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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                ANTHONY WILLIAM CHAVEZ, Appellant.

                             No. 1 CA-CR 18-0711
                               FILED 9-19-2019


            Appeal from the Superior Court in Apache County
                         No. S0100CR201400204
                             S0100CR201500173
                             S0100CR201500174
                             S0100CR201500206
                             S0100CR201500251
               The Honorable Michael D. Latham, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
                            STATE v. CHAVEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.


W I N T H R O P, Judge:

¶1            Anthony William Chavez appeals the superior court’s
decision to revoke his probation and resulting sentences. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2              On April 4, 2016, Chavez entered a combined plea agreement,
pleading guilty to seven felony counts in five cases. A sixth case was
dismissed. The superior court suspended sentence and placed Chavez on
concurrent terms of intensive supervised probation (“IPS”). The court
imposed seven years of IPS on all of the Class 2 felony counts (promoting
prison contraband and two counts of trafficking in stolen property in the
first degree); five years of IPS on all of the Class 3 felony counts (two counts
of burglary in the second degree); four years of IPS on the Class 4 felony
count (burglary in the third degree); and three years of IPS on the Class 6
felony count (criminal damage).

¶3            Chavez received and signed a copy of the Uniform
Conditions of Supervised Probation for each count, and he received and
signed a copy of the Conditions of Intensive Probation for each case. The
court advised Chavez that if he violated any of the conditions of his
probation, his probation could be revoked and he could be sentenced to
prison; Chavez acknowledged the conditions. Chavez’s probation officer
clarified the probation terms with an Implementation on June 8, 2016,
ordering Chavez to “[a]ctively participate in and complete any
recommended counseling or treatment” at Little Colorado Behavioral
Health Center and to “pay a minimum of $92.00 per month for probation
fees, fines, and/or restitution.” Chavez signed the Implementation to
acknowledge receipt of the additional terms.



1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                       2
                          STATE v. CHAVEZ
                          Decision of the Court

¶4           Nevertheless, Chavez violated the conditions of his probation
on multiple occasions over the following eighteen months. Apache County
Adult Probation Officer Cole (“APO Cole”) filed a petition to revoke
probation on October 23, 2017, alleging four violations:

                                COUNT I

      Term # 6. I will report to the APD [Adult Probation
      Department] within 72 (or 72) hours of sentencing, absolute
      discharge from prison, release from incarceration, or
      residential treatment and continue to report as directed. I will
      also keep APD advised of progress toward case plan goals
      and comply with any written directive of the APD to enforce
      compliance with the conditions of probation. I will provide
      sample for DNA testing if required by law.

      Violation: Mr. Chavez refused to sign an Implementation
      dated October 10, 2017.

                                COUNT II

      Term # 14. I will seek, obtain, and maintain employment, if
      legally permitted to do so, and/or attend school. I will inform
      the APD of any changes within 72 hours.

      Violation: Mr. Chavez has failed to be employed from June 9,
      2016 to November 13, 2017.

                                COUNT III

      Term # 15. I will be financially responsible by paying all
      restitution, fines, and fees in my case as imposed by the Court.
      I understand, if I do not pay restitution in full, the Court may
      extend my probation.

      Violation: The defendant failed in CR#2014-204 and
      CR#2015-206/251 to make monthly payments for July,
      August, September, October, November, and December 2016;
      and for January, February, March, April, May, June, July,
      August, and September 2017.

                                COUNT IV

      Term # 22. I will enroll in and successfully complete drug
      screening, treatment, and counseling[.]


                                     3
                           STATE v. CHAVEZ
                           Decision of the Court

      Violation: The defendant failed to enroll in and successfully
      complete Moral [Reconation] Therapy2 and/or Relapse
      Prevention Group.

¶5            On July 17, 2018, the superior court held a probation violation
hearing. APO Cole testified that as to Count I, on October 10, 2017, Chavez
refused to sign an implementation, requiring Chavez to gain part-time
employment within sixty days and to begin making timely monthly
payments. As to Count II, APO Cole testified Chavez had not been
employed since June 2016, and refused to search for a job. For Count III,
APO Cole stated Chavez owed $11,859.68 in restitution and $3,815.68 in
fines and fees, missing every monthly payment minimum. Finally, as to
Count IV, APO Cole testified Chavez never enrolled in or completed Moral
Reconation Therapy or a relapse prevention group as recommended by
Little Colorado Behavioral Health Center.

¶6             Chavez’s mother testified that Chavez suffered from mental
illness, that he required her assistance before signing documents, and that
he was unable to pay $92 per month. Chavez also presented a letter in
which his treating psychiatrist, Dr. Gibson, opined that Chavez will not “be
able to maintain employment in the future for at least one year and
longterm [sic]/lifelong.”

¶7            Chavez elected to testify at the hearing. He stated that he did
not sign the October 2017 implementation because his mother was not
present to explain it to him. He claimed he could not work because of his
memory problems. Chavez testified that, at his original sentencing, the
court told him he only had to pay $5 per month. He also claimed he could
not pay more than $5 per month and still afford clothes, shoes, or food.
Finally, Chavez said he did not remember being ordered to complete Moral
Reconation Therapy or attend a relapse prevention group. On cross-
examination, Chavez conceded that he had never made a $92 payment and
never attended therapy.




2     Moral Reconation Therapy is a “cognitive-behavioral program for
substance abuse treatment and offender populations.” See generally,
http://www.moral-reconation-therapy.com/. (last visited 09/12/19).


                                     4
                            STATE v. CHAVEZ
                            Decision of the Court

¶8             The superior court found that the State proved, by a
preponderance of the evidence, that Chavez violated Counts I, II, III, and
IV. At the disposition hearing, the court found that Chavez had refused to
sign the implementation, failed to pay fines or restitution, and failed to
make “really sufficient efforts to maintain or try to get money or
employment.” The court concluded that Chavez had not “made a good
faith effort to successfully complete probation.” The court revoked
Chavez’s probation and imposed presumptive, consecutive terms between
cases and concurrent terms on counts in the same case, totaling 18.5 years
in prison. Chavez timely appealed, and 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),   13-4031,     and
-4033(A)(1).

                                  DISCUSSION

       I.     Willful Violation

¶9             Chavez first argues that the revocation was in error because
he did not willfully violate the terms of probation. A probation violation
must be willful. State v. Alves, 174 Ariz. 504, 506 (App. 1992). Probation
cannot be revoked for violation of a rule that the probationer cannot “be
expected to be aware of.” Id. Therefore, the terms of probation must be
provided in writing. Id. at 505-06; see Ariz. R. Crim. P. 27.1 and 27.8(c)(2).
We review a superior court’s decision to revoke probation for an abuse of
discretion and will uphold the court’s findings unless they are arbitrary or
unsupported by any theory of the evidence. See State v. Portis, 187 Ariz. 336,
338 (App. 1996); State v. Sanchez, 19 Ariz. App. 253, 254 (1973); State v.
Vaughn, 217 Ariz. 518, 521, ¶ 14 (App. 2008). The superior court is in the
best position to assess the credibility of witnesses and to resolve any
conflicts in the evidence. See State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App.
1999).

¶10           Chavez’s terms of probation were provided to him in writing
in the Uniform Conditions of Supervised Probation and the June 8, 2016
Implementation. He signed and acknowledged receipt of these terms.
Term #6 warned him that he had to follow any written directive by APD;
therefore, his failure to sign the October 10, 2017 Implementation was a
violation. The superior court found that Dr. Gibson’s opinion regarding
Chavez’s ability to work was “speculat[ive]” and did not create an
exception for the requirement that Chavez look for or maintain
employment. The court then rejected as unpersuasive Chavez’s contention




                                      5
                            STATE v. CHAVEZ
                            Decision of the Court

that it previously reduced his monthly payments to $5. 3 In addition to the
June 8 Implementation, APO Cole testified that she spoke to Chavez about
attending counseling at Little Colorado Behavioral Health Center. Further,
the evidence of the signed previous implementation orders, his multiple
insufficient $5 payments toward his restitution and fees, and his attendance
at Little Colorado Behavioral Health Center for other services shows that
Chavez was aware of these terms. Thus, the court did not abuse its
discretion by finding that Chavez willfully violated the terms of his
probation.

       II.    Bearden-Robinson Findings

¶11            Chavez next contends that revocation was in error because
the superior court failed to make findings as to the reasons for his failure to
pay restitution and fees in accordance with Bearden v. Georgia, 461 U.S. 660
(1983) and State v. Robinson, 142 Ariz. 296 (App. 1984). Because Chavez did
not object at the probation violation hearing, our review is limited to
prejudicial, fundamental error. State v. Davis, 226 Ariz. 97, 100, ¶¶ 11-12
(App. 2010); see State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).

¶12            Before revoking probation for a failure to pay fines, fees, or
restitution, “a sentencing court must inquire into the reasons for the failure
to pay.” Bearden, 461 U.S. at 672; see Robinson, 142 Ariz. at 297. A
probationer’s willful refusal to pay or a failure to make “sufficient bona fide
efforts” to pay restitution can justify a term of imprisonment. Bearden, 461
U.S. at 672. On the other hand, “[i]f the probationer could not pay despite
sufficient bona fide efforts to acquire the resources to do so, the court must
consider alternate measures of punishment other than imprisonment.” Id.
In determining whether there has been a bona fide effort, “the sentencing
court can consider the entire background of the defendant, including his
employment history and financial resources,” and whether the defendant
has complied with the other terms of probation. Id. at 670.



3      Neither party submitted a record that included a transcript of the
change of plea or sentencing hearings. As such, we presume that those
transcripts support the actions of the superior court. Bolm v. Custodian of
Records of Tucson Police Dep’t, 193 Ariz. 35, 41-42, ¶ 19 (App. 1998). In
addition, the same judge presided over all of these proceedings, and at the
probation violation hearing, the judge dispelled Chavez’s contention and
observed that he has never authorized such payment terms—particularly
in the face of written probation terms to the contrary—to convince a
defendant to enter a plea agreement.


                                      6
                           STATE v. CHAVEZ
                           Decision of the Court

¶13            The superior court made the appropriate findings regarding
Chavez’s failure to pay his fees and restitution before revoking probation.
The court heard testimony from Chavez, his mother, and APO Cole
regarding Chavez’s financial resources and his efforts to find employment.
The court considered Chavez’s efforts to pay the fees and restitution,
including his employment history, but found Chavez had not “made really
sufficient efforts to maintain or try to get money or employment.” The
court also found that Dr. Gibson’s letter did not support any finding that
Chavez should be exempt from searching for or maintaining a job. While
Chavez did make some payments, he only paid $60 over eighteen months,
and he failed to make payments for several months. C.f. Robinson, 142 Ariz.
at 297 (finding that probationer made bona fide efforts when he paid $1,500
toward his fines and restitution over two years). Finally, the court
considered Chavez’s entire background and compliance with the other
terms of probation: “[O]ver the course of your life, you’ve shown that
you’re unwilling to be a law-abiding citizen. When you were given the
chance to be on probation, you showed you were unwilling to comply.”
The superior court properly considered Chavez’s reasons for failure to pay
restitution and fees. There was no error.

       III.   Course of Performance

¶14           Chavez also argues that the superior court erred by not
applying contract law standards to the plea agreement. Specifically,
Chavez argues that the court failed to consider the course of performance
created by APD’s acceptance of his $5 payments over many months and by
the long-standing practice of his mother reading implementations to him
before he signed the paperwork. Because Chavez did not raise this issue at
the probation violation hearing, our review is limited to prejudicial,
fundamental error. Davis, 226 Ariz. at 100, ¶¶ 11-12; see Henderson, 210 Ariz.
at 567, ¶¶ 19-20.

¶15           We find Chavez’s course of performance argument
unpersuasive and inapposite to the writing requirements of Arizona Rule
of Criminal Procedure 27. Any term of probation must be provided in
writing to the probationer. See Alves, 174 Ariz. at 506 (citing Ariz. R. Crim.
P. 27.1 and 27.7(c)(2)). This Rule also applies to any modified or clarified
term of probation. Ariz. R. Crim. P. 27.3(d). APD’s acceptance of Chavez’s
$5 payments was not in writing and therefore was not a modification of his
monthly requirement to pay a minimum $92. Similarly, although APD
permitted Chavez’s mother to read some documents before Chavez signed
them, this practice did not create a new term of probation requiring her



                                      7
                            STATE v. CHAVEZ
                            Decision of the Court

presence before every new document could be presented to Chavez for
review and signature. Thus, we find the superior court did not err.

       IV.    Specific Findings

¶16            Finally, Chavez contends that the superior court erred by
failing to make specific findings on the record. See Ariz. R. Crim. P.
27.8(b)(5) (“If the court finds that the probationer committed a violation of
a condition or regulation of probation, it must make specific findings of the
facts that establish the violation and then set a disposition hearing.”).
Chavez failed to object at the disposition hearing, however, and he failed to
develop the argument on appeal; accordingly, we find the argument
waived. See Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶¶ 20-
21 (App. 2007) (“[A] party may not ‘sit back and not call the trial court’s
attention to the lack of a specific finding on a critical issue, and then urge
on appeal that mere lack of a finding on that critical issue as a grounds for
reversal.’” (quoting Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co.,
26 Ariz. App. 265, 271 (1976))); State v. Bolton, 182 Ariz. 290, 298 (1995)
(“Failure to argue a claim on appeal constitutes waiver of that claim.”).

                               CONCLUSION

¶17          For the foregoing reasons, the revocation of Chavez’s
probation and the resulting sentences are affirmed.




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




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