 3 felony. The superior court suspended his sentence and placed him
on five years' probation. 1 As a condition of his probation, Sarno was
ordered to pay restitution of $36,000 in monthly payments of $600. Less
than a year later, Sarno was $4,800 in arrears, and in February 2010, his
probation officer petitioned to revoke his probation. Sarno entered in a
plea agreement, which the court accepted, to extend his probation an
additional two years.

¶3            Sarno, however, continued to fail to make his monthly
restitution payments. On July 13, 2011, his probation officer filed a second
petition to revoke probation, alleging Sarno was delinquent $11,545.
Sarno again accepted a plea agreement and admitted the violation in
exchange for reinstatement. He agreed to leave the terms of his probation
to the court's discretion, and further agreed to waive his right to appeal


1      On appeal, we view the facts in the light most favorable to
sustaining the superior court's findings. See State v. Maldonado, 164 Ariz.
471, 473, 793 P.2d 1138, 1140 (App. 1990).




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                           STATE v. SARNO
                          Decision of the Court

from the sentence imposed as a result of his admission to the probation
violation. The court accepted the plea agreement and ordered, as an
additional term of probation, that Sarno serve 270 days in Mohave County
Jail, commencing no later than 5 p.m. on September 10, 2012. The court
also ordered, however, that if Sarno paid $15,000 in restitution by
September 4, 2012, he would not be required to serve his jail term.

¶4            Sarno failed to pay the $15,000 by the deadline and, close to
5 p.m. on September 10, went to where he thought the jail was located,
only to discover that the jail had moved. He telephoned the jail about the
misunderstanding and was informed that even if he went directly to the
new jail location, he would not be allowed in that night because it was
past the cut-off time for accepting new inmates. Sarno then faxed a letter
to the court explaining the mistake and promising to turn himself in the
next day. The following day, Sarno reported to the new jail, but it refused
to accept him because he was not on the roster and did not bring
documentation from the court authorizing the jail to take him into
custody. After this second failed attempt, Sarno made no further attempts
to turn himself in and did not contact the court or his probation officer.

¶5             On October 1, 2012, the probation department filed a third
petition to revoke probation, alleging Sarno continued to violate his
probation by failing to pay the $15,000 in restitution and failing to turn
himself in to jail. After a hearing, the court found Sarno's failure to pay
the $15,000 was not a violation of his probation. The court explained that
the $15,000 payment was not a condition of probation but instead was an
"escape clause" by which Sarno could have avoided jail. The court found
Sarno violated his probation by failing to turn himself in to jail on the
designated date. Although the court accepted that Sarno made two good-
faith efforts to turn himself in, it found his failure to take subsequent
action for two months following the failed attempts "did not come
anywhere near complying" with the order. The court revoked his
probation and sentenced him to 3.5 years' imprisonment.

¶6            Sarno timely appeals. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2014), 13-4031 (2014) and -
4033(A) (2014). 2



2     Absent material revision after the relevant date, we cite a statute's
current version.



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                             STATE v. SARNO
                            Decision of the Court

                                DISCUSSION

A.     Standard of Review.

¶7              A probation violation must be proved by a preponderance of
the evidence. State v. Thomas, 196 Ariz. 312, 313, ¶ 2, 996 P.2d 113, 114
(App. 1999). On appeal, this court "will uphold the superior court's
finding that a [defendant] has violated probation unless the finding is
arbitrary or unsupported by any theory of evidence." State v. Vaughn, 217
Ariz. 518, 521, ¶ 14, 176 P.3d 716, 719 (App. 2008) (internal quotation
marks and citations omitted). Evidence "is not insufficient simply because
the testimony is conflicting." Thomas, 196 Ariz. at 313, ¶ 3, 996 P.2d at 114;
see also State v. Ballinger, 110 Ariz. 422, 425, 520 P.2d 294, 297 (1974). "It is
for the trial court to resolve such conflicts and to assess the credibility of
witnesses in doing so." Thomas, 196 Ariz. at 313, ¶ 3, 996 P.2d at 114.

B.     The $15,000 "Escape Clause."

¶8            Sarno argues the superior court improperly revoked his
probation without conducting a hearing to determine whether his refusal
to pay the $15,000 was a willful violation of his probation. See Bearden v.
Georgia, 461 U.S. 660, 672 (1983) ("in revocation proceedings for failure to
pay a fine or restitution, a sentencing court must inquire into the reasons
for the failure to pay"); State v. Davis, 159 Ariz. 562, 563, 769 P.2d 1008,
1009 (1989) (probation may not be revoked solely for non-payment
without regard for ability to pay).

¶9             But the court did not find Sarno violated his probation by
failing to pay the $15,000. It found he violated probation only by failing to
turn himself in by the appointed date to begin his jail term. During the
revocation hearing, when the State attempted to argue Sarno violated his
probation by failing to pay the $15,000, the court replied, "not paying . . .
isn't a violation of his probation; it just means that he didn't get out of
having to serve the 270 days in jail." At the sentencing hearing, the court
reiterated, "The only violation that was found was not turning himself into
the jail on time." Thus, contrary to Sarno's assertion, the court did not
impose a jail term for his failure to pay the $15,000; in reinstating him on
probation the second time, the court imposed 270 days in jail as a term of
probation, and allowed Sarno to avoid serving that time if, prior to the
appointed date, he paid $15,000 in restitution. As the court explained
during the revocation hearing:

       I understand that someone looking at this file would think
       that I ordered the defendant to pay $15,000 by a date certain.


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                             STATE v. SARNO
                            Decision of the Court

       That's really not what I did . . . . At the time that I reinstated
       the defendant on probation, which was January 13, 2012, I
       felt, under all the circumstances, that he ought to do nine
       months in jail . . . .

                                     * * *

       And so I took the position you ought to do nine months in
       jail, and I'm going to order you to do nine months in jail; but
       I also gave him kind of an escape clause, and that is, if you
       come up with $15,000 before then, you won't have to do the
       jail time.


¶10           Because the $15,000 "escape clause" was not a condition of
Sarno's probation and was not the subject of the revocation proceeding,
the superior court was not required to hold a Bearden hearing. See 461 U.S.
at 672-73. 3

C.     Sarno's Failure to Report to Jail.

¶11            Sarno also argues there was insufficient evidence he
willfully failed to turn himself in to jail because he made two unsuccessful
but good-faith attempts to do so. 4 Ample evidence, however, supports the



3      To the extent Sarno contends the $15,000 "escape clause" was an
improper or illegal term of probation, we lack jurisdiction to review that
argument. A.R.S. § 13-4033(B) (2014) ("In noncapital cases a defendant
may not appeal from a judgment or sentence that is entered pursuant to a
plea agreement or an admission to a probation violation."); see also State v.
Regenold, 226 Ariz. 378, 378, ¶ 1, 249 P.3d 337, 337 (2011).

4      We need not decide whether the State must prove a defendant
intentionally violated a probation condition such as the requirement the
court imposed in this case to begin a jail sentence by a particular date. See
Bearden, 468 U.S. at 668, n.9 ("We do not suggest that, in other contexts
[besides the failure to pay restitution], the probationer's lack of fault in
violating a term of probation would necessarily prevent a court from
revoking probation."); cf. State v. Alves, 174 Ariz. 504, 506, 851 P.2d 129, 131
(App. 1992) (a violation of probation must be "willful," meaning the
defendant must receive written notice of all the terms of probation).



                                       5
                            STATE v. SARNO
                           Decision of the Court

superior court's finding that Sarno failed to report to commence his jail
sentence. Even accepting Sarno's contention that he made two good-faith
efforts to report to begin his jail term, after those attempts failed, he did
nothing else during the two months that followed to comply with the term
of probation that he serve his jail term. In the court's words: "[H]e could
have gone to probation, he could have come to the court, he maybe could
have gone to his attorney's office; he could have done something." Sarno
does not dispute that he failed to contact the court or his probation officer
from September 11, 2012 until November 18, 2012, when he was arrested
for violating his probation.

                              CONCLUSION

¶12           For the reasons stated above, we affirm the superior court's
revocation of Sarno's probation and the resulting sentence.




                                  :MJT




Evidence in the record was sufficient for the court to conclude that Sarno
willfully failed to turn himself in to begin his jail term.



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