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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      PHAROAH PADILLA, Appellant.

                             No. 1 CA-CR 14-0410
                                 FILED 10-15-15


           Appeal from the Superior Court in Coconino County
                         No. S0300CR20080954
             The Honorable Joseph J. Lodge, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
                       MEMORANDUM DECISION

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


N O R R I S, Judge:

¶1            Pharoah Padilla appeals from the superior court’s revocation
of his probation and resulting prison sentences. On appeal, Padilla
essentially argues the State failed to prove he had willfully violated his
probation. He also challenges the constitutionality of a term of probation
that prohibited him from going to or loitering near parks or “other places
primarily used by children,” and argues the superior court was biased
against him and improperly imposed consecutive sentences. For the
following reasons, we reject these arguments and affirm Padilla’s probation
revocation and prison sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In January 2010, Padilla pleaded guilty to two counts of sexual
abuse of a minor, each a dangerous crime against children. Because Padilla
entered his plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.
160, 27 L. Ed. 2d 162 (1970), he maintained his innocence. “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. Superior Court, 162 Ariz. 206, 207, 782 P.2d 324,
325 (App. 1989). The parties stipulated that if Padilla violated his probation,
he would be sentenced to consecutive terms of incarceration not to exceed
ten years.

¶3               On February 4, 2010, the superior court placed Padilla on
lifetime intensive probation. As relevant here, the terms of probation
required Padilla to “actively participate in evaluation and treatment,
including but not limited to, psychological, psychiatric and physiological
assessments, and/or the polygraph” (“treatment term”); abide by any
curfew his probation officer imposed (“curfew term”); submit to drug and
alcohol testing (“testing term”); and charge his GPS monitor daily for at
least two hours (“GPS term”). The terms of probation prohibited Padilla
from consuming alcohol (“alcohol term”) and “go[ing] to or loiter[ing] near
. . . parks, playgrounds, . . . or other places primarily used by children under
the age of 18” (“park term”).
                           STATE v. PADILLA
                           Decision of the Court
¶4            In September 2010, pursuant to the treatment term, Padilla
began attending weekly group therapy sessions for sex offenders
conducted by K.K. During the next 16 months, Padilla missed some of the
sessions and failed to meaningfully participate in others. When he attended
group therapy, Padilla was continually “oppositional and defiant,” and he
refused to explain why the polygraph examination results indicated
deception. On January 23, 2012, K.K. sent Padilla’s probation officer a letter
stating he was dismissing Padilla from the sex offender treatment
program.1

¶5            The next day, Padilla’s probation officer petitioned to revoke
Padilla’s probation, alleging Padilla had been dismissed from sex offender
treatment because of his “non-compliance.” The petition also alleged
Padilla had consumed alcohol on three occasions; traveled past or through
a Flagstaff park, Thorpe Park, three times in one day; violated his curfew
twice; failed to submit to a urinalysis twice; failed to charge his GPS
tracking device; and failed to participate in three polygraph examinations.

¶6             At the probation revocation hearing, Padilla denied he had
voluntarily stopped participating in the sex offender treatment, and
testified K.K. had dismissed him because, consistent with his Alford plea, he
had refused to admit guilt for the actions underlying his convictions. K.K.,
however, testified he had not dismissed Padilla from group therapy
because Padilla had refused to admit guilt, but because he “refused to do
any work.”

¶7            Although he denied violating the sex offender portion of the
treatment term, Padilla admitted to violating the alcohol term, testing term,
curfew term, and committing one of the polygraph violations. Padilla
denied violating the park term and explained he drove by Thorpe Park on
his way to and from work. Similarly, he testified the GPS tracking device
was defective because “it wouldn’t take a charge.”

¶8           The superior court found Padilla had not violated the GPS
term and had not failed to miss the two polygraph examinations he had
challenged. The superior court found, however, that Padilla had violated
the treatment term as well as the testing, alcohol, curfew, and park terms.
The court revoked Padilla’s probation and sentenced him to the




              1Approximately    one month earlier, Padilla            had
unsuccessfully requested the court to “change the location of counseling”
because of conflicts with K.K.


                                      3
                            STATE v. PADILLA
                            Decision of the Court
presumptive term of five years’ imprisonment on each count with the
sentences to run consecutively.

                               DISCUSSION

I.     Violation of Treatment Term

¶9             Padilla argues the superior court should not have revoked his
probation because the State failed to prove he had willfully violated the
treatment term. In making this argument, Padilla contends that even
though his Alford plea did not require him to admit guilt, that is, to admit
he had sexually abused the victims, K.K. nevertheless dismissed him from
treatment because he refused to do so. Based on the same factual premise
— that K.K. dismissed him from treatment because he refused to admit guilt
— Padilla also argues the superior court failed to give him “fair notice” that
his failure to admit guilt could be used to revoke his probation;2 his
dismissal from treatment and the revocation of his probation violated his
Fifth Amendment right against self-incrimination; and, the State “violated
the spirit of the plea agreement” by petitioning to revoke his probation
when it knew sex offender treatment programs required participants to
admit guilt, even though Padilla’s Alford plea allowed him to “maintain his
innocence.“ We reject all of these arguments.

¶10            The State demonstrated by a preponderance of the evidence
Padilla willfully violated the treatment term because he failed to participate
in treatment, and not because he refused to admit guilt. See State v. Tatlow,
231 Ariz. 34, 39, ¶ 15, 290 P.3d 228, 233 (App. 2012) (State must prove willful
probation violation by preponderance of evidence). Based on this evidence,
the superior court did not abuse its discretion in revoking Padilla’s
probation. See id. at 39-40, ¶ 15, 290 P.3d at 233-34 (appellate court views
evidence in light most favorable to sustaining superior court’s finding that
probationer violated term of probation and will not reverse unless finding
is “arbitrary and unsupported by any theory of the evidence”) (citations
omitted) (internal quotation marks omitted).

       A.     Sex Offender Therapy

¶11           Before addressing the evidence presented by the State at the
revocation hearing, we acknowledge the inherent conflict created when a
court accepts a defendant’s Alford plea to a sexual offense and then requires

              2Indeed, at Padilla’s sentencing in 2010, the superior court
told Padilla that his failure to admit guilt would not be considered a
probation violation.


                                      4
                             STATE v. PADILLA
                             Decision of the Court
the defendant to participate in a sex offender treatment program as part of
his or her probation. Although some courts have upheld probation
revocations despite this conflict, see, e.g., Carroll v. Commonwealth, 701 S.E.2d
414 (Va. 2010); State ex rel. Warren v. Schwarz, 579 N.W.2d 698 (Wis. 1998),
others have not, see People v. Walters, 627 N.Y.S.2d 289 (N.Y. Crim. Ct. 1995).
Given this inherent conflict and the difficulties caused by Alford pleas in
cases alleging sexual offenses, before accepting an Alford plea in such a case,
a superior court should consider whether the defendant will be able to fully
participate in and successfully complete sex offender treatment and
whether such a term of probation is appropriate.

¶12            As discussed above, at the probation revocation hearing, K.K.
testified Padilla’s failure to admit to his criminal sexual conduct was not the
basis for dismissing him. Rather, K.K. dismissed Padilla for failing “to do
any work,” which K.K. said was “completely different than admitting
guilt.” The “work” Padilla refused to do included homework assignments
and explaining why he failed a polygraph examination. K.K. also testified
an important goal of sex offender therapy was the patient’s empathy for the
victim, regardless of whether the patient also admitted guilt. And, despite
the severe sexual trauma experienced by the victims, Padilla consistently
expressed no empathy for them.

¶13            Despite this evidence, Padilla points to evidence that K.K.
dismissed him because he refused to “take ownership of his offense
history” and was “in denial” regarding any “wrongdoing.” K.K., however,
testified Padilla had explained during therapy that the victims had told him
someone else had engaged in inappropriate sexual conduct with them.
When the participants in the therapy group asked Padilla why he did not
report this to the police, he responded, “That was not my thing.” K.K.
testified, “Ownership is not just about guilt. It’s about being present when
things happen that are there . . . . It’s just stating the fact, ‘Yes. I was there,
I was present, this happened.’” K.K. further testified that when people
begin therapy, they may deny the criminal conduct, but eventually they
“take some responsibility for . . . being in this situation here.”

¶14           Based on this evidence, the superior court did not abuse its
discretion in finding Padilla had willfully violated the treatment term and
in revoking his probation.3


               3Padilla
                     argues the State should not have petitioned to revoke
his probation because, although K.K. found him unsuitable for group
therapy, he was suitable for individual therapy. The record contains no



                                        5
                            STATE v. PADILLA
                            Decision of the Court
       B.     Polygraph Examinations

¶15            Padilla’s probation officer testified that two of Padilla’s
polygraph examination results indicated deception. Consequently, as part
of its finding that Padilla had violated the treatment term, the court relied
on these polygraph results. Padilla argues the court abused its discretion
in considering the polygraph results because they were unreliable and
inaccurate.4

¶16            We review this argument for fundamental error because
Padilla did not raise it in the superior court. State v. Henderson, 210 Ariz.
561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To obtain relief under fundamental
error review, Padilla has the burden to show that error occurred, the error
was fundamental, and he was prejudiced thereby. See id. at 567-68, ¶¶ 20-
22, 115 P.3d at 607-08. Fundamental error is error that “goes to the
foundation of his case, takes away a right that is essential to his defense,


evidence, however, that Padilla would have been a successful candidate for
individual therapy.

               4Padilla  also asserts the superior court violated his due
process rights because he was not given notice that deceptive polygraphs
would be considered a probation violation. Padilla has not sufficiently
developed this argument or provided any supporting authority. As a
result, we will not address it. Ariz. R. Crim. P. 31.13(c)(1)(vi) (“The
appellant’s brief shall include . . . [a]n argument which shall contain the
contentions of the appellant with respect to the issues presented, and the
reasons therefor, with citations to the authorities, statutes and parts of the
record relied on.”); State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119,
1147 n.9 (2004) (“In Arizona, opening briefs must present significant
arguments, supported by authority, setting forth an appellant’s position on
the issues raised.”) (quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382,
1390 (1989)); State v. Sanchez, 200 Ariz. 163, 166, ¶ 8, 24 P.3d 610, 613 (App.
2001) (issue waived because defendant failed to develop argument in his
brief).
                Padilla also argues the probation term requiring him to
participate in polygraph examinations violated his Fifth Amendment right
against self-incrimination and was therefore unenforceable. Even if we
found merit in this argument, Padilla has not specified any questions the
examiner required him to answer which implicated his right against self-
incrimination. We thus reject this argument.




                                       6
                            STATE v. PADILLA
                            Decision of the Court
and is of such magnitude that he could not have received a fair trial.” Id. at
568, ¶ 24, 115 P.3d at 608.

¶17            Evidence of polygraph examination results is per se
inadmissible in criminal trials because of its unreliability. State v. Perez, 233
Ariz. 38, 43, ¶ 18, 308 P.3d 1189, 1194 (App. 2013). Probation revocation
hearings, however, are not subject to the same evidentiary limitations of a
criminal trial. State v. Goodloe, 107 Ariz. 141, 142, 483 P.2d 556, 557 (1971).
Indeed, in Goodloe, our supreme court held polygraph results are admissible
in a revocation proceeding “so long as there is not a delegation of the
authority vested in the court by A.R.S. § 13-1657.”5 Id.

¶18          Here, the superior court did not rely solely on Padilla’s
polygraph results in revoking his probation. Instead, the court made its
decision based on Padilla’s admissions and the testimony of K.K. and
Padilla’s probation officers, all of whom identified multiple probation
violations. Given this evidence, the superior court did not commit
fundamental error in relying on Padilla’s polygraph results in deciding to
revoke his probation.

II.    The Park Term

       A.     Constitutional Challenges

¶19          As noted, the superior court found Padilla had violated the
park term, which stated: “You shall not go to or loiter near schoolyards,
parks, playgrounds, arcades, or other places primarily used by children
under the age of 18 without written permission of your probation officer.”
Focusing on the word “parks” by itself and without the modifier,
“primarily used by children under the age of 18,” Padilla argues the park
term was unconstitutionally vague. Although Padilla did not raise this
argument in the superior court, he raises a constitutional issue, subject to
our de novo review. State v. Bocharski, 218 Ariz. 476, 483, ¶ 17, 189 P.3d 403,
410 (2008).

¶20          Properly construed, the park term did not prohibit Padilla
from going to any park, but only those parks “primarily used by children.”
See State v. Elmore, 174 Ariz. 480, 483, 851 P.2d 105, 108 (App. 1992)
(“Probation terms violate due process rights if a person of ordinary


              5Section 13-1657(B), repealed in 1978,
                                                  see 1977 Ariz. Sess. Laws
Ch. 142, § 36, is the historical equivalent of A.R.S. § 13-901(C), which
authorizes the court to revoke a defendant’s probation.



                                       7
                           STATE v. PADILLA
                           Decision of the Court
intelligence cannot understand what conduct is required or prohibited.”).
By forbidding access to a specified list of places, followed by the phrase
“other places primarily used by children,” the term sufficiently described the
types of “parks” it prohibited Padilla from visiting. Specifically, the words
“other places” clearly connect “parks” with the descriptive phrase
“primarily used by children” such that a probationer of ordinary
intelligence convicted of a sexual offense against children would
understand he or she was prohibited from going to or loitering near parks
primarily used by children. The park term is not unconstitutionally vague.

¶21           Padilla also argues the term is overbroad because it
prohibited him from going to any park, regardless of its primary use. See
State v. Thompson, 138 Ariz. 341, 345, 674 P.2d 895, 899 (App. 1983) (“A
statute is overbroad when its language, given its normal meaning, is so
broad that sanctions may apply to conduct which the state is not entitled to
regulate.”). Given that the term only prohibited Padilla from visiting parks
primarily used by children, its scope was sufficiently limited to address the
purposes of probation: promoting rehabilitation and protecting the public.
See Ariz. R. Crim. P. 27.1 (court may impose probation conditions that
promote rehabilitation); Pima Cnty. Juv. Action No. J-20705-3, 133 Ariz. 296,
297, 650 P.2d 1278, 1279 (App. 1982) (court has inherent power to impose
probation terms that control a probationer’s behavior “to attempt the
rehabilitation of the [probationer] and to protect society from further
[criminal] acts.”). The park term was not, therefore, overbroad.

III.   Violation of the Park Term: Sufficiency of the Evidence

¶22          Padilla argues the superior court’s finding that he violated the
park term was not supported by sufficient evidence. First, he argues his
admission that he “drove past” Thorpe Park three times in one day did not
support a finding of “going to” the park. We disagree.

¶23            According to GPS tracking, Padilla drove by Thorpe Park
each time at a speed between five and seven miles-per-hour. The speed
limit on the road Padilla traveled was 25 miles-per-hour. Although Padilla
testified he drove past Thorpe Park to go to and from work more quickly,
he did not explain why he drove by the park so slowly. Furthermore,
Padilla’s probation officer, after describing the location of Padilla’s
workplace, testified that Padilla had “no reason” to drive past Thorpe Park.

¶24           This evidence was probative of Padilla “going to” Thorpe
Park. Further, his slow driving speed was probative of Padilla loitering
near the park. See American Heritage Dictionary 1029 (4th ed. 2006)
(defining “loiter,” in part, as “[t]o proceed slowly or with many stops”).


                                      8
                            STATE v. PADILLA
                            Decision of the Court
¶25            Second, Padilla argues the State did not present any evidence
showing Thorpe Park is primarily used by children. Because Padilla did
not raise this argument in the superior court, we review for fundamental
error. At the revocation hearing, Padilla’s probation officer explained
Thorpe Park is adjacent to a school in a residential neighborhood and noted,
“It’s pretty fair [to say] it would be frequented by children.”6 On appeal,
Padilla does not argue this testimony—that Thorpe Park is “frequented by
children”—is different from “primarily used by children.” Accordingly,
reviewing for fundamental error, we reject this argument.

¶26           Thus, sufficient evidence supported the superior court’s
finding that Padilla violated the park term.

IV.    Bias of the Court

¶27           Padilla argues the superior court was biased against him and,
accordingly, deprived him of a fair hearing. To support this argument,
Padilla highlights comments the court made when it questioned him and
other witnesses during both the revocation hearing and disposition.
Because Padilla failed to object to the court’s comments at the hearing, we
review for fundamental error.

¶28           In Liteky v. United States, the United States Supreme Court
declared:

              [J]udicial remarks during the course of a trial
              that are critical or disapproving of, or even
              hostile to, counsel, the parties, or their cases,
              ordinarily do not support a bias or partiality
              challenge . . . [however,] they will do so if they
              reveal such a high degree of favoritism or
              antagonism as to make fair judgment
              impossible.

510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994).

¶29         Based on our review of the record, the judge treated Padilla
with disrespect. The court’s questioning of Padilla was sarcastic and


              6Padilla  relies on a description of Thorpe Park from a city
website as evidence it is not primarily used by children. This description,
however, is not in the record on appeal and thus we will not consider it. See
State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315, 324 (1997); Ariz. R. Crim.
P. 31.8 (describing record on appeal).


                                       9
                           STATE v. PADILLA
                           Decision of the Court
disrespectful. The judge’s conduct failed to comport with Rule 1.2 of the
Arizona Code of Judicial Conduct, which states, “A judge shall act at all
times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and shall avoid impropriety and
the appearance of impropriety.”

¶30           We cannot conclude, however, that the judge exhibited “such
a high degree of favoritism or antagonism as to make fair judgment
impossible.” See Liteky at 555-56, 114 S. Ct. at 1157 (“Not establishing bias
or partiality, however, are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect
men and women, even after having been confirmed as . . . judges,
sometimes display.”).

¶31           Furthermore, Padilla has not carried his burden under
fundamental error review to establish the judge’s improper comments were
prejudicial. Nothing in the record indicates that had the judge presiding
over the revocation hearing not made the improper remarks, or had another
judge presided, the result would be any different. See State v. Munninger,
213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) (prejudice must be
shown in the record and may not be based solely on speculation). Indeed,
the judge found Padilla had not violated the GPS term or the treatment term
as to two of the three missed polygraph examinations. See supra ¶ 8.
Consequently, although we agree with Padilla the judge treated him with
disrespect, we see no fundamental, prejudicial error.

V.    Consecutive Sentencing

¶32           Padilla argues the superior court’s imposition of consecutive
prison terms was illegal and void as contrary to public policy because
Arizona law does not presume sentences should run consecutively. Padilla
also argues the stipulation in the plea agreement that required consecutive
sentences violated Arizona Rule of Criminal Procedure 17.4(d), and,
therefore, prohibited the superior court from determining whether the
stipulation was appropriate “at the time of sentencing.” We disagree with
these arguments.

¶33           Although Padilla is correct in arguing A.R.S. § 13-711 does not
contain a presumption that sentences should run consecutively, the statute
does not forbid such sentencing. See State v. Ward, 200 Ariz. 387, 388-89, ¶¶
3-4, 26 P.3d 1158, 1159-60 (App. 2001) (predecessor statute to § 13-711 does
not create a presumption for consecutive or concurrent sentences); see also
2008 Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.) (renumbering § 13-708 to
§ 13-711). Furthermore, Padilla pleaded guilty to engaging in sexual contact


                                     10
                             STATE v. PADILLA
                             Decision of the Court
with two different victims; thus, consecutive sentences were entirely
proper.7 See, e.g., State v. Riley, 196 Ariz. 40, 46–47, ¶ 21, 992 P.2d 1135, 1141–
42 (App. 1999) (affirming consecutive sentences for offenses committed
against multiple victims).

¶34           The stipulation to consecutive sentences also did not “usurp[]
the responsibility” of the superior court, as Padilla argues. “The court shall
not be bound by any provision in the plea agreement regarding the sentence
or the term and conditions of probation to be imposed, if, after accepting
the agreement and reviewing a presentence report, it rejects the provision
as inappropriate.” Ariz. R. Crim. P. 17.4(d). Consistent with Rule 17.4(d),
the parties’ stipulation to consecutive sentences expressly stated it was
subject to court approval.        Accordingly, the consecutive sentence
stipulation did not prohibit the superior court at the disposition hearing
from determining its propriety.

                                CONCLUSION

¶35          For the foregoing reasons, we affirm Padilla’s probation
revocation and resulting prison sentences.




K E S S L E R, J., Specially Concurring:

¶36           I concur with the majority’s decision, but write separately to
emphasize my views on the sufficiency of the evidence that Padilla violated
his probation when he drove by a park. As the majority mentioned, see
supra ¶ 25, the evidence showed that minors frequented the park and the
park was next to a school. There is a distinct difference, however, between
minors frequenting a place and the place being primarily used by minors.


               7Padilla relies on State v. Solano, 150 Ariz. 423, 724 P.2d 42
(App. 1985), to support his argument that the stipulation to consecutive
sentencing was unlawful and contrary to public policy. Our supreme court,
however, vacated that decision. State v. Solano, 150 Ariz. 398, 724 P.2d 17
(1986). Also, State v. Baum, 182 Ariz. 138, 893 P.2d 1301 (App. 1995), another
case Padilla cites in support, is inapposite. There, we held that the
revocation court abused its sentencing discretion by imposing an
aggravated prison sentence based on the defendant’s probation violations,
rather than sentencing him for the original crime. Id. at 140, 893 P.2d at
1303.


                                        11
                            STATE v. PADILLA
                      Kessler, J., Specially Concurring
Nevertheless, we must review the evidence in the light most favorable to
affirm, State v. Tatlow, 231 Ariz. 34, 39-40, ¶ 15, 290 P.3d 228, 233-34 (App.
2012), and give deference to the judge acting as factfinder. While I might
not have reached the same conclusion as the trial judge, the facts that
children frequent a park next to a school combined with Padilla not
disputing that the park was primarily used by minors during the revocation
hearing, makes me conclude that there was no clear error on that issue.




                                   :jt


                                         12
